If you have a conviction in California, you have two options to clear your criminal record: expungement and sealing records. Clearing your criminal record helps you find a job, housing, or peace of mind. Many people use expungement and sealing records interchangeably, but they have different meanings and consequences in your life.

Read along to learn the difference between sealing and expunging a record. You should also retain an experienced defense lawyer to advise you on the most suitable option.

Record Sealing Vs. Expungement in California

Record sealing and expungement are the two ways to clear your criminal record in California. Each way has specific legal implications, requirements, and benefits.

     1. Record Sealing Overview

In California, those arrested but not convicted of an offense can have their records sealed. Under Penal Code 851.91, your record can be sealed if the court dismisses your charges or acquits you. After sealing, the record is not publicly available. After the court seizes your arrest record, you are legally allowed to respond “no” when asked if you have faced arrest.

A public arrest record could harm your future in job applications, housing, and other background checks. Record sealing removes this stigma and negative associations associated with an arrest. It also protects your privacy and reputation. Sealed records are not visible to the public but are available to law enforcement agencies, prosecutors, and some government bodies. These entities can still access your sealed records for future criminal investigations. Therefore, the sealing process only partially wipes out the record.

     2. Record Expungement Overview

Expungement in California allows individuals to remove their criminal records. It is not a blanket erasure of the criminal record but a particular legal procedure under which specific crimes or arrests are removed from a public record.

After a criminal record expungement, you do not have to disclose certain past convictions on job, housing, or loan applications. However, there are exceptions, including applications for jobs that require professional licenses or work with government agencies. Your criminal record may still become visible to employers or agencies in such cases.

The first step in the expungement process is to determine if you qualify. Eligibility depends on various factors, including:

  • The type of crime
  • The sentence
  • Whether all sentence conditions were met, including probation

California laws prohibit expunging crimes such as violent felonies or sex offenses. If you served time in state rather than county jail, you may also not qualify.

If you are eligible, the expungement process involves filing a petition with the court. You must obtain documentation, file paperwork with the appropriate jurisdiction, and attend a court hearing. You should follow all legal requirements carefully because your petition can only be allowed if you meet the procedural demands.

An experienced attorney can help you do everything right and increase your chances of success. California law allows people to file independently, but having a lawyer makes it easier and lessens the possibility of delays or errors.

Pardons

A pardon represents clemency, where the state or federal government forgives your criminal conviction. It gives back lost rights due to the conviction, like the right:

  • to vote
  • to own firearms
  • to run for public office

A pardon has a lot of bearing on your future, but it does not automatically expunge or seal your criminal record. Instead, it is a public statement of forgiveness from the government.

For state convictions, the process starts with a formal application to the governor's office and, for federal offenses, to the President. In California, you must first obtain a certificate of rehabilitation before applying for a pardon. The process can be long and arduous, involving investigations into your behavior after conviction, the crime itself, and the harm to victims.

Receiving a pardon is rare but not impossible if you demonstrate significant rehabilitation and present a compelling case. Judges, prosecutors, and defense attorneys involved in the original case or who know your subsequent actions may judge your pardon application.

Differences Between Record Sealing and Expungement in California

The primary aim of California record sealing and expungement is to restrict public access to your criminal history. However, they do different things with different consequences for your record.

The Process Involved In Sealing and Expungement Of Records

  • Record Sealing

The steps involved in record sealing require careful attention to detail. You must first petition the court where your criminal proceedings occurred. Filing a petition here requires supporting documents about the detailed legal issues. Depending on your criminal history, the nature of the offense, and when else you have been sentenced for that offense, the court will determine whether you are eligible.

California’s laws on record sealing include arrests that did not result in convictions and those who completed diversion programs. If you were not convicted or your charges were dismissed, you may file a petition under Penal Code 851.91 to have your arrest records sealed. If the petition is granted, all court documents, police reports, and booking information are sealed and unavailable to the public domain. Sealing applies to felony and misdemeanor arrests.

California goes easy on juvenile records in particular. Welfare and Institutions Code Section 781 allows minors to petition for certain records to be sealed. Sealing occurs if the minor completes the terms of probation or if the court finds that it is in the interest of justice for the records to be sealed. Once sealed, these juvenile records appear as though the incident never happened.

