The Striking Differences Between the Only 2 Ways to Seal Your Arrest Record in California
In California, there are now two ways to seal the record of an arrest that did not result in a conviction: (1) by obtaining a finding of Factual Innocence; and (2) by sealing the arrest record via a new law known as the Consumer Arrest Record Equity (“C.A.R.E.”) Act, which took effect on January 1st, 2018.[i]
Too often, people are passed over for jobs or as tenants simply because an arrest — not a conviction, just an arrest — appears on their criminal background check. Passed in California as Senate Bill 393, the C.A.R.E. Act was designed to remove barriers to employment and housing faced by those whose arrest never resulted in a conviction.[ii]
The following is a comparison of these two methods of sealing an arrest record — Factual Innocence and the C.A.R.E. Act — in terms of eligibility, procedure, extent, and time constraints.
Eligibility
- Factual Innocence: You are eligible to seal your arrest record by factual innocence if:
- The C.A.R.E. Act: Similarly, you are eligible to petition the Court to seal your arrest record if:
- you were arrested, no charges were filed, and the statute of limitations (read: the deadline for the prosecutor to file charges) has expired on each charge that you were arrested for; [vi]
- you were arrested, and charged, but the case did not result in a conviction;[vii]
- you were acquitted by a jury;[viii] or
- your conviction was reversed on appeal.[ix]
Additionally, to be eligible to petition the Court under this new method, it must also be true that:
-
- You were not arrested for murder or for any other crime for which there is no statute of limitations;[x]
- You did not try to evade authorities’ efforts to prosecute you;[xi]
- You did not engage in identity fraud to evade authorities’ efforts to prosecute you and you were not subsequently charged with identity fraud for having done so.[xii]
In terms of eligibility, both methods are nearly identical. Each method is available in the most common scenarios when an arrest does not result in a conviction: no charges are filed, the case is dismissed, or acquittal.
The differences? The C.A.R.E. Act affords an additional scenario (reversing your conviction on appeal) in which you can seal your arrest record, and Factual Innocence does not require you to wait until the statute of limits has expired before seeking relief.
This is especially beneficial when the underlying arrest was for a felony. Felonies, at minimum, have a 3-year statute of limitations.[xiii] For more serious felonies, that timeframe is even longer.[xiv] If eligible, you can use Factual Innocence to begin the process of sealing your arrest record sooner.
What’s Next If I’m Eligible?
- Factual Innocence:
- If no charges were filed, you’ll first have to ask the police and the prosecutor to deem you Factually Innocent.[xv] The authorities have up to 60 days to respond to your request and can even ignore it altogether.[xvi] Only after the police and the prosecutor deny your request are you permitted to seek a finding of Factual Innocence from the Court. In short, if you were arrested and no charges were filed, seeking a finding of Factual Innocence will put you at the mercy of the authorities.
- If you were arrested and charged, but the case did not result in a conviction, then the Court can deem you Factually Innocent at the time your case is dismissed — but only if the prosecutor agrees with the decision. If the prosecutor objects, then you must ask for a separate hearing for the Court to consider if you are Factually Innocent.[xvii]
- If you were found not guilty by a jury, then the Court is free to deem you Factually Innocent upon your acquittal.[xviii]
Sure, you may have to consult with the prosecutor before you can plead your case for Factual Innocence to the Court.
But if your arrest did not result in a conviction — because no charges were filed, the case was dismissed, or you were acquitted — then you should be found factually innocent, right? Nope.
That’s because Factual Innocence is a very difficult thing to prove. In order to establish your Factual Innocence, the burden is on you to prove that police had no reason to have suspected you of committing a crime.
In the seminal case of People v. Adair, a woman was acquitted of murdering her husband. The California Supreme Court ruled that an acquittal does not guarantee a finding of Factual Innocence. Even though the prosecutors couldn’t prove the case beyond a reasonable doubt, there was enough circumstantial evidence to cast a cloud on the woman’s innocence. In short, for a Court to find you Factually Innocent, you must provide evidence that exonerates you.[xix]
You can see, then, how a finding of Factual Innocence would be unlikely in a dismissed DUI arrest if the accused was driving, or if no charges were filed (because of Fourth Amendment considerations) against a person carrying a concealed weapon. In both instances, even if the arrest did not result in a conviction, police had good reason to believe that each person was involved in criminal conduct.
- The C.A.R.E. Act:
There is one exception. If: (1) the charges you were arrested for relate to domestic violence, elder abuse, or child abuse; and (2) you have a pattern of repeating the same behavior for which you were arrested, then the Court’s decision of whether to seal your arrest record becomes discretionary, and you must submit a written declaration explaining why sealing your arrest record would serve the interests of justice.[xxii]
What Happens Once I Seal My Arrest Record?
- Factual Innocence: You will receive from police a document stating that you have been found Factually Innocent and are thereby exonerated of the charge that you were arrested for.[xxiii] The arrest will be deemed to have never occurred and, as a result, you can lawfully answer “no” whenever asked if you’ve been arrested before[xxiv] — for instance, in an application for a job, a rental application, or a state license.
- The C.A.R.E. Act: The arrest won’t disappear from your criminal record, but a notation will appear next to it indicating that the arrest record has been sealed pursuant to the C.A.R.E. Act.[xxv] However, unlike with Factual Innocence, you must still disclose your conviction if[xxvi]:
- you wish to run for public office;
- you strive to become a peace officer;
- you seek a license from a state agency; or
- you contract with the State Lottery Commission.
