When individuals seek to clean their criminal record, two common options are expungement and record sealing. Both processes aim to limit access to criminal records, but they function differently and carry distinct legal implications. As California’s leading expungement attorney, I’ll break down the key differences between expungement and sealing, their benefits, limitations, and how they affect your future opportunities. Understanding the difference can help you make the best decision for your specific legal situation.
What is Expungement?
Expungement, governed by California Penal Code § 1203.4, is the legal process that allows an individual to withdraw a plea of guilty or no contest, or to have a guilty verdict set aside. After the expungement, the conviction is dismissed, and the case is essentially closed. However, while expungement removes the conviction from most public records and allows individuals to truthfully state that they haven’t been convicted in most situations, the conviction is not entirely erased from your history.
The key characteristics of expungement include:
- Disclosure: Once a record is expunged, you do not have to disclose the conviction to most private employers. However, you may still need to disclose it for government jobs, state licenses, or law enforcement positions.
- Public Access: Expunged records are no longer accessible in standard background checks but may still be available for government agencies.
- Criminal Consequences: Even if a conviction is expunged, it can still be used as a prior offense if you are convicted of another crime in the future, especially for sentencing enhancements.
Expungement is available to those who meet the eligibility requirements, including the completion of probation and the absence of any new criminal charges or probation violations.
What is Sealing?
Sealing a criminal record, which is different from expungement, involves physically or electronically sealing the criminal records so that they are no longer accessible to the public or most entities. In California, record sealing is commonly applied to juvenile records, but it can also apply to certain adult records under specific circumstances, such as wrongful arrests or cases where no charges were filed.
The key characteristics of record sealing include:
- Access: When a record is sealed, it is not accessible to the public, employers, or private investigators. Only certain government agencies, such as law enforcement, have access to the sealed record.
- Erasure of Record: Sealing often carries stronger privacy protections than expungement. In certain situations, it can be as if the record never existed, meaning you can legally deny that you were ever arrested or charged.
- Eligibility: Record sealing is available in more limited circumstances. For example, juvenile records can often be sealed, and adults may be eligible if they were wrongfully arrested or the charges were dropped or dismissed.
In essence, sealing a record removes it from public view and legally shields it from most entities, providing a higher level of protection against the impacts of a past criminal charge.
Expungement vs. Sealing: The Key Differences
While both processes offer valuable benefits for individuals seeking to minimize the impact of a criminal record, there are several key differences between expungement and sealing.
- Availability
- Expungement: Available for adults convicted of misdemeanors or felonies (if probation was granted), assuming they have completed probation or their sentence and meet other eligibility criteria.
- Sealing: Typically applies to juvenile records, wrongful arrests, or cases where no conviction occurred. Sealing is also available for certain low-level offenses under new California laws such as Senate Bill 393.
- Effect on Criminal Record
- Expungement: The conviction is dismissed, but the record still exists. It can still be accessed by government agencies and used in future criminal proceedings.
- Sealing: The record is physically and electronically sealed, making it inaccessible to the public and most employers. In many cases, the individual can legally deny that the event ever occurred.
- Disclosure Requirements
- Expungement: You are no longer required to disclose the conviction for most jobs, but you must still disclose it when applying for government positions or professional licenses.
- Sealing: In most cases, you can legally deny that the arrest or charge ever happened, even when applying for government jobs or professional licenses.
- Future Criminal Proceedings
- Expungement: An expunged conviction can still be considered in future criminal cases, especially if you are convicted of another offense. Expunged DUIs, for example, are still considered prior offenses for sentencing purposes.
- Sealing: Sealed records are generally not accessible or usable in future criminal proceedings, although there are exceptions in certain serious cases.
Which Option is Better?
The decision between seeking expungement or record sealing depends on several factors, including the type of conviction, your current situation, and your future goals.
- Expungement: This is typically the better option for individuals who have completed probation for a conviction and want to improve their job prospects by removing the conviction from most background checks. It is more accessible and applies to a broader range of convictions than sealing.
- Sealing: If you were arrested but never convicted, or your case was dismissed, sealing offers stronger protections against disclosure. It is particularly useful for wrongful arrests or individuals who had charges dropped, as it fully shields the record from public view.
Ultimately, expungement is more commonly available and offers significant benefits, but sealing provides stronger privacy protections and can more fully erase the impact of a past arrest or charge.
Legal Authority for Expungement and Sealing
Both expungement and record sealing are governed by specific California statutes. Some key laws include:
- California Penal Code § 1203.4: Governs the expungement process, allowing individuals who have completed probation to petition the court to dismiss their conviction.
- California Penal Code § 851.8: Allows individuals to petition for record sealing following an arrest that did not result in a conviction or if they were wrongfully arrested.
- California Welfare & Institutions Code § 781: Governs the process of sealing juvenile records, allowing individuals who were adjudicated in juvenile court to have their records sealed after rehabilitation.
- California Penal Code § 851.91: Provides for the sealing of arrest records in cases where charges were not filed or were dismissed.
Conclusion
Expungement and record sealing are two valuable legal processes that allow individuals to mitigate the impact of a criminal record. While expungement is widely used to dismiss convictions and improve employment opportunities, sealing offers stronger privacy protections for wrongful arrests or charges that did not result in a conviction. Understanding the differences between these two processes is crucial for individuals looking to move forward with a clean record. Consulting with an experienced attorney can help you determine which option is best suited to your circumstances.
Citations
- California Penal Code § 1203.4
- California Penal Code § 851.8
- California Welfare & Institutions Code § 781
- California Penal Code § 851.91