New California Expungement and Record Sealing Law to Help ThousandsJanuary 4, 2019
With the recent passage of Assembly Bill No. 1115, California has expanded eligibility to people looking to seal an arrest record or expunge a conviction. Over the last few years, many states have been expanding their expungement and record sealing laws, but they typically don’t make changes as big as the law which took effect January 1, 2018.
I. Changes to the Sealing of Arrest Records
In the past, California has been notoriously strict in its requirements to seal an arrest record. In the past, “actual innocence” was the standard you typically needed to satisfy to seal an arrest record. This is typically an extraordinarily difficult standard to satisfy. Since many of these arrests were situations where there was no actual conviction, it never made a lot of sense to me why California had such a strict requirement. Even states like Texas with more restrictive laws around criminal records allow the expungement or sealing of arrests that did not result in a conviction, so this always struck me as odd for a state like California that is typically very liberal in the expungement of convictions.
The main take away from this new law is that you can seal most arrest records that did not result in a conviction and are not going to result in coming charges.
This new law can initially cause some confusion with the courts, and interesting situations the California legislature did not take into consideration. In most cases, sealing arrest records is mandatory and a matter of right. However, here are the basics:
New Rules in Sealing Arrest Records
- Acquittals and Not Guilty Verdicts: Related arrest records are almost always immediately eligible to seal.
- Dismissed Charges: If the case was dismissed in a way where charges cannot be refiled, the arrest record can be sealed. This would very often be where the statute of limitations for the underlying charges have expired.
- No Charges Filed: To seal an arrest record where charges were not filed, the statute of limitations for the charge you were arrested for must typically have expired.
- Limitations on Sealing: There are some limitations to the new law. For arrests relating to domestic violence, child abuse, and elder abuse, sealing is not mandatory if there is a pattern of arrests or convictions. A “Pattern” under the new law would be two or more convictions, or five arrests occurring on separate occasions during the previous three years. In these situations, the sealing of arrests would appear to be discretionary and up to the judge.
II. Changes to the Expungement of Convictions
Even prior to the changes made by this new law, California law was already very liberal when it comes to the expungement of convictions. There are several rules and limitations, but the primary rule which disqualified people from expunging convictions was the limitation on expunging convictions that resulted in prison time. Prior to this new law, if you served time in prison, you wouldn’t qualify for expungement. However, California’s new law just made significant modifications to this requirement.
In 2011, California made significant changes to its felony sentencing rules, commonly known as “realignment” under California Penal Code 1170(h). The main change in “realignment” was that many non-violent, non-serious, and non-sexual felony convictions, could now result in sentences being served in county jail instead of state prison. These changes took effect July 1, 2011, and have generally had a positive effect on recidivism and overcrowding in prisons.
New Rules in Expunging Felony Convictions with Prison Sentences
AB 1115 takes these sentencing changes into account in determining eligibility for the expungement of many felony convictions. Under California’s new felony expungement requirements, people can often qualify to expunge felony convictions, even if a prison sentence was served. Not all felony convictions can be expunged under this new law, but many are now eligible. The following is a basic summary of the new requirements in expunging a felony conviction that resulted in a prison sentence:
- When Convicted: The conviction must have been made prior to July 1, 2011, when “realignment” sentencing was put into place.
- Must Be Realignment Eligible Offense: The felony conviction must otherwise qualify for “realignment” sentencing, which requires that it be one of about 500 felony offenses covered by PC 1170(h). There are many of these offenses which qualify under PC 1170(h), including those on this list.
- Cannot Be Registered Sex Offender: Realignment requires that you have not been convicted of a sex crime requiring registration, and as a result, eligibility for this new law would be the same.
- Cannot Have a “Violent” Conviction: Realignment requires that you have not been convicted of a “violent” crime described by PC 667.5(c), and as a result, eligibility for this new law would be the same.
- Cannot Have a “Serious” Felony Conviction: Similar to the requirement above with respect to “violent” crimes, “realignment” requires that you have not been convicted of a “violent” crime described by PC 1192.7(c), and as a result, eligibility for this new law would be the same.
- Cannot Be a Conviction For an “Excluded” Offense: The final list of crimes which are not eligible for expungement under California’s new law include a shorter list of “excluded” offenses that can be found on this list.
- Otherwise Qualify For Expungement: California’s new law only modifies the requirement that you not be sentenced to California State Prison to qualify for expungement, the rest of the general qualifications for expungement still apply under the new law.
The main goal of “realignment” reform in 2011 was to make reforms for sentencing of offenders that were non-violent, non-serious, and non-sexual. California’s new expungement law is following suit, and seeks to provide expungement relief for those that may not have been sentenced to California State Prison, had the conviction occurred prior to the “realignment” reform went into place July 1, 2011.
Over the next several months, there are undoubtedly going to many questions, uncertainties, and confusions in interpreting California’s new felony expungement and arrest record sealing laws. As a result, it is likely a good idea to consult with a California attorney experienced in these matters to see if you qualify under California’s new laws.
By: Sam Eastman
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