An arrest can remain on one’s criminal record, with the record remaining on file at the courthouse and the “rap sheet” stored within the California Department of Justice database. Even if the arrest didn’t ultimately result in a conviction, seeking relief to seal your criminal arrest provides favorable options for those that are pursuing new opportunities when they apply for a job or promotion opportunities, enrolling in education opportunities, achieving new certifications by a state licensing authority, or other advancing career endeavors.
In 2017, Governor Brown signed legislation that would allow individuals whom were arrested – but not convicted of a crime for which the arrest occurred – to seek relief sealing their arrest records, if their arrest applied to certain circumstances.
Who Qualifies for Arrest Record Sealing Under the New Law?
Relief is now permitted for any past arrest where that arrest did not end in a conviction.
Who Qualifies For This Type of Relief?
The new law applies to four circumstances where an arrest did not result in a conviction:
- An arrest was made, but no charges were ever filed against the individual
- An arrest was made; charges were filed, but no conviction occurred because the charges were dismissed at a later date
- An arrest was made; charges were filed, but the individual was acquitted at a jury or court bench trial
- An arrest was made; the individual was convicted of a crime, but that conviction was later reversed or vacated on appeal
Who Does Not Qualify For This Type of Relief?
The new law places limitations on individuals if any of the following circumstances are applicable:
- The individual could still be charged with any of the offenses upon which the arrest was based; whereas the statute of limitations has not expired, or if the case can be refiled by the District Attorney for any reason.
- The individual was charged with Murder or any other serious offense; whereas there is no statute of limitations for the offense, except when the individual was acquitted or found to be factually innocent of the charges.
- The individual “intentionally evaded” law enforcement efforts to prosecute the arrest, including by absconding from the jurisdiction in which the arrest took place. The existence of bench warrants or failures to appear that were adjudicated before the case closed with no conviction do not establish intentional evasion.
- The individual 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.
Statute of Limitations Concerns
The new legislation signed by Governor Brown does not apply if charges can still be filed by the District Attorney’s office. This inquiry typically depends on whether or not the statute of limitations has run on the charges that could have been filed from the arrest.
In California, the statute of limitations is typically based on the severity of the penalty for the crime.
The typical statute of limitations rules for the following are:
Misdemeanors – Typically, a one-year statute of limitations from the offense date
Felonies – Typically, a three-year statute of limitations from the offense date
Serious Significant Felonies – If the felony in question is punishable by state prison for eight years or more, the statute of limitations is six years from the commission of the offense
There can be a variety of exceptions and obstacles to the rules described above. Not all crimes are governed by a statute of limitations. For example, a serious felony such as Murder or other inherently dangerous crimes, has no statute of limitations.
It’s apparent that this area of law can be complicated to understand. It’s important to confer with our law firm to assess if the statute of limitations applies to your situation.
New Legislation Allows Relief as a Matter of Right
Under the old legislation, a petition to seal the arrest record required the individual to prove they were “factually innocent” of the charges. This is no longer the case. Under the new legislation, a petition to seal the arrest record is permissible as a “matter of right.” Essentially, if an individual meets one of the four criteria’s described above, they are entitled to have their arrest record sealed.
However, there are concerns with individuals who have a lengthy criminal history. When the state legislature was drafting the law, they did not want to create a law that would enable individuals with lengthy criminal histories to have the ability to automatically seal their arrest record. If an individual does have a lengthy criminal history, the individual would have to show the court that the request to seal their arrest record would be, “in the interests of justice.”
The court will look at the following factors to determine whether the interests of justice would be served by granting a motion to seal an arrest record: clear evidence that the individual is rehabilitated and of good moral character; hardship to the individual caused by the arrest – whether the arrest is limiting their job opportunities and earning capacity; or other relevant evidence about the facts and circumstances of the arrest that merit the granting of the motion.
How the Relief Impacts Your Life After the Court Grants Motion to Seal Arrest Record
When the court grants the arrest record to be sealed, the arrest is deemed to not have occurred. Typically, you can legally state that you have not been arrested for that incident, with limited exceptions such as: (i) in response to any direct question contained in a questionnaire or application for public office; (ii) for employment as a peace officer; (iii) for licensure by any state or local agency; (iv) or for contracting with the California State Lottery Commission.
The sealing of an arrest record does not impact a person’s rights when it comes to their right to possess, own, or have in their custody or control over any firearm.
The sealing of an arrest record does not affect any prohibition from holding public office that would otherwise apply under law as a result of the arrest.
We’re Ready to Seal Your Arrest Record – Contact Us Today
Contact us to today to inquire if you’re entitled to this new relief. We assist all individuals no matter what circumstances they are currently facing; whether your arrest record is limiting your job opportunities, whether your arrest record is impacting your status to gain certification for a state licensing authority, or whether you want to seek this relief to just put the past behind you. We are here to help you. Contact us today for a free consultation.