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Remember when the school principal warned a misbehaving student that a particular transgression would remain in his or her “permanent record”? Records of criminal convictions and guilty pleas are sort of the adult equivalent. Unlike your school disciplinary history, however, criminal records are generally considered public in California. This means that credit reporting agencies, potential employers, and landlords can find out that you were once convicted or plead guilty to a crime in the state.

But what if:

– You were arrested but never charged?

– Charges were filed, but they were dismissed (whether voluntarily or by the court) before you went to trial?

– Your case went to trial and you were acquitted?

Until recently, even in these cases the record of your arrest nearly always remained in the public records. What’s more, studies indicate that only about half of all organizations using criminal arrest information give the subject an opportunity to explain the circumstances.

Historically, an individual could theoretically obtain a court order sealing his or her arrest record; that is, making it exempt from public disclosure. However, the California Penal Code has required a defendant to file a petition for factual innocence (PFI). Succeeding on a PFI required a showing that no reasonable basis existed for the arrest or the charges and a subjective decision by a judge. Evan acquittal by a jury wasn’t sufficient. In practice, getting an arrest record sealed has historically been extremely difficult to do.

The C.A.R.E Act

On January 1, the Consumer Arrest Record Equity (“C.A.R.E.”) Act took effect. Under the Act, courts no longer have discretion in deciding whether to seal the arrest records of certain persons. To be covered by the Act, an individual must show that:

– The state did not file charges and can no longer do so because the applicable statute of   limitations has expired; or

– He or she was arrested and charged, but the charges were dismissed, there was an acquittal by a jury, or the conviction was reversed on appeal.

In addition to these requirements, if an individual’s criminal history demonstrates a “pattern” (generally two or more convictions or guilty pleas) of crimes related to domestic violence, child abuse, or elder abuse, he or she will also need to persuade the court that sealing the person’s arrest records will be “in the interests of justice.”

There are a few other important exceptions. The court is not required to seal a person’s arrest record if he or she:

– Was arrested for homicide or another crime for which there is no statute of limitations

– Tried to physically evade arrest or prosecution by, for example, fleeing the state

  • Tried to evade arrest or prosecution by committing (and being charged with) identity theft.

Once a record is sealed, for most purposes it is considered expunged; that is, it is treated as though the arrest never occurred. There are some exceptions related to persons charged again with the same offense (such as DUI), as well as those seeking appointment to a peace officer or certain other public positions.

Statutes of Limitations

As noted above, the rights conferred by the CARE Act apply only if the state can no longer file charges because the statute of limitations has expired. Whether or not the District Attorney intends to file charges is irrelevant – if he could still do so, there is no right to obtain a sealing order. Statutes of limitations are typically one, three or six years long. In general, the more serious the crime, the longer the California criminal statute of limitations.

Author Photo

Kerry L. Armstrong

Attorney Kerry Armstrong opened up his law firm, the Law Offices of Kerry L. Armstrong, APLC, in June 2007. Prior to that, he was employed as the senior associate attorney for a large criminal defense firm in San Diego for nine years, eventually being placed in charge of that firm’s branch office in downtown San Diego. At one point, he was managing six attorneys at that firm, as well as several support staff and law clerks. In 2014, 2015, 2016, 2017, 2018, and 2019 Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys. In 2017, he was also selected for the Super Lawyers Top 50 in San Diego list. In 2014, he was selected as a Top Attorney by Los Angeles Magazine. Additionally, Mr. Armstrong was also named as a Top Attorney by the San Diego Business Journal in 2014.

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