  • Record Expungement

California expungement differs from record sealing, even though both are intended to help clear an individual's record and avoid the negative consequences of a criminal conviction. To begin the expungement process, you file a petition per Penal Code 1203.4. This law permits those convicted of certain crimes to withdraw their guilty or no-contest plea and have the cases dismissed. Once that happens, the conviction will be marked as dismissed, but the record will not be removed entirely from your record.

You must do your time, including probation and community service, and pay all fines or restitution. You will petition the court once you meet these requirements, and a judge will decide whether to expunge. In making this decision, the court considers your criminal history, the nature of the crime, and evidence of rehabilitation.

Qualifications For Sealing and Expungement Of Records

  • Record Sealing

Some conditions must be met to qualify for record sealing in California, depending on the specifics of your case. Per California Penal Code 851.91, you can usually have the arrest record sealed if you were arrested—but not convicted—because the charges were dropped, dismissed, or acquitted at trial. You can file a record-sealing petition if there is no conviction, no plea of no contest, and no guilty plea entered. If charges are filed but later dismissed, you can still be eligible.

A person who successfully finishes a pretrial diversion program may also be eligible for record sealing. Drug or mental health diversion programs, for example, allow defendants to avoid conviction by completing certain rehabilitation requirements. Once the program is completed, the arrest record may be sealed.

Sealing eligibility for juvenile offenders is determined under Welfare and Institutions Code Section 781. Juveniles who finish probation or meet certain conditions may have their juvenile records sealed. However, the juvenile may not be eligible if the offense for which they were convicted was serious or violent, such as murder or sex crimes.

  • Record Expungement

Expungement in California is more stringent than sealing requirements. Penal Code 1203.4 governs expungement and generally only applies to those convicted who completed their sentence, including probation. When you have served your probationary period, you petition the court for expungement. An early termination of probation may expedite the process, but only if the probationer has been demonstrating good conduct.

As long as they did not serve time in state prison, those convicted of misdemeanors or felonies can also expunge their record. However, you might not qualify for expungement if you served time in state prison. Instead, you would have to pursue a different form of relief, a certificate of rehabilitation.

Not all serious offenses can be expunged, for example, sex crimes against a child or particularly violent crimes. Additionally, expungement does not eliminate your responsibility to be registered as a sex offender or erase your record. However, it does allow you to withdraw a guilty or no contest plea, dismiss the conviction, and present yourself as having a clean record to employers, landlords, and others.

Sing Up Of Sealed or Expunged Records In Background Checks

  • Record Sealing

Sealing your record in California means your record will disappear from most public background checks. The record is unavailable to potential employers, landlords, and the public. So, if a private recruiting company conducts a standard background check, your sealed record will not be used.

Sealed records are not entirely erased. Under certain circumstances, some government agencies can still access these records. For example, law enforcement agencies still have the right to view your sealed record during criminal investigations or in cases where public safety is at risk. Your record can still be reviewed if you apply for a state license or other government-regulated professions.

Record sealing offers many advantages regarding background checks, particularly for people seeking employment or housing. Sealing your record helps many people overcome obstacles in these areas and helps to rebuild their lives after an arrest.

  • Record Expungement

After your record is expunged under California Penal Code 1203.4, the conviction is dismissed, and you are permitted to respond “no” to most private employers when asked whether you have ever been convicted of a crime. Unfortunately, expunged records are not entirely erased from your criminal record as sealed records are. The record appears but is marked as ‘dismissed.’

Expunged records, like sealed records, can be accessed by some government agencies. For example, you may still have to disclose your expunged record when applying for a government job or seeking professional licensing. Some expungements do not allow you to avoid all consequences of the conviction, such as sex offender registration and immigration-related issues. Law enforcement and some licensing boards retain the right to view expunged convictions.

