Record sealing and expungement are legal tools to start from a clean slate after a criminal arrest or conviction. They help ensure that your past criminal involvement does not interfere with your current life. With a clean record, you can pursue housing, employment, and educational opportunities without concern. The two eliminate some of the adverse effects and disabilities of a criminal record. However, they are not the same; they apply differently in different situations.
If you have a criminal record and want to start from a clean slate, a skilled criminal attorney will ensure you understand the difference between record sealing and expungement. The attorney will also help you choose the most appropriate tool for your situation and fight for a reasonable outcome.
An Overview of Record Sealing
Record sealing is a court process by which some arrest and criminal records are made unavailable to the public. This can happen automatically in some situations through California SB 731, or the Clean Slate law, which went into effect on July 1, 2023. Other situations will require you to go through a court process by filing a petition with the court. When a court seals a record automatically or through a granted petition, the record becomes unavailable to the general public except for some government agencies. However, some government agencies, like the police, can access sealed records. A sealed record is also not disclosed when applying for a job, license, or certificate. It remains in the state's summary criminal history information database. It can only be disclosed for criminal justice purposes.
Automatic Record Sealing Under SB 731
The Clean Slate Act, or SB 731, is a California criminal justice reform statute that allows for the automatic sealing of criminal records. The law has been in effect since 2023. The act only allows the automatic sealing of some criminal arrests and convictions, with specified timelines, based on the nature of an offense. Its aim is mainly to reduce the long-term effects of criminal records, which affect individuals’ efforts to find employment and housing.
This statute advocates for sealing records for most cases, including non-serious and non-violent felony convictions. These will be sealed four years after the end of the case, as long as the offender has not committed another crime within that period. The beneficiary does not have to petition the court for record sealing to benefit from automatic record sealing. The Department of Justice handles the processes through monthly audits, eliminating the need to petition the court.
Specifically, dismissed cases, whether felonies or misdemeanors, can be eligible for sealing. Records for felony and misdemeanor convictions that result in probation are sealed right after you complete probation. Misdemeanor convictions that did not result in a sentence are automatically sealed one year after the case ends. A felony arrest that did not amount to criminal charges can be sealed three years after the arrest, provided you meet certain conditions. However, this rule does not apply to violent and grave felonies or sex crimes that lead to registration in the sex offender registry.
Automatic Record Sealing Under PC 851.93
This, too, allows for automatic sealing of criminal records without the need for a petition to a court. However, you have to meet the following criteria to qualify for the automatic sealing of your criminal records:
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The arrest occurred after January 1, 1973
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The arrest was for a misdemeanor offense, whose charges were dismissed
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There is no indication that a criminal proceeding was initiated at least one year after the misdemeanor arrest, and no conviction happened, or you were acquitted of all charges that arose from the arrest.
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It was a felony arrest that did not lead to a criminal proceeding at least three years after the arrest, no conviction occurred, or you were acquitted of all charges that arose from the arrest.
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The arrest was for a crime punishable by at least 8 years in prison. Still, there is no indication that a criminal proceeding was initiated for that case for at least six years since the arrest, and no conviction has happened regarding the matter, or you were acquitted of all charges resulting from that arrest.
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You complete a prefiling diversion program for the arrest, administered by the prosecutor instead of filing charges in a criminal court.
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You completed a drug diversion program administered by a criminal court judge under PC 1000 or PC 1000.8
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You completed a pretrial diversion program under PC 1000.4 or PC 1001.9.
Record Sealing Through Petition
Not all criminal arrests and convictions are automatically sealed in California. You can petition a court to seal your criminal records if you do not qualify for automatic sealing. This can be done in the following circumstances:
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Through PC 851.91
This law allows you to petition a court to seal your arrest records if the prosecutor did not file criminal charges following your arrest. You can also petition under this law if a court acquitted you of all criminal charges regarding the arrest you wish to seal.
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Sealing of Juvenile Records
If an arrest or conviction occurred when you were a minor (18 years or younger), you can petition the court to seal your juvenile criminal records after becoming an adult. You can file this petition with the probation department or court where your case was heard and determined. The probation department will review your petition to make recommendations that the judge will consider in granting or denying your petition.
An Overview of Record Expungement
Although record sealing is similar to record expungement, they are different legal processes under other statutes that offer similar but different results. Record expungement occurs after a criminal conviction and sentencing. Through this process, you can remove a record from your criminal history by changing its status so that anyone running a background check will see it as dismissed. This way, it eliminates all the negative disabilities and consequences of having a criminal background.
When you are arrested and charged with a crime, and the prosecutor takes the case to trial, a criminal court can dismiss or convict you. When a case dismissal occurs, the arrest remains in your criminal record but can be automatically sealed without a petition. However, if a court finds you guilty of one or all your charges, you are sentenced according to the penalties provided under the law for your specific charges. The conviction record remains in your criminal account indefinitely unless a court expunges it.
After completing your sentence and complying with all the conditions the judge set during sentencing, you can file a petition to expunge the conviction record. Otherwise, anyone who runs a background check on you will know of the conviction and the crime for which you were convicted. This can affect your eligibility for most jobs, housing, and the rates for critical services like insurance and credit.
An expungement seeks to clear a conviction record, restore your good name, and make your life easier after serving your sentence and turning away from crime. However, it does not happen automatically; you must petition the court to expunge your criminal record. You must demonstrate that you have served your sentence and complied with all the sentencing requirements for the court to grant your petition.
If the court grants your petition, it will dismiss the records for the case you wish to expunge. This way, except for some government workers, no one will access your arrest or conviction records. An expungement also frees you from revealing information about the matter.
