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    Seal & Destroying Criminal Records

    Defendants are often so focused on the outcome of an arrest that they fail to appreciate that an arrest record is a public record. It can impact their lives in countless ways.

    For example, consider the Ban the Box legislation. This law precludes employers from asking a prospective employee about any history of arrest. However, once an employer makes a conditional offer of employment, they are legally allowed to run a full background check. That report can include information about any arrests.

    Criminal background checks are also used for applications for insurance policies, apartment rentals, and other commercial interactions. An arrest will still appear on a background check if the arrestee was never charged, participated in a diversionary program, or was ultimately exonerated.

    However, California law provides that some individuals arrested for misdemeanors or felonies can petition the court to seal and destroy the records of their arrest. If their petition is granted, then their arrests will be removed from public background checks. In fact, if anyone disseminates information regarding an arrest under seal, the prosecutor can initiate proceedings against them.

    In the past, few arrestees successfully petitioned a court to seal their records. However, following the 2018 passage of the Consumer Arrest Record Equity (CARE) Act, many arrestees may now obtain a seal as a matter of right if any of the following conditions apply:

    • charges were never filed,
    • the arrestee was acquitted at trial,
    • the arrestee prevailed in an appeal (either overturning or vacating their conviction), or
    • the arrestee completed a pretrial diversion or sentencing program.

    While every case is different, the lawyers at the Law Offices of David S. Chesley can help certain defendants seal their arrest records.

    Let’s begin with an overview of common questions relating to the sealing and destroying of arrest records.

    What do I need to prove to get my case sealed?

    Under California law, there are two standards for an arrestee to have their record sealed: An arrestee can either prove to the court that they are “factually innocent” or that they are entitled to the seal as a matter of law.

    To seal a record under the “factually innocent” standard, Penal Code section 851.8 requires that an arrestee did not commit the alleged crime. In other words, there was no reasonable cause for their arrest. Therefore, to prevail in a “factually innocent” petition, the arrestee bears the initial burden of proof. They must affirmatively convince the court they were innocent.

    This test is a very difficult standard that few will meet. Conceptually, however, a petition for factual innocence is possible if:

    • the arrestee was arrested, but the prosecutor never filed charges against them; or
    • charges were filed, but the arrestee was not convicted; or
    • the arrestee was acquitted of the charges following a trial.

    How is the CARE Act different? Who can have an arrest sealed under this law?

    Because few people succeed under the “factually innocent” standard, the CARE Act, California Penal Code section 851.91, was passed. Under this new statute, arrestees may petition the court to seal an arrest record for misdemeanors and a few more serious crimes “as a matter of law.”

    As a threshold requirement, an arrestee is entitled to have their record sealed if the prosecutor with jurisdiction has not filed a pleading based on the arrest, and the statute of limitations for every related offense has run.

    Arrestees are also entitled to have their arrest record sealed if any of the following is true:

    • The arrestee was not convicted, the charge has been dismissed, and the charge can’t be refiled;
    • The arrestee was acquitted of the charges; and
    • The arrestee was convicted, but the decision was vacated or reversed on appeal, all additional appellate remedies have been exhausted, and the charge cannot be refiled.

    Are there reasons I may not be eligible to have my arrest sealed under CARE?

    The statute’s intent is to facilitate successful petitions. However, there are still substantive limits to the CARE petition. CARE petitions are not available if any of the following apply to the arrestee’s case:

    • The arrestee could still be charged with any crime relating to the events that led to their arrest;
    • If the charge is murder or another crime that has no statute of limitations, and the arrestee has not been acquitted or found factually innocent;
    • The arrestee intentionally evaded law enforcement’s efforts to prosecute, whether by fleeing the jurisdiction, committing identity theft, or other means.

    Furthermore, the CARE Act may not apply if the arrestee is charged with domestic violence, child abuse, or elder abuse. In those cases, if, within the past three years, the petitioner was previously arrested five or more times, or has been convicted two or more times for the same offense, the court will only order their record sealed if it serves the interest of justice.

    What’s the process to seal and destroy records?

    Petitioners are not required to have an attorney. However, it’s advisable to have a criminal defense attorney throughout the process to:

    • Draft the petition;
    • Appear in court;
    • And ensure that law enforcement agencies have properly sealed the record after the court has issued its order.

