Arrests remain on your criminal record even when they don’t result in a conviction, so sealing your criminal record is highly beneficial to anyone applying for a new job, enrolling in school, or seeking new certifications or other career advancing opportunities.
A 2012 study found that 69 percent of organizations use criminal background checks on all candidates and less than 60 percent of those allow candidates to explain negative results.
Having an open arrest record on your criminal history can lead to all kinds of potential trouble. For example, current California law prohibits employers from asking an applicant about a prior arrest that did not lead to a conviction. However, many employers simply refuse to consider any applicant who has anything on their rap sheet.
In addition to employment, a great many other potential future opportunities require a clean background check. But prior to 2018, a person who had been arrested but never convicted of a crime in California did not have a good option for sealing their criminal record.
SB 393: The Consumer Arrest Record Equity Act
The good news is that on October 12, 2017, the California Legislature passed Senate Bill 393, the Consumer Arrest Record Equity (CARE) Act, which offers help for those arrested but not convicted of a crime. This new law will take effect on January 1, 2018.
The CARE Act added Section 851.91 to the California Penal Code. Using the new procedures outlined in this statute, a person who was arrested but ultimately not convicted of a crime may now petition the court to have his or her California arrest record completely expunged.
Who qualifies for expungement under the CARE Act?
California Penal Code Section 851.91 now provides a mechanism to seal most open arrest records. Expungement is now allowed for any past “arrest” where that arrest “did not end in a conviction.”
The CARE Act defines the phrase, “did not end in a conviction” as meaning one of the following scenarios:
- An arrest was made, but no charges were ever filed against the person.
- Charges were filed, but no conviction occurred because the charges were later dismissed.
- Charges were filed, but the individual was acquitted at a jury or court trial.
- An individual was convicted of a crime, but that conviction was later reversed or vacated on appeal.
The new statute does not define “arrest.” In most cases, it will be obvious that a person was arrested. However, there may still be some open questions for the courts to later rule on. (For example, whether the statute applies to someone who was arrested by way of a citation as opposed to being physically booked.)
In any event, millions of people who were arrested in California may now be entitled to completely expunge their criminal record.
Who does not qualify for expungement under the CARE Act?
There are limits to this new expungement law. A person is not eligible to seal their arrest record under California Penal Code Section 851.91 if any of the following circumstances applies:
- He or she could still be charged with any of the offenses upon which the arrest was based. (In other words, the Statute of Limitations has not run out, or the case could be refiled by the DA for any reason)
- The person was charged with Murder or any other serious offense where there is no Statute of Limitations, except when the person has been acquitted or found factually innocent of the charges.
- The person “intentionally evaded” law enforcement efforts to prosecute the arrest. (For example, by absconding from the jurisdiction in which the arrest took place)
- The person, “intentionally evaded” law enforcement efforts to prosecute the arrest by engaging in identity fraud and was subsequently charged with a crime for that act of identity fraud.
What about California’s Statute of Limitations?
The California CARE Act does not apply if charges can still be filed by the District Attorney’s office. This question usually depends on whether or not the Statute of Limitations (also known as the SOL) has run on the charges that could have been filed from the arrest.
The Statute of Limitations in California is normally based on the severity of the penalty for the crime. The most common SOL rules are as follows:
- Misdemeanors – Generally a 1 year SOL from the offense date.
- General Felonies – The SOL is normally 3 years. (California PC 801)
- More Serious Felonies – For felonies punishable by state prison for eight years or more, the SOL is 6 years from the commission of the offense. (California PC 800)
There are many exceptions and variables to these general rules. For a number of crimes against children, the SOL is “tolled” (doesn’t start) until the child is 21 years old. There are also major exceptions to the California Statute of Limitations when it comes to sex crimes.
Finally, not all crimes are even governed by a Statute of Limitations. For example, there is no Statute of Limitations for murder or other extremely serious crimes. California PC 799 states that “Prosecution for an offense punishable by death or by imprisonment in the state prison for life or for life without the possibility of parole, or for the embezzlement of public money, may be commenced at any time.”
As you can see, this is a complex area of the law and it is often wise to consult with an expungement lawyer as to the exact SOL that applies for an arrest.
Are there any exceptions to California SB 393?
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.
However, when the legislature was passing California Senate Bill 393, they did not want to guarantee that persons with a lengthy criminal history could automatically seal their arrest record. Therefore, in certain circumstances the person making the application has to also show that the decision to seal their arrest record would also be, “In the interests of Justice.”
The California CARE Act requires this additional showing for any persons whose criminal history demonstrates a “pattern” of domestic violence, child abuse, or elder abuse.
California Penal Code 859.91 (2)(A)(ii) defines “a pattern” as meaning two or more convictions, or five or more arrests, for separate offenses occurring on separate occasions within three years from at least one of the other convictions or arrests.
In determining whether the interests of justice would be served by sealing an arrest record in this situation, the court may consider numerous relevant factors. These include, but are not limited to: hardship to the petitioner caused by the arrest, evidence that the petitioner has rehabilitated and is now a person of good character, or other evidence about the facts and circumstances of the arrest.
Effects of an expungement under California SB 393
If the record of your arrest has been sealed under this section, your arrest is deemed, “not to have occurred.” That means you can answer, “No” to the question of whether you’ve ever been arrested.
There are still a few areas in which the arrest can still be used even when sealed:
- The sealed arrest may still be alleged as a “prior conviction.” For example, in DUI cases.
- A person who has their arrest record sealed must still disclose the arrest in response to any direct question contained in a questionnaire or application for public office, for employment as a peace officer, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
- The sealing of an arrest pursuant to this section does not affect a person’s rights when it comes to their right to own, possess, or have in his or her custody or control any firearm.
- The sealing of an arrest pursuant to this section does not affect any prohibition from holding public office that would otherwise apply under law as a result of the arrest.
Information needed to seal your arrest record in California
California Penal Code Section 851.91 requires that the following information be included in a petition to seal an arrest record:
- The petitioner’s name and date of birth.
- The date of the arrest for which sealing is sought.
- The city and county where the arrest took place.
- The law enforcement agency that made the arrest.
- Any other information that will help “identify the arrest” in question. Examples might be the police report case number or the booking number that was used by the prosecuting attorney when reviewing the arrest.
- A list of the offenses upon which the arrest was based or, if an accusatory pleading was filed based on the arrest, the charges in the accusatory pleading.
- A statement as to whether the petitioner is entitled to have his or her arrest sealed as a matter of right or is requesting to have his or her arrest sealed in the interests of justice. If one is asking that the motion be granted “in the interest of justice” additional declarations are needed explaining how the interests of justice would be served by granting the petition.
Ready to seal your California criminal record?
If you have been wanting to clear up an old blemish on your record, an excellent New Year’s resolution is to take care of it in 2018. If you have any questions about whether you qualify under the statute, feel free to call us at (408) 920-9720 or email us to set up your free half hour consultation.Back to Expungement Practice Area