New Law Regarding Sealing Arrest Records

The end of 2017 was a tremendous time for criminal justice reform in California. Governor Brown signed into law a number of laws that will have real impact in swinging the pendulum back towards the idea of being smart on crime rather than tough on crime.

Somewhat lost in this flurry of legislation was an incredibly powerful change to the way in which people can seal old arrest records. Previously, to seal an arrest required that a person who had been arrested but not convicted for a crime had the burden of proving they were factually innocent of the charge. This was an incredibly high burden as it required one to prove a negative. It generally meant impossibility unless another person had been charged and convicted of the crime or there was some kind of airtight forensic proof of innocence.

Senate Bill 393, which was codified as Penal Code section 851.91, remembers that we a nation that presumes innocence until guilt is proven. People who have never been convicted of a crime never lose this presumption and the law now recognizes this by stating that people never convicted of a crime, with a few small exceptions, are entitled as a matter of right to have the records of their arrest and prosecution sealed.

There are both obvious and less obvious applications of this change in the law. On the obvious side, if you were arrested for a crime that the prosecutor never filed you are most certainly entitled to this relief. On the less obvious side, even if you participated in a deferral program where you completed some obligations prior to dismissal, you are still entitled to relief! Additionally, if you took your case to trial and a jury found a reasonable doubt and acquitted you, where previously you would have had to convince a judge you were factually innocent to obtain relief, you are now statutorily entitled to it!

As I mention above, there are a few exceptions that are beyond the scope of this quick blog. The bottom line is: if you have ever been arrested for a crime that you were not later convicted of, there is a very good chance you are entitled to have the records sealed. I would be delighted to walk you through the process if you believe you qualify. Do not hesitate to contact my office to discuss, I look forward to helping you.