    Judges have significant discretion when it comes to these decisions. Having an experienced advocate may make the difference between a successful and an unsuccessful petition.

    Filing the Petition: The first step is to file a petition in the same court where either the arrest or prosecution took place. The CARE Act has specific requirements for what must be in the petition, including basic facts relating to the arrest and the legal rationale for why the order should be granted.

    Court Review/Hearing: The court usually takes at least 15 days to render a decision on a petition. Most misdemeanor petitions do not require a court hearing. However, if the prosecutor decides to oppose a petition, then the arrestee must appear before the court.

    The Sealing Process: If the court rules in favor of the petitioner, it will issue an order to seal the record and then disseminate it to the Department of Justice and relevant local law enforcement agencies. These agencies must thereafter stamp any physical files relating to the arrest as “SEALED.” They must update any relevant databases with a notation that the record is sealed as well.

    A similar—but not identical—process also applies if the petitioner’s request was based on a claim of factual innocence.

    What’s the new “Clean Slate Law”?

    “The Clean Slate Law” is a 2019 revision of the California Penal Code that provides relief for arrests relating to misdemeanors or other crimes that occurred on or after January 1, 2021.

    Under this statute, the Department of Justice will conduct a monthly review of its records. For those who meet all the relevant criteria, the Department will automatically seal their records. There is no need for these arrestees to petition the court for a seal order.

    If an arrestee does not qualify for this new automatic relief, they can petition the court under the factually innocent or CARE standards.

    If my record is sealed, is it gone for good? Or can it still be used against me?

    When a petitioner receives a seal under the “factually innocent” standard, their record is marked as “SEALED,” and no one, including law enforcement agencies, can use the arrest against them. The only person who can do anything with that arrest record is the petitioner themselves (e.g., if they want to sue the police or file a wrongful arrest complaint). Then, three years after the granting of the order, the sealed documents must be physically destroyed.

    For a seal under the CARE or Clean Slate Acts, the documents relating to the arrest are still stamped as sealed. They are not accessible to the public.

    In public, the petitioner can say that they were never arrested for that crime. A petitioner is only required to disclose the arrest under specific circumstances such as:

    • when applying for a job in law enforcement;
    • when applying to hold a position in public office;
    • when obtaining a license by a state or local agency; or
    • when attempting to receive a contract with the California State Lottery Commission.

    The arrest will not appear on public background checks because members of the public cannot disseminate any information about a sealed arrest record. If they do reveal facts of the arrest, they can be fined between $500-$2,500 for each violation.

    However, unlike under the “factually innocent” order, the documents sealed under a CARE order are not physically destroyed. Instead, law enforcement agencies can still look at the arrestee’s file if needed, and the arrest can be used against the arrestee in subsequent criminal proceedings.

    Having a criminal defense attorney at your side is always important—from advising you on what actions you can take against any law enforcement agency or officer to making sure anyone who might misuse a sealed record is held accountable. Contact the lawyers at the Law Offices of David S. Chesley today to discuss your case.

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    • Multiple defendants each facing 7 years charged with smuggling prescription drugs into California from Mexico our client was the only defendant who received NO JAIL TIME!

    • Client facing 5 years for possession of deadly weapon we negotiated a plea for NO JAIL TIME!

    • Client facing 3 life terms for multiple felony counts of Child Molestation and Sodomy with child we proved the charges were fabricated by victims mother DISMISSAL of all charges at preliminary hearing!

    • Strike case: Client charged with possession of methamphetamine facing 25 years we filed a Romero Motion which was granted case REDUCED TO MISDEMEANOR!

    • Client’s estranged girlfriend alleged Client broke into her room and choked her facing 14 years in State Prison we won at trial JURY ACQUITTAL.

    • Police allegedly discovered 3 bags of marijuana in client’s glove box faced 6 years we filed a 1538.5 motion to suppress resulting in DISMISSAL of all charges!

    • Client allegedly sold rock cocaine to undercover officer faced 10 years following our argument client received NO JAIL TIME!

    • Client facing 15 years for Armed Robbery we proved misidentification Judge DISMISSED the case!

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