Even if sealed under the C.A.R.E. Act, your arrest record may be viewed by prospective employers when applying for a job with a public utility or cable company[xxvii] or with a city or county governmental office.[xxviii] In either instance, once the prospective employer learns of your sealed arrest record, the entity is not allowed to discriminate against you because of it.[xxix]
Moreover, the C.A.R.E. Act prevents your sealed arrest from being disclosed to unauthorized third parties (such as a background check agency).[xxx] A disclosure of your arrest to an unauthorized third party can result in a civil penalty of up to $2,500.[xxxi]
How Soon Must I Start the Process?
- Factual Innocence: You must seek relief within 2 years from the date that you were arrested or the date that you were charged by the prosecutor, whichever occurred later.[xxxii] Unless there is “good cause” (read: a very good reason) that you failed to seek relief within the 2-year period, your request will be denied.[xxxiii]
- The C.A.R.E. Act: There is no timeline to petition the Court. If you are eligible to seal your arrest record under the C.A.R.E. Act, then you are free to file your petition whenever you wish, even if that’s more than 2 years after you were arrested.[xxxiv]
Conclusion
As of January 1st, 2018, persons whose arrests never resulted in a conviction have two ways to seal the record of their arrests. A finding of Factual Innocence offers more protection, but requires more cooperation from the authorities and operates under a stricter timeframe. Petitioning the Court under the C.A.R.E. Act is a more straightforward process, but still requires disclosure in some instances even after an arrest is sealed.
A person who wishes to seal a record of arrest would be wise to consult with a skilled criminal defense attorney regarding which method — seeking a finding of Factual Innocence or petitioning the Court under the C.A.R.E. Act — would best suit his or her unique circumstance.
[i] Penal Code §851.91. See also Penal Code §851.91(b)(3).
[ii] http://www.thesfnews.com/senate-bill-393-signed-governor-brown/40949
[iii] Penal Code §851.8(a).
[iv] Penal Code §§851.8(c), (d). This can occur if, for instance, the judge dismissed the case in the interests of justice, pursuant to Penal Code §1385; or if the judge dismissed the case during the trial for lack of sufficient evidence, pursuant to Penal Code §1118.
[v] Penal Code §851.8(e).
[vi] Penal Code §851.91(a)(1)(A).
[vii] Penal Code §851.91(a)(1)(B)(i).
[viii] Penal Code §851.91(a)(1)(B)(ii).
[ix] Penal Code §851.91(a)(1)(B)(iii).
[x] Penal Code §851.91(a)(2)(B).
[xi] Penal Code §851.91(a)(2)(C).
[xii] Penal Code §851.91(a)(2)(D).
[xiii] Penal Code §801.
[xiv] Penal Code §§799 et seq.
[xv] Penal Code §851.8(a).
[xvi] Penal Code §851.8(b). If the police and prosecutor ignore your request, their failure to respond will be considered a denial. See same.
[xvii] Penal Code §§851.8(c), (d).
[xviii] Penal Code §851.8(e).
[xix] In People v. Adair (2003) 29 Cal. App. 4th 895, a jury, through circumstantial evidence, found that a woman was not guilty of murdering her husband. Afterward, the woman petitioned the court to seal the portion of her record indicating that she had been arrested for murder. Her petition was initially granted by the trial court, but ultimately denied by the California Supreme Court on appeal. The High Court ruled that a not guilty verdict based on circumstantial evidence is not enough to establish the standard of “factual innocence.” “ ‘Factually innocent’ … does not mean a lack of proof beyond a reasonable doubt[.] … Defendants must show that the state should never have subjected them to the compulsion of the criminal law — because no objective factors justified official action. … In sum, the record must exonerate, not merely raise a substantial question as to guilt.” People v. Adair (2003) 29 Cal. App. 4th at 909. (Emphasis added.) Note: The verdict of not guilty was undisturbed.
[xx] Penal Code §851.91(c)(1).
[xxi] Penal Code §851.91(d)(1).
[xxii] Penal Code §§851.91(c)(2)(A)(i), (b)(1)(E)(vii).
[xxiii] Penal Code §851.8(f).
[xxiv] Penal Code §851.8(f).
[xxv] Penal Code §851.92(b)(2).
[xxvi] Penal Code §851.91(e)(2)(B)(ii).
[xxvii] Penal Code §11105(c)(10)(a)(i).
[xxviii] Penal Code §11105(b)(11).
[xxix] Penal Code §§11105(b), (c). See also Labor Code §432.7(a)(1), Civil Code 1786.18(a)(7), 2 C.C.R. 11017.1(b)(1).
[xxx] Penal Code §§851.92(b)(5), 851.92(d)(4). Once an arrest that did not result in a conviction is sealed, it cannot be disclosed to anyone other than you or a “criminal justice agency” such as the district attorney’s office, the public defender’s office, or a probation or parole department. If disclosure is needed, the employment protections of Labor Code §432.7 still apply. See Penal Code §§11105(b), (c).
[xxxi] Penal Code §§851.92(c), (b)(5).
[xxxii] Penal Code §851.8(l).
[xxxiii] Penal Code §851.8(l).
[xxxiv] Penal Code §851.91(a). [No mention of a timeframe included in the statute.]
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
