Sealing an Arrest Record

The Society for Human Resource Management (SHRM), conducted a research that found that about 69% of companies and organizations conduct background checks on their candidates. They found that these background checks were conducted by companies to ensure that the person hired is “safe” to work with other employees. While background checks are useful, the study found that approximately 58% of companies allowed applicants to explain the content of the criminal check before a hiring decision is made. This means that 42% of applicants are never given the chance to explain the information on their criminal record. The number of individuals who are denied a job due to the information of their background check is substantially high.

If you are arrested and charged in the state of California, the information regarding your arrest and the court records become public information. An arrest record and court record will show up on background checks even when the arrest was discharged or even if the trial was won or dismissed. Once you are arrested or charged in the state of California, the record will remain in your history. Many individuals who undergo an arrest may be unaware that the record is reflected in their history. Individuals may experience complications when filling out job or housing applications. If your record reflects an arrest, you will have to check “YES” when asked if you have been arrested. Regardless of your specific information, the person requesting your background check has the potential to discriminate against you and deny you a job offer or a housing opportunity.

If you have been arrested in the state of California, you have the opportunity to seal your arrest from public access under the California Senate Bill 393. When sealing an arrest record, the information pertaining to the arrest becomes private information that may no longer be accessed through public records. Upon sealing an arrest, the information is only accessible through court orders and by law enforcement agencies. While the record is not completely erased, it becomes private information that cannot be accessed by unauthorized personnel. Once your record is sealed, your arrest record is stamped with “Arrest Sealed: Do Not Release Outside of the Criminal Justice Sector”. Upon being sealed only law enforcement agencies and the state of California can access the information pertaining to your arrest or court records.

As of January 1st, 2018 Californians have a new type of remedy to seal their arrest that is promised under California Senate Bill 393. Senate Bill 393 was passed on October 12, 2017, and has modified the California Penal Code adding codes that substantially facilitate the arrest record sealing process for individuals who were arrested but never convicted. Senate Bill 393 otherwise known as the Consumer Arrest Record Equity (CARE) Act amended the California Penal Code to include Penal Code 851.91. Under the new filing procedures, innocent individuals who want their arrest records sealed can file under the new law as a 'matter of right'.

Prior to the Consumer Arrest Record Equity (CARE) Act, individuals that wanted to seal their arrest record had to do so following the procedures underlined in California Penal Code 851.87. Under this penal code, individuals had to prove that they were 'factually innocent' before having their petition granted. The procedure to seal an arrest under PC 851.87 required the filing of a petition to the supreme court where the individual must have successfully completed a pre-filing diversion program. The process under PC 851.87 is a much longer process that requires multiple steps which is why many individuals have done nothing about their arrest record. Individuals with juvenile arrest records and other court records now have the opportunity to seal their arrest records in a time efficient manner that is also more cost-effective.

Not all individuals qualify to have their arrest records sealed under the California CARE Act. Individuals with a criminal history who wish to have their information sealed will need to file their petition with Penal Code 851.87. Individuals may only apply under the CARE Act if they do not have a pattern of arrest and can prove that they are innocent. If you do not qualify to file under the CARE Act, you are encouraged to speak with an attorney to discuss the procedure that would guide your case. Every state has different laws regarding sealing an arrest which is why you are encouraged to speak with a local attorney. For inquiries about how to seal an arrest, you may contact the Long Beach Criminal Attorney at 562-303-7807.

A Criminal Record: FBI Rap Sheet

If you are applying for a job or if you are applying for housing, you may find that the employer or housing agency may request a criminal background check before offering you a position or housing. Criminal background records provide any history an individual has had with law enforcement agencies or courts. Criminal background records include any type of arrest, convictions, jail or prison sentences, charges in a courtroom, and other information pertaining to your relationship with the justice system.

In your background record, your employer or housing agency may discover that you have served jail time, that you were arrested, that you were charged in a courtroom,  that you have been fingerprinted, that you violated probationary agreements, etc. Your criminal background record reflects your interactions with the justice system which is why many employers and housing agencies use this document to have a better understanding of the applicant. Usually, employers will disregard an individual from serious consideration upon knowledge of their arrest regardless of the circumstances.

Information that is sealed on your criminal background record may only be accessed by appointed personnel or by state/federal law enforcement agencies. 

Consumer Arrest Record Equity (CARE) Act

If you feel you are not landing a job because of your criminal background record, it is most likely due to the information that is reflected on your rap sheet. As mentioned early, the Consumer Arrest Record Equity (CARE) Act allows innocent individuals who meet certain criteria to find a remedy through Penal Code 851.91. The amendments brought upon by the Senate Bill 393 allow individuals with a relatively clean background to have their arrest records sealed without having to go through the procedures described under Penal Code 851.87. Filing through Penal Code 851.91 is not for everyone especially for individuals with repeated offenses.

