Facing an arrest and criminal charges is a daunting experience. Most people fear the potential criminal penalties, including incarceration and fines. However, the consequences of a conviction will continue to affect your life long after you have been released from the legal penalties.
An arrest history may harm your reputation, professional license, and employment opportunities. Using several legal channels, defendants in California can evade the consequences of their arrest, charges, and conviction. Expungement and sealing of records are standard methods to keep your records private and unusable against you.
If you want to seal or expunge your record, you must file a petition in court and pursue the process with the assistance of an experienced attorney. Although some confuse the phrases expungement and sealing, they refer to distinct processes with separate requirements and advantages.
The following are some of the differences between record sealing and expungement:
Differences in Definitions of Record Expungement and Sealing
Under California law, an expungement is a legal proceeding where you petition the court to allow you to withdraw your guilty or no-contest plea and exchange it for a not-guilty plea. You can file for an expungement if you entered a plea deal or were found guilty by a jury.
Expungement of your criminal conviction will involve filing a petition under California Penal Code 1203.4. However, you must understand that when you expunge a conviction, it will not be erased from your criminal record. This means that individuals who perform a background check on you can still find it.
However, an expunged conviction carries less weight and cannot be legally against you by potential employers, your professional licensing board, or landlords.
On the other hand, sealing a criminal record involves destroying an arrest record and making it nonexistent. Unlike an expungement, a sealed record will not be accessible to the public, and you can live as if the arrest did not occur. You can avoid all the disabilities from your arrest when the record is sealed. When your record is sealed, the following records of the rest are destroyed:
- Police reports
- Booking photos
- Rap Sheet entries
- Fingerprints
However, there are circumstances under which the law enforcement department can access and use the records. For example, if you are arrested and charged with a subsequent but similar offense, the prosecution can use the sealed records to show a pattern of violations. Sealing your arrest record requires you to file a petition under PC 851.91.
The Difference in Eligibility for Penal Code 1203.4 and Penal Code 851.91
Record, expungement, and sealing are legal proceedings that can help you avoid the disabilities of your arrest or conviction in California. However, the eligibility criteria for each differ.
Record Sealing
You will be eligible to seal your record under PC 851,91 if you meet the following requirements:
- No criminal charges were filed. You can seal your arrest records if you were arrested for allegedly committing a crime and the prosecution did not file charges against you. This could occur if you were released with a citation. Other reasons why the prosecution may fail to file charges against you are when there is insufficient evidence to support the allegations.
- Criminal charges were dismissed. If you were arrested, you could be eligible to seal your record in California, but the court dismissed the charges. A court can dismiss charges brought against you where there is no basis for an allegation or new evidence arises, which eliminates your liability for the offense.
- You were not found guilty of the offense. When you are charged with a criminal offense, and your case goes to a jury trial, the jury can find you guilty or not guilty based on the evidence presented against you. If the jury returns with a not guilty verdict, you are acquitted of the charges and can petition the court to seal the record.
- Your conviction was vacated. The court's decision in your case is not always final. If you are unsatisfied with the outcome of your criminal case, you can file an appeal. If the appeals court overturns your conviction, you can seal the record and avoid the consequences of the conviction.
- You completed a pre-trial diversion program. Sometimes, the court may require you to complete a diversion program, which results in dismissing your case without going to trial. You can seal your arrest record after completing the program successfully.
Expungement
You must meet the following eligibility criteria to expunge your record under California PC 1203.4:
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You have Completed your Probation
Most defendants who seek to expunge their convocation will have served their jail sentence and probation. You can only expunge your criminal conviction after completing your probation. A successful probation completion means you have served your probation term and followed all the probation conditions.
You can petition the court for an early probation termination if you still serve probation and have not violated your conditions. This allows you to expunge the record faster.
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You are not Facing Charges for Another Offense
When filing a petition under PC 1203.4, you should not face charges for another offense. Additionally, you should not be serving probation or a sentence for a subsequent offense, even when it is unrelated to the crime you are expunging.
Although expungement or sealing a record can go a long way in ensuring that you avoid the collateral consequences of an arrest, not all defendants can explore the legal proceedings. There are differences in why your petition under PC 1203.4 or 851.91 could be denied.
The court can deny your petition to seal an arrest record if:
- The prosecutor can still file charges against you for conduct related to the arrest.
- You evaded prosecution by impersonating another person
- Your criminal record shows a pattern of domestic abuse. This could include crimes like child abuse, spousal battery, and corporal injury to a spouse.
On the other hand, the court can dismiss your expungement petition under the following circumstances:
- You are still on probation or serving a jail sentence for another offense.
- You have pending charges for another offense.
- You were sentenced to state prison for your offense.
