Sealing Arrest Records

Juvenile arrest and criminal records can be sealed, but by a different process; and adult criminal records can only be expunged, which means "dismissed" is entered in place of "convicted" but never "sealed" as such - again, a totally different process.

But if you are looking to have your adult arrest record and accompanying court records sealed, chances are, you will qualify. Most people do. In fact, unless certain exceptions apply, it is your right to have misdemeanor and felony arrest records sealed based on PC 851.91, which went into effect on 1 January, 2018.

To be eligible for adult arrest record sealing, any of the following must be true:

• The prosecutor didn't formally charge you with a criminal charge related to the arrest within the statute of limitations.
• You were charged but then your case was dismissed in court or you were found "not guilty."
• You were convicted, but then that conviction was overturned in an appellate court.

However, if you plead "guilty" or were found guilty and were then convicted, your arrest record cannot be sealed. You need to seek expungement instead.

And if you "intentionally evaded" efforts by law enforcement to prosecute you, then any attempt at record sealing can be thwarted.

Finally, if the prosecution has not yet charged you but still has time to do so legally, you cannot yet file to have your adult arrest record sealed in regard to that particular charge.

In California, most criminal offenses have statutes of limitations within which a charge must be filed - or it can never be filed at all. There are some high level crimes, however, that have no statute of limitation to them, so you could never get the arrest record sealed if you haven't actually been charged yet.

For most misdemeanors, there is a 1 year statute of limitations that applies. For most felonies punishable by less than 8 years incarceration, there is a 3 year time limit. For most felonies punishable by 8 or more years in jail/prison, the statute of limitations is 6 years.

But there are many exceptions to these general "legal rules of thumb," and you have to check the state laws specific to each particular offense to be sure.

Before you begin the process of petitioning to have your arrest and court records sealed, it's important to understand exactly what this action can and cannot accomplish.

Under California Penal Code Section 851.92, the sealing of an adult arrest record will do all of the following:

• Keep your arrest record from being "viewable" by the public. Only criminal justice agencies will have access.
• Seal police reports and court records related to the arrest, along with the arrest record itself.
• Allow you to legally say "no" if asked if you were ever arrested. 

However, the last point has a few exceptions. If applying for public office, to be a police officer, for a state-issued professional license, or to contract with the California state lottery, you must still answer "yes" when asked, on an application form, if you were ever arrested.

Also, arrest record sealing will not disallow prosecutors from bringing up a past arrest if you find yourself in court on a future charge. Nor will it restore lost gun rights.

You cannot "automatically" get arrest records sealed, but once eligible, you must file a formal petition with the court to have them sealed.

There is no time limit to make the petition, but you can petition anytime after you're eligible to do so. Also, there is no court fee to pay in order to file.

The form you must file will list your legal name and date of birth, arrest date (for the relevant arrest record you want sealed), the location where the arrest took place, the agency or police force by which you were arrested, any charges that were filed against you, and other relevant information.

In most cases, you are filing as a matter of right to have the record sealed. But in some instances, you must specify you are filing "in the interests of justice" and explain how justice demands that your arrest record be sealed.

After you've filed your petition, the next step is for the court to respond by setting a hearing date. You then have a duty to serve your petition to the police and prosecuting agencies that were involved in arresting and charging you - no later than 15 days before your schedule hearing.

As PC 851.92 is a new law on the books, it is not certain whether you will always be required to have a court hearing to get your records sealed, nor how long it will take the court to set a hearing date if they do so. 

It's also uncertain how long it will take to actually get your arrest record sealed. Once the court receives your petition and IF they agree to have your arrest record sealed, they must forward the paperwork to the DOJ and the law enforcement agency that made the arrest within 30 days of issuing the order to seal. So, it could take 30 days or longer.

To ensure that your records really have been sealed, you may want to get a copy of your DOJ criminal history report. But it's best to wait 90 days after the order to seal your arrest was issued so you know everything had plenty of time to process.

In most instances, you write down on your petition form that you are filing to have your arrest record sealed "as a matter of right." And so long as you are eligible to file and the paperwork is done correctly, there's little chance your petition would be denied.

But in certain cases, you have to file a "declaration" showing it's in the interests of justice to have your arrest records sealed. In such cases, the judge has the right to seal or not seal the records at his/her own discretion.

Your declaration is your own statement, under pain of perjury, as to why you should be allowed to have your arrest record sealed.

It is necessary in cases where you have a "pattern" of domestic violence, child abuse, or elder abuse arrests and/or convictions.

"Pattern" is legally defined here very tightly. It means you have had 2 or more convictions OR 5 or more arrests for the relevant offenses over a three year period, where each arrest or conviction was for a distinct incident.

At Orange County Criminal Attorney, we can assist you in making the strongest possible case to the court when you need to demonstrate "interest of justice" in your petition to have your arrest record(s) sealed.

As sealing a criminal arrest record won't prevent a license-issuing state agency from seeing and considering a past arrest when you apply for a professional license in California, you'll need to apply for a Certificate of Detention to assist in this matter instead.

In many cases, an "arrest" could count as a mere "detention" instead. A PC 849 release is a detention - it's where you were detained by police and, perhaps, even taken down to the police station or jail, but it still doesn't technically count as an "arrest."

The way to prove the difference between arrests and detentions is to get an official Certificate of Detention. And since many state license issuing agencies make a major difference between how they deal with arrests versus detentions on application forms, it's worth the effort to apply for the certificate.

Also, you don't have to disclose detentions (but only arrests) on many job application forms - so in that respect, it helps in the same way as sealing an arrest record would.

What makes an arrest not an arrest, but a "detention" instead. Here are some guidelines:

• An arrest and release without any charges ever being filed against you.
• Arrested without a warrant and then released by the arresting officer when he found insufficient grounds for the complaint made against you. PC 
• Arrested without a warrant for being under the influence of a controlled substance (not DUI, just "UI"), but nothing more happened except you were given treatment.
• Arrested with no warrant and then taken to a hospital or a mental health clinic - and no charges were filed.

If your arrest turns out to be a detention, all references to "arrested" are to be eliminated from the record of the "arresting" law enforcement agency.

If you were already given a certificate of detention when released after the "arrest," then you already have what you need. You don't have to apply for anything more.

Otherwise, you'll need to petition the arresting agency with a letter explaining why your arrest should count only as a detention. We can assist you in crafting a letter that will meet all the legal and technical requirements and maximize the chances of getting a positive response from the petitioned agency.

Finally, note that changing an arrest record to a detention record can accomplish what sealing an arrest record can't in regard to not having to answer "yes I was arrested in the past" on application forms for public office, police positions, professional licenses, or for contracts with the California Lottery.

Our staff at Orange County Criminal Attorney is not only experienced in longstanding California laws and court processes, but we are also always up to date on new developments and changes - like the 2018 implementation of PC 851.92 that allows adult arrest records to be sealed.

We can help you determine if you are eligible to file for arrest record sealing, if you need to wait for a statute of limitation to expire, if you need to include a declaration on "interest of justice" in your petition, or if seeking a certificate of detention would be a better course for you to take.

We are familiar with the legal minutia and the procedural complexities that you'll encounter as you go through the process of getting an arrest record sealed or obtaining a certificate of detention. We can guide you step by step through the process and maximize your chances of a 100% favorable outcome!

At Orange County Criminal Attorney, we have deep experience in the legalities and procedures involved in getting an adult criminal arrest record sealed. 

We have helped many others in Orange County and throughout Southern California seal their records and improve their ability to live a normal life. We know how to effectively petition the proper authorities and get it done in as little time as possible, and we know how to navigate all of the legal technicalities that may be involved.