Sealing Arrest Records
Any arrest by a law enforcement agency means that there will be records of the entire incident(s). These records become accessible to the general public during background checks. However, following the amendment of the Section 851.90 of the California Penal Code, individuals who have been arrested but not convicted of a crime can petition a court to have their arrests records sealed to the general public. The governor of the state of California signed into law the Consumer Arrest Record Equity (CARE) Act last year as a means of helping people right their wrongs. The CARE Act provides accused individuals with an opportunity to start afresh without experiencing discrimination based on their history of arrest.
Eligibility for Petition
For the court to grant the request to seal records, the accused must meet certain requirements. For example, records can only be granted a seal under CARE if an arrest never ended in a conviction. Other conditioned for approval include:
There were no charges filed following an arrest
Charges were filed but they were dismissed before conviction
Charges were filed, the accused proceeded to trial but the court made a no guilty ruling
The accused was not convicted following a successful pre-trial diversion program
A person accused of an offense is ineligible to petition for such action under the following conditions:
If the statute of limitations of the crime has not yet expired making them subject to newer charges
Following an arrest for murder with no trial leading to acquittal
If an individual intentionally evaded prosecution either through fraudulent activities or fleeing jurisdiction.
Even if the law states that granting a request to sealing records is a right for each individual arrested and not convicted for a crime, there are exceptions to this rule. For example, people who have been arrested several times for either child, domestic, or elder abuse may have a difficult time trying to prove that sealing their records would the interests of justice. In other words, if the individual shows a pattern of arrests in any form of humanitarian abuse, their chances diminish drastically. This law tends to favor those with a relatively clean background since courts often look to meet the needs of the public first.
The Process of Sealing Arrests Records
Contrary to what many people believe, the process of getting one’s arrest records sealed is not automatic. Sealing one’s records requires great knowledge, time, and patience. To initiate the process, the defense attorney must file a petition in the court or city where the arrest occurred. The defendant then serves the petition to both the law enforcement agency that carried out the arrest and the prosecution. The petition must include details relevant and crucial to the case including the name and date of birth of the accused, the date of the arrest, the city or county of arrest, the name of the arresting law enforcement agency, the charges filed, and a statement showing why the court should grant the petition.
Once the petition is shared among the parties, the prosecuting attorney may request a hearing to argue why the court should grant the request. The judge will then examine your records to determine whether such an action will serve the interests of justice. If successful, the court will relieve the accused of all penalties and liabilities. The court will also forward the order to the arresting law enforcement agency, Department of Justice, and local agency in charge of history records. From this point on, the arrest is sealed and will not appear in background checks.
Benefits of Sealing Arrest Records
The most obvious benefits of having one’s arrest records sealed is that it opens up more employment opportunities and activities. Employers usually conduct background checks to determine whether their potential employees are law-abiding. An arrest record is reason to exclude an individual for potential employment. Sealing one’s records makes them eligible for professional certificates, licenses, loan application and housing relief.
Despite the benefits of sealing arrest records, those arrested or charged for misconduct may face a difficult journey trying to prove why their records should be sealed. The burden of proof falls on the defendant to show that they have faced hardships as a result of such a record and evidence of rehabilitation. People who wish to have their records sealed are advised against seeking such action without legal advice. Californians should also keep in mind that a sealed record does not mean complete discretion. The record can still be used against you when facing future charges. These records are also accessible to the criminal justice agency for reference and periodical assessment. Moreover, the law requires people who have had their records sealed to disclose the record information to a public office, peace officer employment position, and state licensing. People who wish to have their records sealed are advised against seeking such action without legal advice since the process requires vast knowledge and experience in criminal law.