In the state of California, there is a new law for people who have been arrested, but not convicted of a crime. The law allows for their arrest records to be sealed. Record sealing protects a person who has to undergo criminal background checks for things such as new employment opportunities or trying to rent an apartment. If you have an arrest on your criminal records but have not been convicted of the crime, contact Jonathan Franklin DUI Attorney and ask about sealing your arrest record.
What is Record Sealing?
Governor Jerry Brown signed into law, California Senate Bill 393 in October of 2017 which allows residents of California to have their arrest records sealed if they were never convicted of the crime relating to the arrest. It is your right, under Penal Code 851.87 to have your arrest record sealed if:
Charges filed against you were later dismissed
You were found ‘not guilty’ in a trial by jury
After you were arrested the charges were never filed
Your conviction was vacated or overturned on appeal
You completed your pre-sentencing program or pretrial diversion
Your criminal records are part of the public records which means anyone can access them. Apartment landlords or owners, prospective employers you apply for work too, insurance companies, any one of these can run a background check on you to look for criminal history. For some of these, just the fact you were arrested can impact your reputation whether or not the arrest was justified or not.
Penal code 851.87 states your arrest record can now be sealed preventing them from seeing this information when they conduct a background check on your name. Record sealing will make the arrest, investigative reports taken by officers, fingerprints, photos and any court records inaccessible to the public. The exception to this law is that the information can still be used by criminal justice agencies and the state of California.
Record sealing or expungement is also open to anyone who’s been convicted of a California felony or misdemeanor if you have successfully finished probation for your offense, you did not have to serve time in prison, or if you served time in prison but would have served your time in county jail under the ‘realignment’ from Proposition 47.
A California Misdemeanor is a crime when convicted only enforces up to six months in jail with a possible fine up to $1,000.
A California Felony carries a low term, middle term or high term prison sentence. The difference between each term is how long of a prison sentence the judge can impose with your sentencing.
Realignment under Proposition 47 was passed by California voters in 2011 and was created to reduce over-crowding of State Prisons. It was designed to send those convicted of less serious crimes to do their time in county jails, rather than in prison. It does not apply to more serious crimes or sex crimes.
This record sealing or California ‘ban the box’ law does not allow employers to ask about convictions or arrests on applications for employment. These two issues can no longer be part of a conditional offer of employment.
California ‘Ban the Box’ took effect in January of 2018 and prohibits employers from asking about an applicant’s criminal history. This request cannot be made prior to a conditional offer of employment. Once an offer has been made, the employer cannot deny the position because of a conviction without assessing the individual. California law does not allow an employer to ask or consider criminal convictions that have undergone record sealing. AB 1008 takes this law one step further by banning employers from taking into account any criminal conviction, one that has undergone record sealing or not, before making a conditional job offer. The law applies to both misdemeanor and felonies charged in the State of California.
Conditional offers of employment are jobs offered if a potential employee meets specific conditions or requirements. These requirements can be aptitude tests, physical exams, or background checks. Conditional job offers cannot be based on illegal discriminatory factors. These offers also cannot discriminate against an employee’s protected status.
When you are discussing employment with a potential employer, you do not have to discuss or disclose record sealing of any crimes. If your employer should learn the information through another source, they are not allowed to use the information in regards to promoting you or other employment-related decisions.
The record sealing of criminal activity does not release you of the obligation to disclose the information from state licenses or teaching related jobs. A state licensing board is allowed to use a conviction against you when they are considering to issue a new license or grant you a renewal of a previous one, though it may look more favorably if you have undergone record sealing of the conviction.
Does Record Sealing Remove a DUI
An expungement or record sealing of your DUI conviction is an after-the-fact dismissal of your case. The record sealing of a DUI in effect erases the conviction from your files for most purposes. Under California Penal Code 1203.4, sealing records of a DUI conviction can get you out from under adverse employment or renting consequences.
Immediately after you complete probation for a DUI, you are allowed to petition the court for a record sealing of your conviction record. With the help of your DUI attorney, you can prepare a petition for the judge, who determines if you are eligible for the record sealing.
If the judge grants your petition, you withdraw your plea of guilty and re-enter a plea of not guilty. If you had a jury trial and were found guilty by the jury, the judge will set aside the verdict.
Probation for a DUI in California generally includes paying a fine and completing California DUI school. You are also required to agree to not drive with any measurable alcohol concentration for three years. If these terms are not followed as per probation requirements, the judge can revoke your probation, and you will have to complete a jail sentence.
California DUI school is designed to provide alcohol prevention and educate people on the effects of alcohol. It is a court-ordered school and part of sentencing under Vehicle Codes 23152(a), 23152(b), 23140, and 23103.5.
If the judge sets aside your verdict, they dismiss your case. One of your most significant advantages to having your DUI conviction record sealed is to make finding employment easier. Once the record sealing has been completed on either a drug or drunk driving conviction, a prospective employer cannot use it as a negative employment consequence.
Record sealing of your DUI conviction does not overturn a decision to revoke or suspend your driving license. This fact is not usually an issue as you have to complete probation before filing your petition of record sealing your conviction. You will more than likely have your driving privileges returned before your probation period is completed.
Depending on the court’s decision, you can apply for record sealing of your DUI conviction early if your probation has been terminated. Whether it has expired by the length of time you were given, or it was terminated early by the courts, you can apply for record sealing of the conviction once probation is complete.
