Before January 1, 2018, a person who was arrested but never charged, or who had his or her charges dismissed, would have to live with an arrest on his or her record, or file a difficult to win Motion for a Finding of Factual Innocence. Great news, a new California law changes this! The burden of having an arrest record can come back to haunt you despite CA laws prohibiting most employers from using it against you. Penal Code section 851.91 may allow you to have your arrest record sealed, see below.
If you were:
- Arrested but never charged (and the statute of limitations for the crime has elapsed)
- Arrested and charged, but the charges were dropped (and the charges can’t be re-filed)
- Acquitted of the charge after a trial
- Convicted, but the conviction has been vacated or reversed on appeal, all appellate remedies have been exhausted, and the charge may not be refiled
Then you are entitled to have your record of arrest sealed “as a matter of right,”
UNLESS you were arrested for, or charged with:
- Domestic violence, if your record demonstrates a pattern of domestic violence arrests, convictions, or both.Child abuse, if your record demonstrates a pattern of child abuse arrests, convictions, or both.
- Child abuse, if your record demonstrates a pattern of child abuse arrests, convictions, or both.
- Elder abuse, if your record demonstrates a pattern of elder abuse arrests, convictions, or both.* “Pattern” means two or more convictions, or five or more arrests, for separate offenses occurring on separate occasions within three years from at least one of the other convictions or arrests.
IF arrested for, or charged with one or more of the above crimes, and there is a “pattern” demonstrated, then you must prove that it is in the “interests of justice” for the court to grant the sealing of your arrest record, and it is within the court’s discretion to grant or deny this relief.
You aren’t eligible for this relief if:
- You may still be charged with any of the offenses upon which the arrest was based.
- Any of the arrest charges, as specified by the law enforcement agency that conducted the arrest, or any of the charges in the accusatory pleading based on the arrest, if filed, is a charge of murder or any other offense for which there is no statute of limitations, except when the person has been acquitted or found factually innocent of the charge.
- You intentionally evaded law enforcement efforts to prosecute the arrest, including by absconding from the jurisdiction in which the arrest took place. The existence of bench warrants or failures to appear that were adjudicated before the case closed with no conviction do not establish intentional evasion.