Many people believe that if you have a criminal record, it usually means you were convicted of a crime. A simple arrest without other charges can have serious consequences because it creates a criminal record. Even without a charge or conviction, an arrest history can dent your social and professional life.
Luckily, California PEN 851.87 allows individuals to seal and destroy their arrest histories. After the records are sealed, all other files, including the police report, biometrics, booking picture, and rap entry, are destroyed. With sealed records, you can tell an employer or landlord that you have never been arrested without lying. Below is information on how to seal and destroy your arrest history.
Sealing Arrest or Apprehension Records at a Glance
If you have been apprehended for an offense in California, you have a right to seal the records. Sealing means the files will not pop up when someone runs a criminal background check on you. After the sealing, the records, which include booking photos, rap entries, police reports, and fingerprints, will be destroyed.
To delete an arrest, you must petition the court where the apprehension happened. After filing a petition, you should share a copy with the local prosecutor and the investigating police officers. The court then sets a date to hear arguments from all parties and give a verdict. You should hire a record-sealing attorney to walk you through this complex process.
The origin of PEN 851.87 is Senate Bill (SB) 393, enacted in 2017. Under the statute, you have the right to seal your record when:
- The arrest was not chargeable.
- Criminal counts were preferred but later dropped by the court.
- A bench trial acquitted you of the count.
- The court reversed your guilty verdict after appealing the initial verdict.
- You successfully finished the pre-trial diversion program like the deferred entry judgment (DEJ).
Enacting SB 393 was advantageous because, before its enactment, it was difficult for individuals arrested but not convicted of the charges to seal the apprehension records. Instead, you had to file a "factually innocent" petition under PEN 851.8. This helped prove that even though the arrest occurred, it should not have happened in the first place because the prosecutor did not prefer any charges against you, or you were charged, but the count was thrown out later.
Your apprehension will then be available to the public, and potential employers, landlords, and learning institutions could unfairly discriminate against you even if you are innocent.
Nevertheless, after the enactment of SB 393, you only need to prove legal innocence or that the apprehension did not lead to sentencing. Once you have made your case, the burden of proof shifts to the prosecutor, who will explain why the court should deny your petition. If you have a record of child abuse, domestic violence, or elder abuse, the court will deny your petition unless granting it is in the interest of justice.
California has been automatically sealing misdemeanor apprehension and conviction accounts older than a year if you satisfy all court conditions, including avoiding trouble with law enforcement. This has been going on since July 1, 2022. And beginning July 1, 2023, the state will routinely seal the majority of felony apprehensions if you have stayed clear of trouble with the law for 48 months after conviction. Again, if your felony apprehension did not lead to a conviction, your apprehension record will automatically be sealed.
Nevertheless, if your conviction is for a violent felony, your record will not be automatically sealed. Instead, you must petition the court with the help of your attorney. However, if you are a registered sex predator, the law does not allow you to seal the apprehension record even when you file a petition.
Individuals Qualified to Seal Arrest Records
PC 851.87 makes it a right to have an apprehension history sealed and destroyed if it did not lead to a conviction. Under the statute, failure to lead to a conviction means:
- The prosecutor did not prefer any charges against you, or the time limit provided under the statute of limitations has lapsed.
- Charges were preferred against you but were dropped later and cannot be re-filed.
- You were charged, but a jury or bench trial found you innocent.
- You were found guilty, but the sentence was removed or overturned by an appeal.
- Charges were dropped after successfully finishing a pre-trial sentencing program like DEJ.
You must understand that you cannot erase an arrest record if your offense is chargeable.
Also, when apprehended for an offense like homicide or any other with no statute of limitation, you are ineligible for a PEN 851.87 petition unless you are acquitted of the charges or factually innocent of the count.
Furthermore, you cannot file a petition under PEN 851.87 if your charges were for deliberate evasion of a police officer’s effort to execute an arrest. Besides, when you evade police efforts to execute an apprehension by committing ID theft or fraud and are charged with the fraud crime, you cannot petition for apprehension record sealing.
The Process of Sealing Apprehension Records
Your arrest record is eligible for automatic sealing if it is for a misdemeanor offense and you have avoided trouble for twelve months. Alternatively, you qualify for automatic sealing when your arrest is for a non-violent or non-serious felony, and you have not been on the wrong side of the law for the last 48 months.
If you do not fall under these categories, you should file a petition under PEN 851.87. The process of filing the petition entails the following:
Filing PEN 851.87 Petition with the Local Superior Court
In California, you can only file the motion with the California Superior Court, where charges for the arrest were filed. If no charges were preferred, you should submit the petition to the court in the county where you ran into trouble with the law.
Once you have filed the petition, you should serve the prosecutor and the agency that prosecuted the arrest with copies of the same.
According to PEN 851.89, you must provide the following details in your petition:
- Your official name and birth date.
