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If you or a loved one needs help sealing a record after an arrest but not a conviction give us a call.  As a former probation officer district attorney and attorney with more than 15 years of criminal defense experience I can help you with this process.  

If you have been convicted or have pled guilty to a crime the sealing of records is not the process for you.  That would be the expungement process which is a completely different process in the law. 

There have been many changes to the law in the last several years in the state of California regarding arrest that did not lead to a conviction and the effect of that.  The sealing process I will explain below deals with the arrest but not conviction and public rather than Law Enforcement uses.  It should be stated that law enforcement will always be able to see your arrest even if the law enforcmement agency did not file charges or charges were dismissed. 

Below I will go through the old law and the changes and the processs to get your record sealed. 

OLD LAW

The way the law stood in the past was that if you were arrested and not convicted or no charges were filed you would have to file a 851.8 motion get a court date and convince a Judge you were "factually innocent" of the charges.  Then the record could be sealed the burden was on you and you would have to show the statute has run out that you were factually innocent and then the public record of the case would be sealed and that means that even if you were completely innnocent of the crime there would permanently be a record of this crime that people could see including potential employers, apartment rental agencies etc.  

CHANGES TO THE LAW 851.87

Penal Code section 851.87  gives people the right to have an arrest record sealed as long as there arrest did not result in conviction.  This means an arrest did not end in a conviction under the following circumstances. 

No charges were filed

Charges were filed but later dismissed

Charges were filed but the defendant weas acquitted (found not guilty) at trial

The defendant was convicted but the conviction was later vacated or reversed on appeal

Charges were dismissed after the defendant succesffully completed a pretrial diversion program such as drug diversion. 

Under the old law the burden was on the person bringing the motion to prove that they were "factually innocent"  under the new law the burden is on the prosecution to show the person should not be given the relief. 

REASON FOR NOT GRANTING RELIEF

There are exceptions to this new law such as a pattern of domestic violence or if a person is a sex offender, so forth the government has the burden to show the person is not eligible.  Also if you still may be charged with the offense then you may not seek relief under this new law. 

EFFECT OF SEALING

The effect of sealing your record means that the public will no longer be able to view the arrest.  Law Enforcement will still be able to view the arrest and it can be used for certain sentencing matters in later criminal proceedings.  

There is separate legislation that has passed recently dealing with how private individuals such as employers and apartment complexes can use an arrest but not a conviction if you have questions about that you can view the blog that deals with that type of situation.  If you have questions please give us a call and we can get you through this.  559-441-1418.

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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