September 11, 2018 • Jerod Gunsberg, Los Angeles Criminal Defense Lawyer
A new California law allows an expanded category of people to have their arrest records sealed. Read on to see if this applies to you.
Under recently enacted California Penal Code Section 851.91, an arrestee can have his or her arrest record sealed in any of the following services:
- You were arrested, but no charges were ever filed by a prosecuting agency
- A prosecuting agency filed charges, but the charges were dismissed before you were convicted
- A prosecuting agency filed charges, but you were found “not guilty” at trial by a judge or a jury
- You were convicted of a criminal offense, but you successfully appealed
However, you will not be eligible to have your arrest records sealed in any of the following circumstances:
- You were arrested but a prosecuting agency has not yet filed charges, and your offense is still within the statute of limitations. It is also disqualifying if a prosecutor can re-file your case for any reason.
- If you intentionally evaded police or prosecutor efforts to pursue your case. This means if you fled the jurisdiction, used a false identity, or attempted other means of obfuscation while fleeing law enforcement.
In general, a petition to seal an arrest record brought under this statute is supposed to be granted by the judge as a “matter of right.” In other words, if someone qualifies under one of the four categories for record sealing under California Penal Code Section 851.91(1), they are entitled to have their arrest record sealed automatically.
If I Qualify, Will the Court Automatically Order My Arrest Record Sealed?
When passing the law, the California legislature said that sealing of records, for all qualified applicants, should be granted as a “matter of right.” However, like most things in the law, there are exceptions.
Even if you meet the qualifying criteria, the court can still deny your petition to seal your records if you have a substantial criminal record, or if you have a history of domestic violence against your spouse, significant other, or children. If you have two or more convictions or at least five arrests for separate crimes which all occur within three years from another conviction or arrest, the court could deny sealing. You can still argue that your records should be sealed within the “interests of justice,” and the court will look at your overall life circumstances to decide whether to grant it. This California law should not be confused with an expungement case since expungements do not clear your criminal record and only provide an amendment saying your charge was reduced or dismissed.
If My Arrest Record Gets Sealed, What Does That Mean?
It means that you can honestly answer that the arrest never occurred. It’s as if it never happened. But…of course there are exceptions. Here they are:
- If you are asked directly if you have been arrested on an application for any public office, law enforcement, any state or local agency or entering into a contract with The California State Lottery Commission, then you must disclose the arrest.
- You arrest can still be used against you as a “prior conviction” in applicable cases.
- It may also impact your right to own or possess a firearm.
Bottom Line: If you or a loved one are interested in finding out if you qualify to have your arrest record sealed, contact The Law Offices of Jerod Gunsberg at (323) 633-3423 or via this confidential contact form.