- Apprehension date for which record you want to seal.
- The arrest county.
- Apprehending the officer’s name.
- Any other arrest identifying details.
- The offense leading to apprehension and charges.
- A statement regarding your right to file a PEN 851.87 petition.
- A statement regarding how sealing your records serves the interest of justice.
After all the relevant parties review the motion, the judge will arrange a hearing if the prosecutor contests your request for arrest recording sealing.
Once a court date has been set, the rules in your county will ascertain whether you should appear for this hearing or your legal representative can appear for you.
Before deciding on the matter, the judge must evaluate your apprehension record and interests of justice granting the petition will serve.
It is critical to retain the services of an experienced expungement attorney to build a solid case and convince the judge of the need to seal the apprehension record. The judge holds the discretion to deny or grant your motion based on the arguments and evidence presented by the opposing sides. Therefore, you increase the chances of convincing the judge to delete your apprehension records when you have a compelling attorney. If you represent yourself in the hearing, the judge could reject your petition with prejudice so that it cannot be re-filed.
An experienced legal representative will also prepare all the paperwork and evidence needed for the motion on time so that the time limit provided does not lapse due to insufficient or incomplete forms, denying you the right to seal apprehension records.
It takes approximately ninety days after the petition to seal the apprehension record. After the court has issued instructions to seal the apprehension record, it will inform the police department involved in your apprehension, the agency administering master criminal histories, and the state department.
After these agencies have been notified of the sealing, your records will be upgraded to indicate a sealed arrest record. That way, the only people that can access or use the records are those in the justice system.
The local law enforcers will certify that the updates reflected in all master accounts, whether digital or manual, of the law enforcement report that led to the sealed arrest.
Whether it is the police investigative report, court or arrest records, once sealed under PEN 851.87, cannot be divulged to any organization or individual unless you or the justice system.
Benefits of PEN 851.87
Arrest records are available to the public. Public members who wish to check criminal history can easily access this information. Potential employers, landlords, California licensing agencies, insurance firms, and prospective intimate partners can look up your criminal record online. If your name appears in the files, the individuals looking you up will not care whether you were convicted or the arrest was lawful.
Employers are prohibited by the "ban the box law" under AB 1008 from discriminating against potential workers based on arrest records that did not result in formal charges or convictions. Nevertheless, if you are already employed when the arrest happens, the employer can fire you without explaining.
When you seal the apprehension record, it will no longer be visible to the public. The police report, booking pictures, and court files will be destroyed, and only an organization in the justice system can access them when need be. A PEN 851.87 petition gives you a clean slate when granted.
Legal Use of Sealed Apprehension Records
A PEN 851.87 petition allows you to destroy your arrest records and conceal them from the public, but the file does not entirely stop there.
The prosecutor can bring it up during subsequent offenses to prove you should face stricter penalties. Besides, an agency in criminal justice can access the sealed records and share them with law enforcers in a different jurisdiction as if they were never sealed in the first place.
Also, a sealed record will not release you from the following obligations:
- An existing obligation to enlist in the sex predator registry as outlined under PEN 290.
- A prohibition from holding public office stemming from an arrest.
- Any ban against owning, buying, or possessing a weapon.
- The responsibility to reveal an apprehension as necessitated by law when answering direct questions when applying for a public office, peace officer position, a license, or contract with the California State Lottery Commission.
Lastly, it would help if you understood that a petition in PEN 851.87 would not seal all your apprehension records. It will only apply to the specific arrest that you are fighting. You must file separate motions if you want to erase all the records.
Timeline for Sealing Apprehension Records
Under the factual innocence petition defined under PEN 851.8, you had to petition for record sealing 24 months after the apprehension or filing of formal charges. However, under the recent PEN 851.87 petition, there is no time limit for requesting to seal and destroy your apprehension history.
However, do not wait for years before sealing the records. If you are seeking employment, college admission, a romantic relationship, or a state license, you want to clear the record as soon as possible to obtain a clean slate. If you are sure the prosecutor cannot re-file the charges, do not hesitate to talk to an expungement attorney to begin clearing the record. An attorney will review your case to determine your eligibility.
Sealing Apprehension Records vs. Sealing Juvenile Records
A PEN 851.87 petition is distinct from sealing juvenile records. To seal a juvenile record, you must be currently an adult, or your court wardship was terminated not less than five years ago. Also, you should not have engaged in a crime involving dishonesty or immorality or have a pending civil case because of an incident that happened when you were a juvenile.
Find an Experienced Expunction Attorney Near Me
If you wish to seal and destroy your apprehension record in Los Angeles, call the Record Expungement Attorney at 424-286-1516 for a no-obligation consultation. Our profound attorneys will investigate the arrest, file all the necessary paperwork, represent you in the hearing, and assist you in contacting prospective employers and notifying them of the legitimate measures you are taking to obtain a clean slate.