The CARE Act and Sealing Arrest Records

According to the California Department of Justice, in 2019 law enforcement made 7,113 arrests in Humboldt County. For many of those arrests, the District Attorney’s Office declined to file charges, or filed charges but later dismissed the case against the criminal defendant, leaving a paper trail showing that person was arrested, albeit never convicted. Employers are prohibited by law from using the fact that someone was arrested against you in making a hiring decision. Nevertheless, having an arrest record can, in practice, affect one’s ability to obtain employment, start a course of study at certain colleges or universities, attain professional licensing or certification, join the military, and/or obtain a security clearance.

Enter Senate Bill 393, the Consumer Arrest Record Equity (hence, “CARE”) Act, which Governor Brown signed into law October 12, 2017 and went into effect on January 1, 2018. The Act added section 851.91 and made other changes to the Penal Code, allowing individuals whose arrest “did not end in a conviction” to petition the Court to have the record of their arrest purged. Any of the following situations qualify as not ending in a conviction:

  1. An arrest was made, but the District Attorney’s Office did not file charges;
  2. Charges were filed but later dismissed;
  3. Charges were filed, but the person was acquitted (found not guilty) at trial;
  4. The person was convicted, but that conviction was overturned on appeal.

There are, of course, limitations and exceptions to the law. The one that is likely to apply most often is the fact that someone who has been arrested cannot petition the court under this law if charges can still be filed by the District Attorney’s Office, or, in other words, if the statute of limitations of the offense for which the person was arrested has not yet run. In that situation, the individual could choose to petition the court for a finding of factual innocence, a much more onerous process with a lower likelihood of success, or wait until the statute of limitations expires.

If you were arrested in California and your arrest did not end in a conviction, you may want to contact Janssen Malloy LLP to discuss whether you might be entitled to relief under the CARE Act.