If you have ever been arrested, your case file becomes a public record, and any member of the public can access it. Your name will show up in criminal background checks, background searches, and other publicly available search engines even though your case has been dismissed, withdrawn, or you have been declared not guilty during your court trial.

You can seek relief through the expungement or record sealing that the state offers. This blog covers the definition and differences between record sealing and expungement of criminal records.

An Overview of Record Sealing in California

Most people are unaware that having a "criminal record" does not automatically mean that you were guilty of an offense. Even if no charges are ever brought against you, getting arrested could harm your ability to find work, among other negative repercussions.

Imagine a scenario when applying for your dream job only for the background check to reveal a previous arrest record from a couple of years ago. Even if you had never been convicted of that offense, your past arrest record might appear on background checks and have major social as well as employment consequences.

Thankfully, California's Penal Code 851.8 establishes a procedure for sealing and destroying a person's arrest records.

Sealing records is the legal act of sealing or, in certain situations, removing court filings that would usually be publically available as public information. The term comes from the practice of putting a seal on certain documents or files to keep anybody from looking at them without an order from the court.

The current process for sealing a record, as well as the safeguards it provides, varies by state as well as between criminal and civil proceedings. In general, record sealing refers to the practice of removing records related to a legal case from public view. However, the files may not entirely disappear and can be accessed in certain cases. Throughout many cases, unsealing of records after they have been sealed requires a warrant from the court.

When your record has been sealed, it can't be accessed through conventional methods. Your records can not be seen on background checks by employers considering you for a job or when you are applying for credit. Additionally, after you have had your records sealed, you have the legal right to claim that the incidents on the record did not happen.

As stated earlier on, the record exists, and certain entities could be able to access it, but only if they have a court's order to publicly release the records.

The objective of record sealing strikes a balance between the intention to free affected citizens of the obligations imposed by the state while still keeping the state's commitment to preserving records that could be useful to the citizens or the state.

What Does It Mean to Have Your Records Expunged?

Expungement is the procedure by which records of criminal convictions are dismissed. Dismissal and expungement can be used interchangeably. Expungement can be defined as the physical destruction, that is, a full erasure of someone's criminal convictions. It generally carries higher criteria and works differently from sealing of records. An expungement limits the public's access to the records, such that only specific law enforcement authorities or courts can have any access to them under specific circumstances.

California PC 1203.4 enables a person with an infraction, a misdemeanor charge, or a felony charge record to get his or her court case reopened, have their guilty pleas revoked, and also have the charges against them dropped.

When a criminal record has been expunged, the record is removed from a person's history, he or she can lawfully claim that he or she has never been convicted of an offense in all but certain limited circumstances, such as when applying for a professional license, applying to get a job as a peace officer, or running for public office.

The discharge of a conviction offers numerous advantages, including the ability to have criminal background check companies update your online criminal records, the lack of the need to disclose a conviction when applying for a job, as well as the restriction of how a criminal conviction is used against you in any circumstance. Also, potential employers can not have any access to previous damning information, therefore an expungement will considerably improve your chances of landing a job.

There are also circumstances where you can legally swear under oath that you have never been charged with the expunged crime before.

What is the Difference Between Record Sealing and Expungement of Criminal records?

It’s essential to draw comparisons between expunged and sealed records when seeking to establish what these two processes involve. An expunction wipes a conviction record or arrest from someone's record, whereas sealed records create the impression that the conviction or arrest records have been erased.

When an individual's records of a conviction or arrest are sealed, it indicates that it's not accessible to the general public. An order from the court can, however, be used to access or "re-open" sealed records. The method and requirements for sealing records, as well as when and how a record could be unsealed, are governed by the laws of the jurisdiction in question.

From a person's eligibility to the type of records that can be sealed or expunged, there are several other differences between these two processes in California.

Types of Records That Can Be Sealed in California

There are only two circumstances in which you can have your record sealed:

  • The arrest record you wish to seal did not lead to a conviction
  • You were arrested when you were below the age of eighteen

There are 2 options for sealing adult arrest records. The first option under Penal Code 851.91 is easier to achieve, but it does not offer a similar level of relief as the second option.