To have your arrest and court records sealed through PC. 851.91, an individual needs to file a petition where they will show that their arrest did not end in a conviction. You may file through PC. 851.91 if:

  • You were charged in a court of law, but the charges were dismissed
  • You were charged, but you proved not guilty
  • You were arrested by a law enforcement agency, but no charges were filed
  • You were convicted of a crime, but later the court revisits your case and repeals the conviction

If your situation is similar to the events mentioned above, you may be able to have your records sealed under the CARE Act. Upon sealing your arrest, any police investigation, court records, and arrest records will be sealed from public view. The CARE Act provides a remedy to individuals with clean background histories that show they are reliable law-abiding members of society. When you file through SB 393, you may have your records sealed automatically as a “matter of right”. In any case, you are encouraged to speak with a local attorney to discuss your case and determine if you qualify to have your records sealed through this procedure.

Despite the amendments to the California Penal Code, sealing your records is complicated if you have a history of getting into trouble with law enforcement agencies. Individuals who cannot apply to have their arrest sealed through PC 851.91 may have to apply to have their arrest records sealed through PC 851.87 where they will have to follow a much longer sealing procedure. If your situation is reflected in the following bullet points, you may not be eligible to seal your records under the CARE Act. You cannot file under PC 851.91 if:

  • You are waiting to hear the outcome of a conviction
  • You are being charged in a court of law
  • You have committed murder and have a repeated history of offenses
  • You intentionally escaped an arrest through identity theft or other measures

Limitations of California CARE Act

When SB 393 was passed on October 2017, the bill was intended to remedy individuals who are innocent. The bill was not intended to protect individuals who have a long history of repeated offenses. Individuals who demonstrate a pattern of repeated offenses will need to prove that sealing their record would serve the interests of justice. In order to seal arrest records for individuals with patterns of domestic violence or who have been arrested multiple times, the individual will need to prove that:

  • The arrest record is causing some form of hardship
  • The petitioner has undergone a rehabilitation program and that they are no longer a threat to others
  • That the arrest was unlawful

Penal Code 851.91

Individuals who are not able to have their arrest records sealed through SB 393 may be able to find remedies through PC. 851.87. When filing this penal code, the individual will be required to complete a pre-filing diversion program. The pre-filing diversion program is meant to correct the actions that led to the arrest. Upon successful completion of the program,  the individual will need to fill out a petition where they are required to state how sealing an arrest would serve as a matter of right or as a matter of justice.

For it to serve as a matter of right, the individual can utilize the current law to show that the arrest resulted in no conviction or that the case was dismissed or overturned.

For it to serve as a matter of justice, the individual is required to prove that the arrest record is causing a form of hardship or that the petitioner has undergone rehabilitation.

In court hearings, the judge is capable of assessing the petitioner's criminal history and other evidence which can be used against the individual. In addition, the person petitioning to have their arrest sealed will need to provide enough proof that they have rehabilitated or that they are factually innocent. In either case, the procedure is long and more costly which is why you are encouraged to speak with an attorney to see if you qualify for the remedies under the new law.

Filing a Petition To Seal an Arrest Record

After completion of a pre-filing diversion program for individuals filing their petition through PC 851.87, a petition to seal an arrest must have the following information. Though the sealing procedures are different depending on the penal code you are filing through, the information required in the petition remains relatively the same for both penal codes.

The petition to seal an arrest must include the following information:

  • Your complete name
  • Your date of birth (DOB)
  • The date of your arrest
  • The location of your arrest (city/county)
  • The name of the agency that conducted the arrest
  • The police case number (if applicable)
  • The offense which may have been the reason for the arrest
  • A statement addressing whether the petitioner is claiming to seal his arrest as a matter of right or in the interest of justice.
  • A statement how the sealing of the arrest would serve in the interest of justice (PC. 851.87)

The information above must be complete in order to have your petition considered and processed in a court of law. The Long Beach Attorney is capable of filing your case with the information required to make sure the petition is processed correctly the first time around.

If you are in the state of California, you may qualify to have your arrest and court records sealed under the Consumer Arrest Record Equity (CARE) Act. While not everyone qualifies for this remedy, there are thousands of Americans that are innocent and can have their information sealed from public access without having to file through PC 851.87. To have your case evaluated by a law professional, contact the Long Beach Attorney at 562-303-7807. We are ready to help you file your petition and represent your case in a court of law.