- You were convicted of a violent sex offense.
Difference in the Process of Sealing and Expunging Your Conviction
You petition the court to expunge your conviction when you have already suffered a conviction and served a sentence. For this reason, the procedure for filing a petition under PC 1203.4 is more complex than sealing an arrest record. You can seal your records in California through the following process:
- Review the eligibility. Before filing your petition, you must meet the eligibility criteria under PC 851.87.
- File a petition. You should file your petition to seal an arrest record in the court where the prosecution filed your charges. The partition will be served to the prosecution and the law enforcement department that made your arrest.
- The hearing. The court will schedule a hearing that you can attend or be represented by a criminal defense attorney. At your hearing, the court will examine the arrest records and determine whether they are in the interests of justice before granting or dismissing the petition.
The process of expunging your conviction takes the following steps:
- Fill out the relevant paperwork. If you meet the requirements of an expungement, your attorney will guide you through filling out the necessary paperwork.
- File a petition. After completing the necessary paperwork, you can file a petition for expungement in the court where the conviction occurred.
- Meet with the prosecution. You must notify the prosecution about your petition up to fifteen days before the hearing. Use this opportunity to convince the prosecutor to support your motion.
- Attend the hearing. Although attending an expungement hearing is not mandatory, it may be a sign of commitment, which increases the chances of having your petition granted. At the hearing, you must prove to the court that you have been rehabilitated.
- Refile the petition. If the court grants your expungement petition, you can make the necessary changes and re-file the petition after six months.
Varying Time Limits for Filing a Record Expungement or Sealing Petition
Another difference between sealing your record and an expungement is the time limits within which you can file the petition and receive a discharge.
Expungement
If you are charged and convicted in California, you must complete your sentence before filing a petition to expunge the record. The time you must wait to file your petition under PC 1203.4 varies depending on the nature of the conviction.
If you were convicted of a misdemeanor, you must wait up to one year after your case ends. However, this applies if you are not sentenced to probation. If you are sent to probation for your misdemeanor, you can file the petition immediately after completing the probation sentence. On the other hand, if you face a felony conviction, you must wait up to four years if you were not sentenced to felony probation. However, if you have served your felony probation or were granted an early probation termination, you can file for an expungement immediately.
Record Sealing
Prior laws under PC 851.8 allowed defendants up to two years to file for a record sealing petition. With new laws under PC 851.87, there are no limits to when you can seal the record. However, attorneys recommend that you, outside the record, petition as soon as the statute of limitations for the offense elapses. This means the prosecutor can no longer file charges for the offense against you.
Difference in the Benefits Offered by Record Sealing and Expungement
Expunging and sealing your records have similar goals of helping you avoid the disabilities of your arrest or conviction. However, sealing a record offers more benefits than an expungement. When your record is sealed, your arrest or prosecution information is destroyed. This means that the arrest will not appear on background checks and thus cannot be used against you.
Additionally, you will not be obligated to disclose the convictions. For this reason, you can have a clean history, and people cannot form opinions against you based on the records. This improves your chances of employment and cannot result in losing your professional license.
On the other hand, an expunged conviction is not erased from your criminal history. Although employers are prohibited from discriminating against you based on an expunged conviction, people can still form negative opinions against you when they discover the conviction.
You expunge your record after you have suffered a conviction and some collateral consequences have caught up with you. An expungement cannot do the following for you:
- Overturn the suspension or revocation of your driver's license. A conviction for most driving offenses will suspend or revoke your driver's license. Expunging your conviction cannot reinstate the license. Instead, you must complete the suspension period and follow the proper reinstatement procedures.
- Restore your gun rights. After a conviction for some violent offenses, you will be denied the right to possess, own, or purchase a firearm. Even after expunging your record, you will not restore the rights until the set period has elapsed.
- End your duty to register as a sex offender. If you were convicted for an offense that mandated your registration as a sex offender, a successful petition under PC 1203.4 would not eliminate the requirement.
Find a Skilled Criminal Defense Attorney Near Me
Expungement and sealing of records differ significantly in their definition, purpose, and eligibility. You can expunge a conviction if your case goes to trial and you are found guilty of the offense or enter a plea deal.
When you expunge a conviction, the record may still be accessible to the public but cannot be used against you. However, you may need to seal the records if you were arrested and acquitted or your charges were dismissed. A sealed record is not accessible to the public and cannot be used to discriminate against you.
Filing a petition for sealing or expunging your records will require you to file a petition in court and attend a hearing where you can plead your case. While pursuing a petition under PC 1203, 4, or PC 851.91 in Long Beach, CA, you could benefit from our expert legal insight at Long Beach Criminal Attorney. Call us at 562-308-7807 for much-needed guidance.