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Sealing of Adult Record | Penal Code Section 851.91.

California law has made a revision to allow for adults to have their non-drug-related arrest records sealed if they were accused of a felony or misdemeanor but not convicted. This revision is found in Penal Code section 851.91, and was created to provide relief for those facing the harsh social stigma of an arrest, despite having been declared "not guilty."

Formerly, an adult could only get their arrest record sealed if they satisfied an immensely challenging requirement of proving their innocence and completing drug diversion. Now, arrestees that were not convicted may petition to seal their records from public view without fulfilling these requirements.

Learn more about how Mark Raymond McDonald Esq. can help you obtain a sealed record. Contact us for a free initial consultation and we can evaluate if you are eligible and how to proceed.

How Do I Get My Record Sealed?

You will need to do the following to obtain a sealed record:

  • File a petition with the court where your arrest or original case occurred
  • Attend a hearing, in which it will be determined if you are eligible for the sealing
  • The court will make a decision about whether or not to grant the sealing

If the court orders your record be sealed, no member of the public will be able to access any record of you having been arrested or any other document related to that case.

Eligibility Requirements to Seal Your Arrest and/or Record

To be eligible to seal your arrest records and/or court case, you must be eligible for this remedy. You are eligible for relief if your arrest did not result in a conviction and the prosecution is unable to charge you.

The prosecution cannot charge you if any of the following are true:

  1. The statute of limitations has run, meaning that it is too late for the prosecutor to file charges
  2. The charges that were filed against you were dismissed and cannot be refiled
  3. A judge or jury found you "not guilty"

A judge does have the discretion to deny your request, and may do so if the charge or arrest is for domestic violence, child abuse, and/or elder abuse and you have a pattern of one of these conducts. "Pattern" is defined as having 2 or more convictions for the same type of crime or you were arrested on 5 or more occasions for the same crime, each within 3 years of each other.

If you meet the eligibility requirements, but also fall within one of the categories that would grant a judge discretion to deny the petition, the judge is only permitted to grant your petition if he or she believes the interests of justice would be served.

To determine whether the interests of justice would be served, the judge will consider the following factors:

  • What hardships your record of arrest causes in your life, such as difficulty finding employment
  • Evidence of your good moral standing and character
  • Declarations or evidence regarding and surrounding your arrest
  • Your prior criminal record

A judge could have a say in the approval or denial of your record sealing case if your arrest was for domestic violence, child abuse, or elder abuse, and there is reason to believe you have a pattern of such conduct. A pattern is defined as either having two or more convictions for such crimes, or being arrested five or more times within three years for such criminal accusations.

Persons Ineligible to Seal Their Criminal Record

A person is not eligible to seal their record under PC 851.91 if:

  1. The prosecutor is still allowed to file charges
  2. The charge was for murder or an offense with no statute of limitations, except if you were found "not guilty" by a judge or jury or you were deemed factually innocent
  3. You intentionally evaded law enforcement via identify fraud

What Is the Difference Between an Expungement and Record Sealing?

If you have been convicted of a crime, an expungement "dismisses" that conviction. However, the conviction will still remain on your public record, but have an official note attached explaining that it has been dismissed. An expungement allows you to legally answer on most employment applications that you have no criminal convictions on your record. However, an expungement does not hide your record from the public.

Record sealing is only available if a charge did not lead to a conviction. Record sealing makes your former arrest secret so that the public cannot view it.

What Happens After the Court Grants My Petition?

If the court grants your petition to seal under PC 851.91, then there are statutory formalities that must be followed:

  • The court will transmit a disposition report to the California Department of Justice;
  • Issue a written order to you, the prosecution, and arresting agency that your records are ordered sealed;
  • Issue an order that the arrest is deemed not to have occurred and the petitioner will be released from all penalties or disability as a result of your arrest;
  • The police agency must seal all investigative reports relating to your arrest and not be accessible by any member of the public;
  • The court records will be sealed and be made public;
  • Order that it is a civil penalty to disseminate sealed court and arrest records.

Can I Get My Records Destroyed?

Record sealing will only hide your record from the public. In order to have your record destroyed, you will need to file a petition for factual innocence. Even though your case was dismissed or you were pronounced "not guilty," to have your arrest record destroyed, you will need to go a step further and provide evidence that you were innocent of the crime.

Contact Us to Schedule a free initial consultation

As in all criminal law matters, it is important to seek competent legal service to accomplish your goals. Having the right attorney can make a difference in the outcome of your legal issue. That is why it's important to contact the San Bernardino record repair attorney at the firm. The firm serves all throughout San Bernardino county.

Need help with criminal record repair? Contact the San Bernardino post-conviction relief attorney at the firm today! Your initial consultation is free.