Requirements for Expungement
First, you must have been convicted of a crime to petition for expungement. After the conviction, you must serve your sentence and meet all sentencing requirements, like paying a fine or victim restitution. You must wait for a specific period after completing your sentence and abide by all the terms and conditions of your sentence or probation to file the petition.
However, you could be ineligible for expungement if you serve another sentence or face charges for another crime. Additionally, some felonies are not considered for expungement, including felonies that result in a prison sentence. Suppose your conviction was for a sex crime that requires registration in a sex offender registry. In that case, you must continue registering for the required period, even after the court expunges your conviction record.
Remember that a criminal conviction remains in your record even after serving your sentence and fulfilling all the court requirements for your conviction. Since criminal records are publicly available, anyone can access information about your arrest, charges, and conviction through a quick background check. Thus, a criminal record will continuously hang over your head, affecting all aspects of your life. Expungement clears the record, doing away with all the negative impacts of the arrest, charges, and conviction on your life. Then, you can easily obtain employment, rent in a good neighborhood, enroll in a college or university, obtain financial aid, and even travel outside the country.
Expunging a Misdemeanor
Misdemeanors are easier to expunge than felonies in California. They are less severe and are generally punished through a fine and probation. Probation conditions after a misdemeanor conviction often include paying court fines, restitution, engaging in community service, and submitting periodic progress reports to the court. Misdemeanor probation also lasts for between one and three years. These are some of the reasons you can easily expunge a misdemeanor conviction. However, the process mainly depends on the severity of the misdemeanor since some misdemeanors are less severe than others.
If your conviction is for a simple misdemeanor or you are a first-time offender, you will likely face fewer difficulties filing for expungement. Criminal court judges will likely grant your petition, provided there is proof that you have met all the terms and conditions of your sentence. The process starts when you file an expungement petition in the same court where the conviction occurred. The judge will review the petition and details of your case to grant or deny your petition.
You could face some difficulties filing for expungement for a severe misdemeanor or if your criminal record is serious. However, this does not mean that your chances of success are low. A skilled attorney will zealously fight to ensure the court grants your request. Examples of misdemeanors that could be difficult, but not impossible, to expunge include theft, assault, and some DUI convictions. The severe misdemeanors are mainly wobblers, which means they can be charged as felonies or misdemeanors. If you are charged with a felony for a wobbler offense, you have to have it converted to a misdemeanor to expunge.
Notable Differences Between Record Sealing and Expungement
Although record sealing and expungement offer almost the same benefits, it is crucial to understand their difference. This will help you decide whether to file for record sealing or expungement in your case. Working with a skilled criminal attorney makes all this easy. They will help you understand what each option offers, the difference, and the option that will benefit you the most at a particular time. Here are some of the differences for your consideration and decision-making:
They Are Filed at Different Times in the Legal Process
You cannot be eligible for record sealing and expungement simultaneously, because both tools work at different times in a legal process. When you are arrested for a crime, the arrest can result in a trial and sentence. Some arrests stop at the booking process when the prosecutor realizes that they do not have sufficient evidence to file the case in court. However, the arrest record remains and can be accessed through a background check by a potential employer or landlord.
Sealing criminal records is mainly done for arrests that did not result in a conviction. Expungement is generally offered for criminal cases that resulted in a sentence. Understanding this will help you know whether to file for record sealing or expungement, depending on how far your case progressed after an arrest.
Sealed Records are Accessible, While Expunged Files are Inaccessible
Record sealing hides your arrest records from public view, but the documents can be accessed through a court order. For example, suppose you have a juvenile criminal record and commit a crime as an adult. In that case, the prosecutor can subpoena your sealed juvenile files if they are relevant to the current case. A sealed arrest record can also demonstrate a pattern of criminal acts in a current case.
Expunged files are marked dismissed on your criminal record. Although they may not affect some aspects of your life, you must disclose the expunged record when applying for a public position.
They Serve a Different Purpose
There are different reasons why courts seal records and expunge criminal records. The purpose of sealing a criminal record is to prevent a person’s criminal past from becoming publicly known. The records are hidden from public view but remain in the background. This makes them accessible to law enforcement, prosecutors, and judges if needed in a particular situation.
On the other hand, expungement gives a convicted offender a fresh start in life. Having a conviction record affects your eligibility for employment, housing, credit, and insurance services. The impact of a conviction can continue for years, even after serving your sentence and changing your ways. Expungement deletes the criminal conviction to give you a fresh start in life. You will no longer live under the shadow of your criminal past.
Eligibility Criteria for Record Sealing and Expungement Are Different
Some people automatically qualify for record sealing based on the circumstances of their arrest and how the court resolved the matter. You could automatically qualify for record sealing if you were mistakenly arrested or completed a diversion program and the prosecutor does not file criminal charges against you.
The qualification criteria for expungement are different. The record must be of a misdemeanor or a felony that can be reduced to a misdemeanor. You must also not be facing charges or serving a sentence for a second crime. Additionally, you must have completed probation and met all the terms and conditions of your conviction to file for expungement. Once you meet the criteria, you must file a court petition and await the judge's approval. The judge can grant or deny the expungement petition.
Find a Competent Criminal Defense Attorney Near Me
A damaging criminal record in Los Angeles can affect various aspects of your life, including your professional and social lives. Since criminal records are publicly available, anyone can find out about your arrest, conviction, and sentence by running a background check on you. However, you can protect yourself through record sealing or expungement. The exact tool you use depends on your criminal record type.
At The Los Angeles Criminal Defense Attorney, we understand how important it is to protect yourself from the damaging effects and disabilities of a criminal record. We can review your case to advise whether to go for record sealing or expungement. We will also help you through all complex legal processes and fight to ensure your best interests are served. Call us at 310-564-2605 for a detailed overview of record sealing and expungement and to understand our services better.
