Criminal Defense Q&A: I Was Arrested for a Misdemeanor, But It Was Reduced to an Infraction — Am I Eligible to Seal the Record of My Arrest?

Question:

10 years ago I was arrested and charged with a traffic misdemeanor of driving on an expired license. The court reduced it to an infraction, and it fell off my record. The court confirmed that I have no criminal convictions on my record. However, my arrest from that night with the charge of misdemeanor still shows up on my Livescan background check. I petitioned to get the record sealed and destroyed by the police department that arrested me, but they denied me.

Am I incorrect to think I am eligible in California to have these records sealed/destroyed? I am trying to figure out why they denied me. If I am eligible, I will petition the court to do so.

Answer:

Petitioning the Court to seal your arrest record is available only if your arrest did not result in a conviction. Penal Code 851.8, 851.91. Once you receive a conviction, you can no longer seal your arrest. Your background check should reflect that you were arrested for a misdemeanor, but that your were ultimately convicted of an infraction.

Although you are ineligible to seal your arrest record, you are eligible to petition the Court to expunge your infraction. See Penal Code 1203.4a. Doing so will not remove the conviction from your record, but will add an annotation next to it stating that the infraction has been expunged.

The benefit of expunging your conviction? Once you do, you will no longer have to disclose it in job applications going forward–unless you are applying to be a peace officer, applying for a state license, or seeking election to public office.

But even in those instances, an expungement is beneficial because it demonstrates that you were not sent to prison, that you took affirmative steps to satisfy all of your obligations to the Court, and that you have rehabilitated to the satisfaction of a Judge.

The prudent course of action would be to file a petition for expungement, set it for a hearing, and then, at the hearing, ask the Court to issue a minute order stating that the misdemeanor arrest ultimately resulted in a conviction for an infraction.

You would then need to submit that minute order, as well as the oder granting the expungement, to the Department of Justice and request that they update your criminal record accordingly.

It may be beneficial to retain a criminal defense attorney to assist you in this endeavor.

Also, the police department probably denied the petition to seal the arrest record because the deadline for doing so has passed. You have just two years from the date of arrest to file your petition to seek a finding of factual innocence. Penal Code 851.8(l).

Read other criminal defense attorney answers at Avvo: I Was Arrested for a Misdemeanor, But It Was Reduced to an Infraction — Am I Eligible to Seal the Record of My Arrest?