The CARE Act PC 851.91 and Factual Motion PC 851.8

Penal Code 851.91, the California CARE Act, allows those who were arrested but not convicted to petition for the sealing of their arrest record. This act is critical in providing the wrongfully arrested and those whose cases were dismissed a second chance to keep a clean public record. It allows anyone whose arrest does not lead to a conviction—even if charges are dropped, dismissed, or the person is acquitted—to have their record sealed.

The idea behind the CARE Act was to mitigate the long-term effects of arrests, which sometimes do not result in convictions. Having an arrest show up on a background check is a problem for many people who find it hard to get employment, housing, and educational opportunities. However, the law recognizes that an arrest alone should not dictate someone’s future and allows someone to seal and have those records removed from public scrutiny.

Sealing under PC 851.91 involves the petitioner filing a motion in the court where the arrest occurred. The court then reviews the facts of the case and decides whether the arrest is eligible for sealing. The record would be sealed and removed from most public background checks, and the individual would be relieved of the long-lasting effects of an arrest record.

Factual Innocence and PC 851.8

Penal Code 851.8 allows individuals to seal their arrest record and proclaim that they are factually innocent of the crime for which they were arrested. A Factual Innocence motion is filed with the court to review the evidence and find no reasonable cause for the arrest. The court will then grant an order to seal and destroy the record so that it appears as if the arrest never occurred.

Proving factual innocence is higher than sealing under PC 851.91. The petitioner must show that they are innocent of the crime, that the charges have been dropped, or that they have been acquitted. A successful case will destroy the entire arrest record, providing unprecedented relief for those wrongly accused.

Once the individual has been factually declared innocent, no one, including law enforcement or government agencies, can access the individual’s arrest record. This erasure gives a person peace of mind and the freedom to put the past behind them, no longer shrouded by a past arrest.

Both PC 851.91 and PC 851.8 offer individuals a path to clear their names, but the degree of relief they provide differs. Sealing under PC 851.91 offers protection from public exposure, while a Factual Innocence motion under PC 851.8 goes even further by eliminating the arrest record.

California's "Clean Slate Law"

Senate Bill 731 (SB-731), the California “Clean Slate Law,” is a major step toward making record clearance available to more people convicted of criminal offenses. The law, effective Jan. 1, 2023, provides automatic sealing of records for people who have completed their sentences and have a crime-free record for at least four years without petitioning the court.

The law is based on earlier legislative efforts to relieve people of the weight of past convictions that may block them from obtaining housing, employment, and other means of reintegrating into society.

Before SB-731, clearing or sealing a criminal record in California involved going to court and sometimes hiring a lawyer. The law simplifies this process, making certain records eligible for automatic sealing. The period for which the individual must not have committed another offense to qualify is also specified. SB-731, however, does not apply to all criminal offenses. This law does not automatically relieve someone of serious violent crimes, like certain sex crimes or felonies.

The Clean Slate Law breaks new ground, giving credit where credit is due for social and economic hardship brought on by having a criminal record, even after serving the full sentence. SB-731 seeks to balance public safety and rehabilitation by allowing those who have shown that they are living law-abiding lives to return to society fully. Once the record is sealed, it will stop showing up in most background checks, and people will be free to enter certain professions, such as jobs, housing, or professional licenses, without the stigma of a past conviction.

However, other governmental and law enforcement agencies have access to sealed records. This exception is critical for people in law enforcement and security-sensitive jobs and for people seeking public office. Under the Clean Slate Law, relief is granted while the public interest in safety and security is preserved.

SB-731 is part of a broader national movement to reform our criminal justice system and reduce recidivism by removing barriers to successful reentry. This law reflects the state's growing commitment to criminal justice policies that reward rehabilitation over punishment and offer second chances. If you are eligible for relief under SB-731, your record may be automatically sealed, but it is always wise to consult a criminal defense attorney to ensure that your rights are fully protected under the law.

Find a San Jose Criminal Defense Lawyer Near Me

Record sealing or expungement can help you move forward, but each has criteria and legal effects that should be closely watched. If you want to clear your arrest or criminal record, work with a defense team that is well-versed in both options. If you are in the San Jose area, you can trust our team at California Criminal Lawyer Group for help with record sealing or expungement. Get in touch with us at 408-622-0204 to see how we can help you.