Unfortunately, serving your time and paying your fines may not be the last “penalty” you face because of a criminal conviction in California. A conviction remains on your criminal record and follows you for the rest of your life. A criminal record could impact aspects of your life you never imagined.
Your criminal record may be automatically sealed if your criminal conviction occurred in California. Recent laws passed by our legislature have resulted in sealing many arrest records, so they are not accessible to the public. Even if your record is not eligible to be automatically sealed, you may still apply to the court for the record to be sealed or expunged.
Our San Jose criminal defense lawyers provide this step-by-step guide for how to seal an arrest record in California. If you have questions or need help, we encourage you to contact our law firm for a free consultation with an attorney.
What Does It Mean to Seal a Criminal Record in California?
Arrests are included in the public record in California. Therefore, anyone can look at your criminal record to see that you were arrested. While landlords and employers should not make decisions based on a prior criminal history, many turn people away when they see a criminal record, even though the person was never convicted.
Sealing an arrest record means it will not appear on most criminal background checks. Your arrest will be deemed not to have occurred once it is sealed. Therefore, you can answer “no” when asked whether you have been arrested, which can be beneficial when completing applications for professional licenses, employment, and housing.
Requirements for Sealing Arrest Records in California
The current law for sealing records began with California Senate Bill 393 in 2017. The law is not codified in California Penal Code §851.87. According to the law, individuals can have their arrest records sealed as a matter of right if:
- The arrest did not result in criminal charges being filed;
- Criminal charges were filed, but they were later dismissed;
- The defendant was acquitted (found not guilty) after a trial;
- The defendant’s conviction was overturned or vacated on appeal; or,
- The defendant completed a pre-sentencing or pretrial diversion program.
There are some exceptions to the right to have your arrest record sealed. Individuals with a history of arrests for elder abuse, child abuse, or domestic violence are not permitted to seal their records as a matter of right.
Arrest Records That Might Not Be Eligible to Be Sealed in California
In addition to a criminal record for abuse or domestic violence, several other factors make a person ineligible to have their arrest records sealed as a matter of fright. You are not eligible to have your arrest record sealed in California if:
- The arrest was for murder or other crime which has no statute of limitations for prosecuting the crime. The arrest record could be sealed if you were found factually innocent or acquitted of the charge.
- You evaded efforts by the state to prosecute you for the charges by using identity fraud, and you were charged with identity fraud.
- You were not charged with a crime because you evaded the police to avoid arrest, such as leaving the state.
- You could be charged with the offense in the future because the statute of limitations has not expired.
Sealing a record is only available if you were not charged with a crime, were acquitted of a crime, or the charges were dismissed. If you were convicted of a crime, you may still have your criminal record cleaned if you are granted an expungement.
Step-by-Step Guide to Sealing Your Arrest Record in California
Changes in California law have resulted in many arrests and convictions being eligible to be automatically cleaned. If not, you can petition the court to seal or expunge our record.
Automatic Relief From Criminal Record
Before you file a petition to seal your arrest record, you should verify whether your arrest record was automatically sealed. Because of the Clean Slate Act (SB 731), many people have their arrest and conviction records automatically cleared. The law became effective as of July 1, 2023.
There are specific waiting periods and conditions. Examples of arrest records and convictions that can be cleared under the Clean Slate Act include, but are not limited to:
- Misdemeanor Arrests – Sealed after 1 year with no further criminal charges
- Felony Arrests – Sealed after three years with no further arrests
- Felony and Misdemeanor Dismissals – Offenses that were dismissed should be sealed immediately
- Misdemeanor Probation – Sealed after probation is complete
- Felony Arrest with No Charges – Sealed three years after the arrest
- Felony Arrest with Probation – Sealed after probation is completed, except in cases involving violent, serious, or sex offender crimes
- Felony Conviction with No Probation – Sealed four years after case closes, exception in cases involving sex offenders, violent, or serious crimes
Process to Seal Your Arrest Record in California
If your arrest record cannot be automatically sealed, you may petition the court to seal the record. You may want to work with a criminal defense attorney to reduce the risk of errors and mistakes causing your petition to be denied.
The basic steps to petition the court to seal your arrest record are:
Prepare the Petition to Seal Arrest Record
The petition to seal an arrest record must contain specific information, including:
- Your name and date of birth
- The date of the arrest you want to be sealed
- The city and county where your arrest occurred
- The name of the law enforcement agency responsible for the arrest
- Information identifying the arrest, including the case number, court number, etc.
- The alleged offenses for the arrest or the basis for the charges filed
- A confirmation that you seek to seal your arrest record based on a matter of right or in the best interests of justice.
If you petition the court to seal an arrest record because it would be in the best interests of justice, you must also include your reasoning.
In other words, you must explain how sealing your arrest record would be in the interests of justice. You may want to include affidavits and declarations by your employer, religious leader, and other respectable community leaders to support your allegations that justice would be served by sealing your arrest record.
File and Serve the Petition
You must file your petition with the court where the charges were filed. If charges were not filed, the petition is filed with the city or county that made the arrest. The petition must be legally served on the prosecuting attorney for the city or county where the arrest was made and the law enforcement agency that made the arrest.
The Hearing
If the prosecutor objects to your petition, the court schedules a hearing. The judge reviews your arrest record and other documents at the hearing to decide whether justice will be served by sealing your arrest record.
Your defense lawyer can present evidence supporting your petition, but the prosecutor can also present evidence for their objection. The judge bases the decision on the evidence presented to the court.
Judges have broad discretion to make these decisions. Therefore, you want to present the strongest case to the court. Consult with an experienced San Jose criminal defense attorney before deciding what is in your best interest.
Learn More About Criminal Defense During a Free Consultation
If you need help sealing your criminal records or defending current changes, contact Ahmed & Sukaram Criminal Defense Attorneys today at (408) 217-8818. Our San Jose criminal defense lawyers explain your legal rights and options for defending yourself against criminal charges.