New Law Makes it Easier to Seal an Arrest Record in California

Posted on November 20, 2017

Every year thousands of innocent people are arrested for crimes they did not commit. Most such arrests do not result in a conviction.

Up until now, these arrests have shown up on California criminal background checks — even though California law prohibits employers from asking about arrests that do not result in a conviction.

In the past, getting an arrest record sealed required convincing a judge that the petitioner was factually innocent of the charges that led to the arrest, a near impossibility.

A new California law remedies this situation by giving most people the right — as a matter of law — to get an arrest record sealed in California if that arrest did not result in a conviction.

The law — California Penal Code 851.87 — is based on Senate Bill 393, which Governor Jerry Brown signed into law on October 11, 2017. For purposes of PC 851.87, an arrest is deemed not to have resulted in a conviction if:

• No criminal charges were ever filed,
• Criminal charges were filed but were later dismissed,
• The defendant was found “not guilty” (acquitted) at a jury trial,
• The defendant’s conviction was vacated or overturned on appeal, or
• The defendant successfully completed a pretrial diversion or pre-sentencing programs such as Prop 36 drug treatment or Penal Code 1000 deferred entry of judgment.

Exception for domestic abusers

There are some exceptions to the Penal Code 851.87. In particular, there is no automatic right to seal an arrest record if the petitioner’s record shows a pattern of:

• Domestic violence,
• Child abuse, or
• Elder abuse.

However, such petitioners can still get their arrest sealed if doing so would be in the interests of justice – for instance, because disclosing a particular arrest would result in hardship to the petitioner.

A few final notes:

Sealing an arrest does not negate any existing obligation to register as a sex offender in California.

An arrest may also legally appear in a background check if someone applies to be a law enforcement officer in California, or if a law requires disclosure in connection with running for public office, licensing by a state or local agency, or contracting with the California State Lottery Commission.

Finally, people who were convicted of a crime are not eligible to have their record sealed. They can, however, petition to have their criminal record expunged in California.

If you need to clean up a criminal record, we invite you to call us for a free consultation.

We may also be able to help if you need to seal a criminal record in Nevada.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.