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New CA Law: Seal Your Adult Record of Arrest in CA in 2018.


Effective January 1, 2018, a newly enacted law makes it significantly easier for qualified individuals to seal their record of arrest. Before the new laws, Penal Code § 851.8 was the only way to seal a record of arrest for adults. You needed to (1) act within 2 years of the arrest, (2) show you were factually innocent, and (3) have been arrested and not charged, or acquitted by a jury. Few people qualified because of the two-year limit and because it's not easy to show you are factually innocent.

Arrested But Never Convicted

The new law, Senate Bill 393, makes it significantly easier to seal your adult record of arrest, with the exception of certain offenses based on violence. Several new code sections have been added or amended to the California Penal Code to cover a range of situations. (Pen. Cd. §§ 851.87, 851.90, 851.91 and 851.92.) So long as there was no conviction, you no longer need to show you're factually innocent, regardless of when the arrest occurred.

Provided the statute of limitations has run on the underlying crime (1 yr. for misdemeanors usually), and no case was pursued after you were arrested, arrestees may now have their arrest record sealed as a "matter of right" - - meaning there is no discretion not to grant the relief. But even if a case was filed after your arrest, you still may apply to seal the record of arrest, so long as you were not convicted of a crime. Also different is that you do not need to first ask the police department that arrested you; instead, you bypass the law enforcement agency completely and file the petition with the court.

Another change is that defendants who have successfully completed "diversion" or even diversionary sentences are also eligible for relief. Overall, this is a radical change in the realm of criminal law and Criminal Diversion here in California.

Who or what kind of situation qualifies?

In sum, here are the eligible arrestees:

  • you were arrested, no charges were filed, and the statute of limitations has run;

  • you were arrested, charges were filed, but the charges were dismissed and cannot be re-filed;

  • you were arrested, charges were filed, but acquitted; and

  • you were arrested, there was a conviction, but the conviction was vacated or reversed, and the charge or charges cannot be refiled.

Who May Not Be Eligible?

If you meet the above criteria, the petition is granted as a matter of right unless the charge relates to:

  1. Domestic violence and a pattern;

  2. Child abuse and a pattern; and

  3. Elder abuse and a pattern.

"Interest of Justice"

There is still a possibility your arrest may be sealed based on the “interest of justice”, where the court would consider:

  1. Hardship caused by the arrest;

  2. Declarations or evidence regarding good character;

  3. Declarations or evidence regarding the arrest; and

  4. Records relating to lack of criminal convictions prior to and after the arrest.

Your Criminal Background Check – What Are the Benefits?

If your petition is granted, the court must issue a written ruling and order that, among other things, states that the arrest is deemed not to have occurred and that, except as otherwise provided, you are released from all penalties and disabilities resulting from the arrest, and may answer any question relating to the sealed arrest accordingly – i.e., employers ask "have you ever been arrested before?"

The Law Office of Patrick Santos will help you figure out if you are eligible. Call today for a free consultation.

#criminaldefense #privacy #arrest

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