Having a criminal record in California does not necessarily mean that an individual has been convicted of a crime. Anyone who is arrested but is not subsequently charged with or convicted of an offense may have the incident become part of their criminal record. Thus, the mere act of being arrested, even if no charges were ultimately filed, may appear on an individual’s record, and have adverse effects later, such as negatively impacting an opportunity to get a job.
While California law allows the expungement of criminal records which have resulted in convictions, it also permits those who have been arrested but never convicted to have their California arrest records sealed and destroyed as a matter of right (automatically). Sealing and destroying arrest records under California Penal Code § 851.87 is a totally different process than expunging records of criminal convictions under California Penal Code § 1203.4.
California Penal Code § 851.87 allows an arrest record sealed as a matter of right when:
- No criminal charges were ever filed;
- Criminal charges were filed but dismissed later;
- The defendant was acquitted – found “not guilty” – in a jury trial;
- The defendant’s conviction was overturned on appeal; or
- The defendant successfully completed a pretrial diversion or pre-sentencing program.
An exception to sealing an arrest record as a matter of right is when the person arrested has a history of arrests and/or convictions for domestic violence and the abuse of children and/or elders. Nonetheless, even in these cases, the court may still seal an arrest record if the judge determines it would serve the interests of justice.
Once arrest records have been sealed and destroyed, any records related to the arrest, including police reports, fingerprints, booking photos, and other entries are deleted. Persons are also declared, “factually innocent” of the charges and allowed to state that they have never been arrested for a crime. Thus, this allows an individual to legally reply, “no,” when applying for a job if a prospective employer asks whether he or she has ever been arrested.
Sealing an arrest means the record will not appear on most criminal background checks in California, other than those made by any law enforcement authorities. Expungement, record sealing, and other post-conviction relief proceedings may be very complicated legal matters depending on the facts of the original case. If the State of California objects, a post-conviction relief matter may assume even more complexity.
John Patrick Dolan has over forty years of experience helping well-intentioned Californians clear their criminal records and continue making present contributions to the Coachella Valley as valued members of the community. Call the Dolan Law Firm today at (760) 775-3739 or find out more online here.