You may be involved in unfortunate situations, whether by purpose and intent or simply because of a case of bad location, bad timing. Your situation may end with an arrest and no formal charges or it may result in a legal case wherein you are determined to be guilty, and a conviction goes on your record. Once a negative situation is on your record, it can wreak negative havoc on your personal life and career.
The fortunate thing is that the law provides recourse for both situations, allowing you to clean your record in order to prevent certain groups of people from becoming aware of the legal actions that had been taken against you. Recourse may be a simple petition to seal an arrest record, or a more complex expungement of a formal conviction. In either scenario, whether you are eligible for the action depends on the specific details and conditions of your case. Importantly, both situations are court orders, which means that though you may be eligible and seek such action, a court does not have to honor your request.
Our purpose for this article is to explain the legal procedures of both expungements and petitions to seal an arrest, sometimes known as record sealing. Though expungement and petition to seal an arrest are frequently used in similar contexts, these legal actions have significant differences.
Record Expungement Attorney is a multi-faceted team of attorneys and legal professionals who specialize in various methods for helping California residents clear their records. Whether a civil or criminal case, whether an arrest or a conviction, we can help you navigate your options to help clear – and clean up – your record. We put together this article as an introduction to the similarities and differences between expungement and record sealing.
Informational in nature, this article may not be used as a substitute for legal counsel specific to your situation. Only a lawyer or legal professional with full knowledge of your situation can provide legal advice.
BASIC DIFFERENCES: EXPUNGEMENT AND PETITION TO SEAL AN ARREST RECORD
Though the terms are often used in the same context, typically around how to clean up a criminal record, there are a couple major differences, which we will explore further later in this article. Importantly, each U.S. state may have a different procedure, and even varying definitions, for record sealing and expungement.
The following descriptions in this section are the most commonly accepted definitions for sealing a record and expunging a conviction.
- A petition to seal an arrest record applies to situations wherein you were arrested for an alleged crime but were not charged with a crime or you were not convicted of the crime.
- An expungement, on the other hand, typically applies to situations wherein you have been convicted, or found guilty, of a crime. Offenses can include both misdemeanor and felony crimes as well as less severe infractions.
Should you petition a court to seal an arrest record, and the court sides with you, the result is that your arrest record is removed from public view. The record is not destroyed or erased, but it is sealed closed, which means only those with authority to view them may. General members of the public, including potential employers, cannot receive these records without themselves seeking a court order to unseal the records.
In the case of expungement, should the court side with your petition for an expungement, the result is that the guilty decision is not on view for the general public. A member of the public, including an employer or potential employer, could look up your case, but instead of seeing a decision of guilt, the record will reflect that your case had been dismissed and its guilty decision has been “set aside”. For this reason, expungements are commonly known as dismissals.
SEALING AN ARREST RECORD IN CALIFORNIA
The requirements for sealing an arrest record are more relaxed than an expungement. Plus, record sealing applies to more people and situations than expunging a criminal record may.
In California, all arrests remain in your record, even if you were wrongfully arrested or your arrest didn’t result in a determination of guilt (conviction). Whether your arrest was related to a misdemeanor or a felony, you may have the right to request a seal and destruction under California Penal Code section 851.8.
Importantly, when you file a motion with a court to seal your court record, it only applies to a single, specific arrest. It is not a magic wand that seals your entire record. In order to clear a record of more than one incident from your overall record, you must file motions for each individual instance.
If a court sides with your motion and chooses to seal and destroy your record of a specific arrest, three significant things happen:
- Your arrest is now hidden from the general public, so a common inquiry into your background will not show that you were arrested.
- Your arrest record of that single incident is sealed and destroyed, including police records, fingerprints and booking photos, and other related records. This information will no longer appear in a criminal background check.
- Your arrest, in essence, never occurred. This means that when an employer or another legally-bound organization asks whether you have been arrested, you can state with a clear conscious that you have not (unless other arrests exist on your record).
An added benefit is that a record sealing may be a more attainable option, especially if your case does not meet eligibility standards for seeking an expungement.
AM I ELIGIBLE FOR HAVING MY ARREST RECORD SEALED?
Your case for record sealing could be eligible if you can prove factual innocence. Factually innocent is different than a decision of not guilty, meaning that no reasonable cause existed for the arresting officer to believe you had committed a crime that justified the arrest.
You also have to meet one of the following conditions:
- You were arrested, but no prosecutor filed criminal charges against you.
- You were arrested and a prosecutor charged you with a crime, but your case was dismissed in court.
- You were arrested and charged with a crime and tried in court, but a jury acquitted you (found you not guilty).
