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What Is Supposed to Happen If an Order to Seal Is Granted?
Under the CARE Act signed into law by Governor Brown, under Penal Code § 851.87 adults can request to their arrest and court files sealed under Penal Code §§ 851.91 and 851.92 if the adult meets certain criteria.
In other words, this new law does not allow just anyone asking to receive the relief, as many who have called our office seem to believe.
Brief Synopsis: After a judge signs an order to seal and destroy a police report and/or court file under Penal Code § 851.91 and § 851.92, the court clerk sends a copy of the order to the police agency that made the arrest or detention within 30 days to destroy the police report. In the same 30 days, the court clerk sends the signed order to the DOJ to update the DOJ system records, from which Livescan reports are based.
One must have been arrested, but the arrest did not lead to a conviction. More specifically, section 851.91 requires that the statute of limitations has run on every offense upon which the case was based and the prosecuting attorney of the city or county that would have had jurisdiction over the offense or offenses upon which the arrest was based has not filed an accusatory pleading based on the arrest.
Alternatively, one can seek relief under 851.91 if the prosecuting attorney filed an accusatory pleading based on the arrest, but, with respect to all charges, one or more of the following occurred: (i) no conviction occurred, the charge has been dismissed and the charge may not be refiled; (ii) no conviction occurred and the arrestee has been acquitted of the charge; or (iii) a conviction occurred, but has been vacated or reversed on appeal, all appellate remedies have been exhausted, and the charge may not be refiled.
If the individual seeking an order to seal the arrest and court file meets these threshold requirements, he still must show to the judge four things, which start with showing he or she cannot still be charged with any of the offenses upon which the arrest was based. This would most commonly require that the statute of limitations for the offenses has passed or expired.
Compton CourthouseSecond, murder and certain sex crimes with no statute of limitation are excluded. So, if any of the arrest charges, as specified by the law enforcement agency that conducted the arrest, or any of the charges in the accusatory pleading based on the arrest, if filed, is a charge of murder or any other offense for which there is no statute of limitations, except when the person has been acquitted or found factually innocent of the charge.
Third, the person seeking the sealing must not have intentionally evaded law enforcement efforts to prosecute the arrest by absconding from the jurisdiction in which the arrest took place. Similarly, and lastly, the person is ineligible for relief if he or she intentionally evaded law enforcement efforts to prosecute the arrest by engaging in identity fraud and was subsequently charged with a crime for the act of identity fraud.
Also, within 30 days of issuing the order, the court shall furnish a disposition report to the Department of Justice indicating that relief has been ordered and providing the section of the Penal Code under which that relief was granted and the date that relief was granted. Lastly, it should be noted that a sealing order made pursuant to this subdivision shall not be forwarded to the Department of Justice to be included or notated in the department’s manual or electronic fingerprint image or criminal history record system.
The arrest records, police investigative reports and court records that are sealed under this section shall not be disclosed to any person or entity except the person whose arrest was sealed or a criminal justice agency. Nothing shall prohibit disclosure of information between criminal history providers.
