If you were arrested in California but were never convicted, you are most likely eligible to have your arrest record sealed and destroyed. Having your arrest record sealed is a great way to clear your name and ensure that all parts of your arrest record, like police reports and booking photos, won’t show up on most criminal background checks done by potential employers, landlords, or anyone else.

If you are innocent, you have a right to live your life without the unfair stigma or discrimination of having been arrested for a crime for which you were never convicted. A California defense attorney can answer your questions and help you through the process of sealing your record and defending your rights.

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What is the difference between sealing an arrest record and sealing a juvenile record?

While sealing an arrest record and sealing a juvenile record sound similar, they are actually two completely different processes. You may be eligible to have your juvenile record sealed if:

You are currently an adult or the jurisdiction of the juvenile court has been terminated for at least 5 years
No civil litigation is pending regarding the incident on your record
You haven’t been convicted of a crime of moral turpitude as an adult

Regardless of whether you are looking to have your arrest record or your juvenile record sealed, your defense attorney can offer the assistance you need.

What are the benefits of sealing my arrest record?

Sealing your arrest record can protect you from unfair stigma and discrimination from employers, insurance companies, licensing agencies, potential romantic partners, and anyone else who is willing to do a background check. That’s because your criminal record is public record, which means it is accessible to anyone.

Sealing your arrest record means that all parts of the record including court records, investigative reports, fingerprints and booking photos will no longer be part pf the public record. They will, however, still be able to be accessed by certain members of the state and criminal justice agencies in a limited capacity.

Who is eligible to have their arrest record sealed in California?

Under California Senate Bill 393, in most cases, a person who was never convicted of the crime for which they were arrested is able to have their record sealed as a “matter of right,” meaning that they are automatically eligible. A person is considered not to have been convicted of a crime if:

They were acquitted or found “not guilty” in a jury trial
No criminal charges were ever filed against them
Criminal charges were filed against them but were eventually dismissed
Their conviction was overturned or vacated
They completed a pre-sentencing program or pretrial diversion (such as a deferred entry of judgment)

Who is NOT eligible to have their arrest record sealed?

Having an arrest record sealed is not considered a matter of right in some cases where a criminal history and/or certain types of crimes are involved. Under California law, a person is not eligible to have their arrest record sealed if any of the following applies to them or their case:

The arrest was for a murder charge or any other crime for which there is no statute of limitations and they were not found innocent in a trial or acquitted
The reason that the person was not charged was because they evaded law enforcement
They are still able to be charged with an offense on which they arrest was based
They engaged in identity fraud in order to evade prosecution and has been charged with identity fraud
Their criminal record shows that they’ve had two or more convictions or five or more arrests within a three-year period of child abuse, elder abuse, or domestic abuse.

If the last scenario applies to them, a person may still legally petition to have their arrest record sealed if they believe that they can demonstrate that doing so would “serve the interests of justice.” A judge may decide to grant the sealing of the arrest record based on a number of factors including evidence of the petitioner’s good character or hardship that the petitioner has endured as a result of the arrest.

If you have been convicted of a crime based on an arrest, you are not eligible to have your arrest record sealed under Penal Code 851.87 PC, but you may be eligible to have your conviction expunged under California Penal Code 2103.4 PC. Expungement is a more difficult process than having an arrest record sealed, and one that should be undertaken with the help of an attorney.

What is the process of sealing my arrest record?

Whatever the details of your arrest and criminal background, it is important to have an attorney assist you in the process of having your arrest records sealed and destroyed.

It is possible that a judge may deny your motion and possible prevent you from filing future petitions to have your records sealed, particularly if you are petitioning based on the “interests of justice” and not as a “matter of right.”

A skilled attorney can make sure that all of your paperwork is filled out and filed properly so that your motion has the best case of being granted the first time. The typical process goes as follows:

1. File a petition with the court

In order to have your arrest record sealed, you must file a petition in either:

The court in which the charges based on the arrest were filed
The city or county in which the arrest occurred (if charges weren’t filed)

The petition must contain the following information:

The petitioner’s name
The petitioner’s date of birth
The date of the arrest on which the petition is based
The alleged offense on which the arrest or charges were based
The name of the law enforcement agency that made the arrest
The city and county in which the petitioner was arrested
The case number or other identifying information related to the case or arrest
A statement from the petitioner asserting that they are entitled to having their record sealed as either a “matter of right” or “in the interest of justice.”
If the petitioner states that they are entitled to sealing their record in the interest of justice, they must also provide a statement detailing how granting the petition would do so.

Once the petition is completed, it must then be served on both the law enforcement agency that made the arrest and the prosecuting attorney of the city or county in which the arrest was made.

2. A hearing may be held

A person’s petition to have their arrest record sealed may be granted or contested by the district attorney. If it is contested, a hearing will then be scheduled by the court in order for a judge to determine whether granting the person’s petition will serve the interests of justice. The petitioner may or may not be required to personally appear in court for the hearing, depending on the county in which they live. If they are not required to attend, their attorney may appear on their behalf.

How long does it take to have an arrest record sealed?

Once a petition has been filed, it typically takes about 90 days for a court order to seal a person’s arrest record to be issued.

Once the court order has been issued, the law enforcement agencies that made the arrest, the California Department of Justice, and the law enforcement agency that handles the master criminal history records will be notified within 30 days.

Once the relevant agencies have been notified, the criminal and court records will be updated and officially sealed and stamped on all master copies.

How long after my arrest do I have to get my record sealed?

Under the new Penal Code 851.87, there is no deadline or time limit for filing a petition.

In general, it is recommended that a petition be filed as soon as there is no longer a possibility for the prosecutor to file or refile charges based on the arrest. Your attorney can best assist you in determining when you are eligible to have your record sealed and when is the appropriate time to file.

What do I do if my sealed arrest record is released?

A sealed arrest record is only legally allowed to be disclosed to the person who was arrested or a criminal justice agency. If a sealed arrest record is illegally released, the person to whom the record belongs may be able to sue for compensatory or punitive damages and the guilty party may be subject to a civil penalty of $500-$2,500 per violation.

If you or a loved one were arrested for an alleged crime but were never convicted, you may be able to have the arrest record sealed under California Penal Code 851.87 PC. As a California criminal defense attorney with over 40 years of experience representing clients, I can help you file a petition and navigate the process of sealing your arrest record. Don’t let your future be unnecessarily clouded by an arrest. Call my firm today to schedule a free consultation – 800-834-6434.