If you were convicted, whether by your own guilty plea or by a court trial, you are not eligible to have your records sealed.
EXPUNGEMENT IN CALIFORNIA
An expungement is a more significant way of cleaning your criminal record. Like a sealing, it limits what information can show up on a criminal background check. Unlike a sealing, an expungement does not simply hide or block the arrest from public view. Instead, an expungement shows that, post-conviction, your guilty decision has been set aside or dismissed. It is not an erasure of what happened. In fact, even if you obtain an expungement on a first-offense crime and you later commit a second offense, that expunged conviction can still count as a first strike or serve as increasing your sentence.
Expungement, or dismissal of a conviction, has stricter practices and procedures because its ramifications are more significant. While sealing a record can apply to situations wherein you were not convicted of a crime, an expungement deals with actual convictions.
Importantly, if a court does not side with you on your request for expungement, you may still be eligible for a record sealing, which can help certain situations such as your employability and overall reputation. If you are a convicted felon, however, the rights that are removed upon conviction, such as the right to vote or the right to own a firearm, are still in place. A record sealing does not restore these rights.
AM I ELIGIBLE FOR EXPUNGEMENT?
You could be eligible for an expungement depending on your case. In specific crimes in California, convictions can never be expunged, including crimes involving child pornography, lewd acts with a child, specific sexual assaults, and the failure to submit your vehicle for inspection upon police order, as governed by the following California Penal Code sections 261.5(d), 286(c), 288, 288a(c), 288.5289(j), and 311.1-3.
If your crime is other than the above, you may be eligible to apply for expungement based on the following situations:
- In the case of a misdemeanor or felony conviction, you were granted probation, and you completed each term of the probationary period.
- In the case of a misdemeanor conviction and you were denied probation, or in the case of an infraction conviction, however the following conditions apply:
- You may apply for expungement after a wait time of at least 1 year from your conviction date.
- You are not currently in a probationary (or other supervision) period or serving any sentence on any other case.
- You are not currently charged with any other crime or offense.
- In the case of a felony conviction, and you served time in a county jail (not a state prison), but the following conditions apply:
- You may apply for expungement after a wait time of at least 1 year from the completion of a “split sentence”, which is the completion of all mandatory supervision in your community.
- You may apply for expungement after a wait time of at least 2 years after completing a “straight sentence”.
- You cannot be in a probationary (or other supervision) period or serving any sentence on any other case.
- You are not currently charged with any other crime or offense.
Your case is disqualified for an expungement in the following scenarios:
- You are charged and being prosecuted for an offense in any jurisdiction.
- You are serving a sentence for any crime in any jurisdiction.
- You are serving a punishment, for any crime in any jurisdiction, which can include a probationary period, mandatory supervision, parole, or post-release community supervision. (If you are able to obtain early termination by court, you may become eligible for expungement.)
- Your conviction involved serving a sentence in state prison (not county jail).
BENEFITS OF SEALING AN ARREST RECORD AND EXPUNGEMENT
Sealing your record and seeking expungement are both beneficial for many reasons, but the most commonly cited reason is that any criminal record, even if it’s only arrests, can significantly decrease your changes for landing a job.
Studies show that 70 percent of organizations use criminal background checks on all job applicants. Companies cite reasons such as ensuring a safe work environment for employees and reducing their legal liability for negligent hiring. Importantly, nearly 60 percent of these organizations do not allow a candidate to explain the result of a criminal background check before the company hires someone else. This means that even if a simple arrest, with no conviction, appears on your record, you are significantly less likely to be hired for a job, despite any other qualifications.
In expungement situations, however, certain crimes mean you lose particular rights. If you are convicted, or found guilty, of a felony crime, you do lose certain rights, such as the right to bear arms or the right to vote. If you obtain a court-ordered expungement, these rights are not restored to you.
HOW TO PETITION FOR A RECORD SEALING OR EXPUNGEMENT
The first step to cleaning up your criminal or arrest record is to first find out what is on your record. Requesting to seal a record and requesting an expungement follow two different procedures. Luckily, with the help of the attorney and your California county’s public defender program and self-help resources, you should be able to navigate the process smoothly.
Many California counties provide specific information on how to start a petition for a record sealing. Seek your county court or local jurisdiction for this information.
The Judicial Branch of California outlines how to obtain a copy of your criminal record, and then provides specific details you need to know about each of your convictions in order to begin the process.
At Record Expungement Attorney, we are here to help people across the great Riverside region clean up their criminal records. Whether you’re seeking to expunge a criminal conviction or simply to block an arrest from public view, contact us today at 951-916-9248. Our team looks forward to helping you get back on the path to success!