Sealing Arrest Records in California Just Got Easier
Summary of changes to California's Laws in 2018 making it easier for arrestees not convicted of crimes to seal their arrest records.
General Summary of the Law on Sealing Arrest Records in 2018Today, Attorney Brian Michaels became one of the first to file a Motion to Seal the Arrest Record of a client under newly enacted statutes that makes it significantly easier for qualified individuals to seal their arrest records permanently.
Under the former statutory guidelines, found in California Penal Code Section 851.8, the law made it difficult if not impossible for individuals arrested for a crime, which did not result in a conviction to seal their arrest records, making them undiscoverable by employers or others who may be conducting a background search on an individual. Many people who are arrested, but not prosecuted, or whose cases were dismissed or who won at trial, were unaware their arrest records stayed with them potentially forever. For these unfortunate people the former statutory scheme only gave them two years from the arrest to seek to have their records destroyed, unless they showed good cause, meaning it was really up to a Judge.
Worse, still, under the old scheme the waiting periods to get this relief were extraordinarily long, required that you first go to the law enforcement agency who arrested you, and shifted the burden to show the court the arrestee was innocent just to qualify for this kind of relief. Very few people qualified and defense practitioners could rarely get people this kind of relief, wherein all records of their criminal case will be eradicated.
Thanks to Governor Jerry Brown, who signed into law, Senate Bill 393 in October of 2017, all of this changed and few if any people in the courts are even aware of it. Senate Bill 393 added or amended several new code sections to the California Penal Code that essentially, in most situations, allow an arrestee to have their criminal record sealed as of right where there is no conviction. No longer is the burden on the person arrested to show they were innocent and there is no time bar to bring the motion.
Attorney Michaels filed a motion today under California Penal Code Section 851.91 today in the Los Angeles County Superior Court; one of the first of its kind. Under this section of the newly enacted law, if the statute of limitations has run on the underlying crime, and no case was pursued an arrestee can now have their arrest record sealed as of right, meaning there is really no discretion not to grant the relief. That same section also allows for sealing if a case was filed by a prosecuting agency and was either dismissed after filing or the case cannot otherwise be refilled under a variety of factual scenarios. The burden to oppose these motions now shifts to the government and law enforcement can no longer slow or defeat the process.
Sadly, and it is a fact of defense practice, there are times that law enforcement will make an arrest that is not justified, which ultimately does not get pursued and the individual put through the arrest process will have their job or career or licensing prospects significantly impacted. Many people don't bother to pursue the relief under the old statutes because they are time consuming motions for a lawyer and many are turned away by the fees involved and the low chance of success.
Not all people qualifyThe new laws are not completely inclusive. There are still many people who do not qualify for the relief or who have a higher burden to get the relief. Particularly individuals with a pattern of domestic violence may not be able to get this form of relief. Courts have discretion to deny these people from having their records sealed. Further, if you were convicted, this relief does not apply. It does however now apply to certain people who completed Diversion or Diversionary sentences as well, radically changing the law in the area of Criminal Diversion.
Senate Bill Number 393 has now codified California Penal Code Sections 851.87, 851.90, 851.91 and 851.92. The former statutory scheme still appears to be a remedy as well for arrestees. With the passage of these new governing statutes thousands of Californians who were arrested for crimes, and not convicted can now in most cases have their arrest records sealed as of right if they were not convicted. If you think you qualify for this kind of relief and want to seal your arrest records, you now have significant rights to do so and urge you contact an attorney to pursue the relief which now requires, in most cases, only 15 days notice before you can see a Judge and move towards a permanent sealing and a brighter future.
Brian Michaels, Esq
January, 30, 2018