If you’ve been arrested in the past and have been fortunate enough not to be saddled with a criminal conviction, don’t think for a second that your arrest record automatically disappears off your criminal history. Most people feel that their troubles are over once their case is rejected or dismissed, but the arrest entry on your criminal history can still haunt you in gaining employment, being promoted or even volunteering at your child’s school

While there are laws on the books that prohibit employers from discriminating against applicants based on arrest records, the enforcement of such laws are not that simple. It is difficult to find out if an employer is actually following this law because we are not privy to what the employer is actually considering during this process. An employer may say they did not consider an arrest on your record, but how do we really know?

With that in mind, a relatively new law has come into effect that allows those with arrest records that did not result in a conviction to be able to petition the record to be completely sealed and destroyed from the prying eyes of future employers. Under Penal Code 851.87, the process has been streamlined and made much easier then it used to be.

Here are some frequently asked questions about sealing of arrest records:

Why did this new law come into effect?

Before Penal Code 851.87, you needed to prove yourself “Factually Innocent” prior to your arrest record being sealed and destroyed. This was an incredibly high burden on a petitioner. Most people didn’t even try. But the main reason behind this was that legislators realized how damaging a simple arrest record could be for someone seeking to find a job, seek a promotion, or even rent an apartment. They believed that an arrest should not be such a handicap, especially if it did not result in a conviction.

How do I know if I qualify for relief under this new law?

The first step is to make sure your particular situation qualifies under the new law In order for you to qualify for sealing under Penal Code €851.87, you must fall into one of these categories:

a) Your arrest did not result in any charges being filed.

b) Your arrest resulted in the filing of charges, but they were later dismissed.

c)You were found not guilty at a jury trial.

d)You completed a court ordered diversion program like P.C. 1000 or Prop 36.

Are there any charges that may disqualify me?

If you have a history of domestic violence convictions, sexual charges, or Elder abuse charges, the court can deny your petition.

How does the process work in getting my arrest record sealed?

After we research whether you qualify for relief, the next step involves preparing the petition. Once the petition is ready, we file it in the appropriate courthouse and serve a copy on the prosecutorial agency that handled your case.

How long does the process take?

It takes approximately 6-8 weeks, with some exceptions, for the court to decide. Once they grant the petition, the order for sealing is sent up to the Department of Justice so that they seal and destroy the appropriate record.

Does this completely wipe out the record of my Arrest?
No.  Law enforcement and the prosecutors can still see your arrest record in case you commit another crime. Also, if you apply for a job in law enforcement, the California State Lottery or apply for any licensing through the State of California, you may need to disclose the arrest.

Do I need to appear in court?
No.  Your presence is not required in court.   We can handle the entire process without you having to step in to court. 

I have more questions.

If you have any more questions, please feel free to contact us directly at 562 907-4448 or email us at LABestDefense@Gmail.com.

*Penal Code 851.87

851.87.  
(a) (1) In any case where a person is arrested and successfully completes a prefiling diversion program administered by a prosecuting attorney in lieu of filing an accusatory pleading, the person may petition the superior court that would have had jurisdiction over the matter to issue an order to seal the records pertaining to an arrest and the court may order those records sealed as described in Section 851.92. A copy of the petition shall be served on the law enforcement agency and the prosecuting attorney of the county or city having jurisdiction over the offense, who may request a hearing within 60 days of receipt of the petition. The court may hear the matter no less than 60 days from the date the law enforcement agency and the prosecuting attorney receive a copy of the petition. The prosecuting attorney and the law enforcement agency, through the prosecuting attorney, may present evidence to the court at the hearing.
(2) If the order is made, the court shall give a copy of the order to the person and inform the person that he or she may thereafter state that he or she was not arrested for the charge.
(3) The person may, except as specified in subdivisions (b) and (c), indicate in response to any question concerning the person’s prior criminal record that the person was not arrested.
(4) Subject to subdivisions (b) and (c), a record pertaining to the arrest shall not, without the person’s permission, be used in any way that could result in the denial of any employment, benefit, or certificate.
(b) The person shall be advised that, regardless of the person’s successful completion of the program, the arrest shall be disclosed by the Department of Justice in response to any peace officer application request, and that, notwithstanding subdivision (a), this section does not relieve the person of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(c) The person shall be advised that an order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
(d) As used in this section, “prefiling diversion” is a diversion from prosecution that is offered to a person by the prosecuting attorney in lieu of, or prior to, the filing of an accusatory pleading in court as set forth in Section 950.