To get records sealed according to Penal Code 851.91, you must demonstrate the following:

  • You were arrested
  • In the state of California
  • There were no convictions as a result of the arrest
  • You can't be charged anymore because of this arrest
  • The statute of limitations passed
  • Charges were pressed but were later dropped

You need to show the following under Penal Code 851.8, the second option for relief:

  • You were arrested
  • In California
  • Within two preceding years (although this could be waived upon request)
  • You were in actuality not guilty of the offense

If you seal your records under Penal Code 851.8, the whole case record will be deleted three years following your arrest. Sealing records under Penal Code 851.91, on the other hand, essentially forbid the court or enforcement agencies from reporting your details of the arrest to a third party. Your court record is not destroyed; instead, it will be modified to reflect that it has been sealed.

What Type of Records can be Expunged in California?

Other than sealing, the sole kind of relief available after being found guilty of an offense in California is an expungement. An expungement serves to dismiss rather than destroy criminal records.

To get an expungement, you'll need to:

  • Serve your term, along with any probation you have received
  • Not be currently serving a term or facing any additional criminal charges
  • File a petition with the court to have your charges dismissed, as well as pay any outstanding court expenses.

Getting a record expungement will change your criminal record from "convicted" to "dismissed."

Eligibility For an Expungement Under Penal Code 1203.4

Expungement is granted to a defendant charged with felonies or misdemeanors in California if the following conditions are met:

  • He or she was found guilty of certain felony charges or misdemeanors
  • Probation was imposed in their case
  • He or she served the whole probationary period and adhered to all probation requirements and conditions
  • He or she was dismissed from probation before its conclusion
  • The defendant is currently not serving any kind of time for another crime
  • There is no other crime for which he or she is on probation
  • He or she isn't currently facing any additional charges
  • All reparation and/or penalties owed to the court have been settled

If a defendant meets the following criteria, he or she could also be entitled under California Penal Code 1203.4:

  • He or she was found guilty of a misdemeanor, and
  • It has been one year since the sentence was imposed against the defendant
  • The defendant had been found guilty in the case or was not sentenced to probation
  • He or she finished his/her term and observed all of the term's conditions
  • They are currently not facing any other probationary term for an additional offense
  • He or she isn’t presently facing any additional charges

Unfortunately could be ineligible to get your criminal records expunged when you satisfy any one of the criteria mentioned below:

  • You were found guilty in a federal court of law
  • You were condemned to state prison for am offense
  • You're still facing a probationary term and won't be able to get it lifted any time soon
  • You were found guilty of several sex crimes involving children

Charges for violations of certain Penal Codes could have an impact on your eligibility. Consult an attorney if you're uncertain about your eligibility.

Eligibility For Record Sealing

In most situations, an individual who has never been charged with the offense can seal their arrest record as a "matter of right" according to Senate Bill 393, which means they are immediately eligible. An individual is deemed not to have been found guilty of an offense if:

  • A jury declared them not guilty or was acquitted in a trial
  • They were never convicted of any criminal charges
  • Criminal proceedings were initiated against you but were subsequently dismissed
  • The convictions were overturned or dismissed
  • They finished a pretrial diversion or a pre-sentencing course

Who Is Not Qualified to Seal Their Records?

Getting your arrest record sealed isn't regarded as a matter of right in certain circumstances where your criminal background and/or other specific forms of offenses are involved.

If any one of the following relates to you or your case, then you are not qualified to have your arrest record sealed as per California law:

  • You were arrested on suspicion of murder or any other felony that has no statute of limitations under California, and you were not declared innocent or acquitted during the trial
  • You were not convicted since they managed to flee from law enforcement
  • You can still face charges for the offense that led to your arrest
  • You committed identity fraud to avoid prosecution, and you have been convicted of identity fraud
  • Your criminal record reveals that you have two or more criminal charges or five or even more arrests for elder, child abuse, or domestic violence all within the last three years

What Can you Say on a Job Application or Background Check?

If you have your criminal record sealed as per Penal Code 851.8, it will be as if your arrest never happened. Even your details such as your fingerprint records will be destroyed. If you sealed the arrest record under Penal Code 851.91, it will seem as though your arrest did not happen during background checks by private employers.

However, if you're applying for any of the following jobs, you must disclose details about the sealed arrest:

  • A public position
  • A position in law enforcement
  • A license from the state or your local licensing agency; or
  • The California State Lottery Commission

However, if you obtained an expungement for criminal records in California, the records will not appear during a background check, save in rare cases in which the background check necessitates fingerprinting.

Find an Expungement Attorney Near Me

An expungement attorney can offer much-needed guidance if you want to have your records sealed or expunged. At the Record Expungement Attorney, we can assist you in making the best possible decision for your situation. Call us today at 424-286-1516 if you want help with sealing or expunging your record in Los Angeles.