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.
With the implementation of Senate Bill 731 and Assembly Bill 1076 – The Clean Slate Laws, misdemeanor arrests will be automatically sealed after 1 year if there are no charges, and felony arrests will be automatically sealed after 3 years if there are no charges.
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.
