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Criminal Defense Attorneys

What is the Difference Between Expungement and Sealing?

Our office receives two or three phone calls every single week from people who tell us they hope to “clean their record.”  We usually ask the caller what this means.  The usual answer is “well, I thought if I called an attorney, you could erase all my convictions – make my record look clean.  Like expunge it.”

We then try to explain that an order of “expungement” in California does not erase, delete or otherwise remove a record of a case having been filed against someone, like a sponge soaking up a spilled liquid.  Instead, what expungement does is return the last plea in the case to not guilty and the judge orders the case dismissed.  Defendant can then enjoy the legal right to say he or she was not convicted in the case, subject to certain exceptions.

This explanation usually upsets the caller because they worked up the energy to finally move forward on this issue and we told the caller what they wanted was actually not available under California law.

We then usually explain that what they want is not expungement, but an order sealing and destroying the arrest report and the court record.  The caller often sounds relieved to hear this is available, but not for all cases and definitely not for cases that resulted in a conviction (like expungement applies to if defendant was sentenced to probation, with certain exceptions).

We then explain the C.A.R.E. (Consumer Arrest Record Equity) Act (SB 393, or Senate Bill 393) that then-Governor Jerry Brown signed to allow an individual to request that a judge order a police report sealed (which means destroyed) and if applicable, the court file sealed (which means destroyed) and that the DOJ remove the entry in its database for the particular arrest and court proceeding at issue.  This law became effective January 1, 2018.

It applies to folks who were arrested, but who never faced a criminal case thereafter and the statute of limitations has expired (there is no statute of limitations for certain crimes).  The new law does not apply to reward those who evaded law enforcement or engaged in some form of identity theft to evade criminal liability.  

The new law also applies to folks who were arrested and a criminal case was filed against him or her, but that case was dismissed in the interests of justice (Penal Code § 1385) or pursuant a statutorily provided diversion program, i.e. PC 1000 or bad-check diversion or parenting diversion, for example.  

The law is not available to people who have been involved in a “pattern” of domestic violence, child abuse or elder abuse, with “pattern” being defined within 851.91(c)(2)(a)(ii) as having two or more convictions or five or more arrests for separate incidents within three years of the arrest at issue in the petition.

Despite such seemingly rigid eligibility criteria, a judge may also issue such an order “in the interest of justice” (Penal Code § 851.91(c)) based on hardship caused to the petitioner based on the arrest, based on petitioner’s good character, “declarations of evidence regarding the arrest,” and petitioner’s record of convictions.  Penal Code § 851.91(c)(2)(B)(i – iv).

It the judge signs the order to seal and destroy, “within 30 days of issuing the order, the court shall forward a copy of the order to the law enforcement agency that made the arrest, to any other law enforcement agency that participated in the arrest and the law enforcement agency that administers the master local summary criminal history information that contains the arrest record for the sealed arrest.”  Penal Code § 851.92.  

“Within 30 days of issuing the order, the court shall also furnish a disposition report to the California 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.”  Penal Code § 851.92.

If the caller has not hung up on us by this point, we could summarize by telling the client that expungement applies to those who were convicted of a crime, but the record of the case having been filed remains.  In contrast, sealing and destroying removes the record of not only the case having been filed, but the record of the arrest.  Sealing and destroying is better for “cleaning a record,” but it is not available – except in the interests of justice – to someone who was convicted of a crime.

For more information about sealing and destroying a police report and court file, as well as expungement, please click on the following articles:
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