Pre Conviction Services

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Who Qualifies For Arrest Record Sealing?

Penal Code section 851.91 expressly sets forth who qualifies to have their arrest record sealed. Relief is available for those petitioners who suffered an arrest that did not result in a conviction.  An “arrest that did not result in a conviction” can occur in four different ways:

(1) the petitioner was arrested but the statute of limitations ran and no charges were filed;

(2) the petitioner was arrested, charges were filed but were dismissed, and can no longer be refiled;

(3) the petitioner was arrested, charges were filed, but the petition was acquitted at trial; or

(4) the petitioner was arrested, charges were filed and the petitioner was convicted, but the sentence was vacated or reversed on appeal and can no longer be refiled

Example #3: Johnny was arrested for a felony and charges were filed. Johnny exercised his right to a jury trial. At the end of trial, the jury acquitted Johnny of the felony charges. Johnny would be eligible for relief because although he was arrested and charges were filed, he was acquitted at trial.

*https://openjustice.doj.ca.gov/exploration/crime-statistics/arrests

**https://openjustice.doj.ca.gov/exploration/crime-statistics/arrest-dispositions

Who Does Not Qualify For Arrest Record Sealing?

Likewise, Penal Code section 851.91 expressly sets forth who does not qualify to have their arrest record sealed. Relief is not available if:

(1) the petitioner can still be charged for a crime which the arrest was based on;

(2) the arrest was for murder or another offense where no statute of limitation exists;

(3) the petitioner intentionally evaded law enforcement efforts to prosecute the arrest (i.e. fleeing the jurisdiction); or

(4) the petitioner intentionally evaded law enforcement efforts by engaging in identity fraud and was subsequently charged with a crime for the act of identity fraud.

Example #3: Johnny was arrested for a misdemeanor. Johnny fled the jurisdiction and went to Belize in an effort to prevent prosecution. Some years later, the prosecutor dismisses the charges against Johnny. Johnny would not be able to seal his record because he intentionally evaded law enforcement efforts to prosecute his arrest.

Of Right vs. Discretionary

Like expungements, petitions to seal an arrest record can be “of right” or “discretionary.” When a petition to seal an arrest record is “of right,” it means it is automatic: the court has no discretion to deny the petition and must grant the petitioner relief.

On the other hand, when a petition to seal an arrest record is “discretionary,” the petition is not automatic: the court, in its discretion, can choose whether to grant the petitioner relief or not. If a petitioner falls into one of the four categories listed above for relief, their petition will be “of right” and the court will have no discretion to deny their petition. However, Penal Code section 851.91 lists an exception to this general rule. A petitioner is not entitled to have their petition to seal their arrest record granted “of right” if their criminal record shows a “pattern” of (1) domestic violence, (2) child abuse, or (3) elder abuse. The Legislature defined “pattern” as “two or more convictions, or five or more arrests.”

Example #3: Johnny was arrested for a misdemeanor on January 1, 2020. The statute of limitations for a misdemeanor are 1 year. By January 1, 2021, the prosecution did not file any charges against Johnny. Johnny, however, has 6 previous arrests for elder abuse. Johnny’s petition to seal his arrest record will not be “of right” due to having a pattern of elder abuse arrests on his record.

Although a petitioner may have a “pattern” of convictions or arrests, that does not mean they are not entitled to relief. The exception to the general rule only renders the petition “discretionary.”

So, even if a petitioner has a “pattern” of elder abuse convictions or a “pattern” of domestic violence arrests, they can still petition the court for relief. Instead of having their petition granted “of right,” the burden is on the petitioner to demonstrate that the “interests of justice” warrant sealing the arrest record. The court may consider any relevant factors in determining whether the interests of justice would be served by sealing an arrest record. Thankfully, the Legislature have provided some relevant facts to help guide the court’s decisions. These factors include (1) hardships to the petitioner caused by the arrest; (2) declarations or evidence regarding the petitioner’s good moral character, (3) declarations or evidence regarding the arrest; or (4) the petitioner’s record of convictions. Therefore, it is important for a petitioner to have the assistance of counsel in demonstrating to the court that the interests of justice would warrant sealing the arrest record.

How Do I Get Started?

 Let Go Legal has made the process of sealing an arrest record easy for anyone seeking to seal their record. We start with a preliminary case evaluation to determine whether you qualify for relief. If we determine during our initial assessment that you qualify for relief, we will then obtain all requisite documents on your behalf to confirm that you are eligible for arrest record sealing relief. There is nothing you need to do except reach out.

After obtaining your documents, we then start on your petition. A petition to seal an arrest record must be filed in: (1) the court in the county where charges were filed, or (2) if no charges were filed, in the court in the county which the arrest took place. The petition must include:

(1) the petitioner’s name and date of birth,

(2) the date of the arrest,

(3) the city and county where the arrest took place, and

(4) identify the law enforcement agency that made the arrest.

Once we have your petition drafted, we file it with the court. The court will then set a hearing date. Notice of the petition and hearing must be served on the district attorney of the city or county in which the arrest occurred, and upon the law enforcement agency that made the arrest. Both the district attorney and arresting law enforcement agency must be served at least fifteen (15) days prior to the hearing. Let Go Legal handles all of this on your behalf.

What If There Is a Hearing?

A hearing will take place on the petition. The petitioner has the burden of proof to demonstrate that they are entitled as a matter “of right” to have their arrest record sealed. In these situations, the petitioner’s burden is fairly easy as both the court and the district attorney can determine from the face of the petition whether the petitioner deserves to have their arrest record sealed as a matter of right. Let Go Legal will appear at this hearing and demonstrate to the court that your petition must be granted “of right.”

In the situation that the petition is not “of right” and is “discretionary,” the burden of proof is again on the petitioner to prove that the interests of justice warrant sealing the arrest record. Let Go Legal will appear on your behalf and prove that the interests of justice warrant sealing your arrest record.

Once we make this showing, the burden shifts to the prosecution. If the court grants your petition,  all records—police reports, fingerprints, and booking photos—are deleted. Moving on with your life, you can truthfully check “no” if you are ever asked if you have been arrested, whether it is an employment application or housing application. However, the relief from having your arrest record sealed does not relieve you of the duty to disclose the arrest if you are required to do so by law.

Accordingly, it is important to have competent counsel assist you in sealing your arrest record. Let Go Legal will competently evaluate your case file to ensure that all procedures are complied with. This also includes gathering all pertinent documents on your behalf, filing and serving the appropriate district attorney and arresting law enforcement agency, as well as appearing on your petition to argue to the court that relief must be granted—whether “of right” or “discretionary.”

Free Initial Consultation

Allow Let Go Legal help you let go of your past and move forward in life.  We handle all matters on your behalf starting with our initial consultation. There is no cost to determine whether you are eligible for relief. We will gather the requisite documents on your behalf, draft and file your petition, and appear on your behalf in court to obtain the relief you need. Our flat fee prices include everything. There are no hidden costs.  Don’t wait any longer. Start the process today and see if you qualify for relief.

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