California law does offer a process that allows you to terminate your probation early for DUI convictions. Misdemeanor probation for a DUI is normally three years but can be set to five and a felony conviction is just as long. This is a long time to wait for record sealing of your sentence. Check with Jonathan Franklin, DUI attorney on how to terminate your probation so record sealing can be conducted sooner as well.
Once the courts receive your petition, it is up to the court whether or not to grant early termination of your probation. The decision will be based on whether or not you have successfully finished the terms of your probation such as attended the DUI classes you were required to be at and if you have paid all fines including restitution to anyone hurt due to your actions.
Certain conditions will justify why you are entitled to early termination including you have to secure gainful and secure employment, you are expecting an advance at work, you need to travel to visit family or for work. Judges are typically reluctant to grant early termination of probation for DUIs. One condition of the probation period is that you cannot drive with any amount of alcohol in your system while completing your time. Judges like to see that defendants remain bound to these terms for as long as possible.
Second DUI Offense
A DUI is a ‘priorable’ offense in the State of California, which means the penalties increase with each conviction within a ten-year time frame.
Penalties for DUI are set at:
First Offense- Up to six months in county jail with fines up to $1,000. The six-month sentence is not usually mandatory with a first-time offense, but the DMV would suspend your license for four months. After the first thirty days, you could request a restricted license allowing you to drive to and from work. This offense includes three to nine months of DUI school.
Second Offense- Your second conviction of a DUI includes ninety-six hours to one year in jail with a fine of up to $1,000. Your license would be suspended for two years, and you would have to wait one year before applying for a restricted license to drive to and from work. This conviction also means you are required to attend DUI school from eighteen to thirty months.
Third Offense- Your third conviction of a DUI includes 120 days to 1 year in county jail with up to $1,000 in fines. Your license is suspended for three years on this conviction, and you are required to attend DUI school for 30 months.
DUI with Jury- A DUI with jury conviction means you will be sentenced five days to up to one year as a jail sentence, with a fine up to $5,000 along with restitution to anyone injured as a result of your actions. Your license is suspended for one year with this conviction, and you either have to attend DUI school for 3, 18, or 30 months.
First Offense with DUI Jury as a felony carries a sentence of 16 months or up to 16 years in prison with a fine up to $5,000 along with restitution to anyone injured due to your actions. This conviction also includes 18 to 30 months in DUI school.
Felony DUI carries a sentence from 16 months to 3 years in prison and up to $1,000 in fines. Driver licenses are suspended for five years, and DUI school is required from 18 to 30 months.
Record sealing of a DUI conviction would continue to make any convictions that follow still priorable. This rule means even though you had a first-time conviction sealed, it will still count against you should you be convicted of a second DUI offense.
How a Record is Sealed
The new law requires that you prove you are entitled to have your arrest record sealed. This process is done as a matter of right or sealing of the record would serve the interests of justice. Having an experienced attorney working with you through this process is highly recommended as it is a complicated legal process.
Sealing is not an automatic process. It is your responsibility to prove you are ‘factually innocent.’ This area is where an attorney will be able to help you through some issues that can arise. Jonathan Franklin, DUI attorney, has the expertise in these areas to help you find your proof.
You will be filing a Petition for Factual Innocence or PFI to request your records be sealed. If granted, then all records of your arrest, pictures, fingerprints, and court records will be sealed from public access. You must file the PFI within two years of your arrest or from when charges were filed, whichever is later. The process of this request is different depending on whether charges were filed following your arrest.
If after your arrest there were charges filed, you must submit the PFI with the arresting law enforcement agency, as well as provide the county District Attorney with a copy. If the law enforcement agency does not act on your petition, then you have to wait 60 days after the statute of limitations to file with the court.
If you were charged after your arrest, you have to wait until the charges are resolved. When your charges are dismissed, or you receive acquittal, you can file a PFI immediately.
When the court reviews your PFI, they will look at the police report, affidavits, declarations or other relevant evidence. If the prosecutor assigned to your case opposes your petition, the court will then review their reasons behind the opposition. You will then be required to back your reasons with evidence from witnesses who also believe you are innocent of any crime. Any additional documents you have will help to prove your innocence. These documents could include letters of good character, diplomas, letters of recommendation and other papers proving your good character.
You can also clean up your California criminal record, also known as your ‘rap sheet.’ To begin this process, you will want to get a copy of criminal records, as well as your fingerprint card. Talk to Jonathan Franklin, DUI attorney about checking your documents to ensure nothing has changed on records.
When you have your records, fill out a petition form and mail it to the Superior Court of the county where your conviction is filed. You are only able to seal the record of one conviction at a time. If you have multiple convictions you are trying to seal, you will need to fill out separate petitions for each, but can file them together. You cannot attempt to seal a conviction if you are still on probation for it.
You will receive a court hearing where you should appear with your attorney. If the court grants your petition, it will dismiss the convictions, and your records will be updated to show ‘dismissal.’
Is There an Attorney Near Me Who Can Help with Record Sealing?
Having a DUI conviction on your criminal records significantly impacts your future. You need the services of Jonathan Franklin, DUI Criminal Defense Attorney to help you with record sealing. With record sealing, you no longer have to worry about background checks. If you have been arrested and want to seal the record call 323-464-6700 and schedule an appointment to find out how we can help you protect your rights and future against criminal charges.