CARE ACT 2018

NEW LAW SEALS ARREST RECORD FOR THOSE ARRESTED BUT NEVER CONVICTED OF A CRIME

Why is this new CARE ACT 2018 law important?

On January 1, 2018, California’s C.A.R.E. Act (Consumer Arrest Record Equity Act, Senate Bill 393,) came into effect. The benefits cannot be understated for those who are eligible. This law seals arrest records for those who have been arrested but not convicted of a crime; that means that the previously public arrest record will now be private, protected information that will not show up on criminal background checks. Click Here for more information.

Under the previous laws, the burden was on the arrested person to prove that they were “factually innocent”. The law under §851.8 also included a burdensome time restraint of only two years to be able to pursue the relief. That standard was difficult to meet and that relief was almost never granted. Thus employers, housing authorities, dating partners, and countless other entities were free to use this information in a discriminatory way that violated the arrested person’s privacy and led to the loss of opportunity for those affected.

Now under the new CARE ACT 2018 law, the petitioner can have their arrest record sealed as a matter of right. It also prohibits anyone from disseminating information related to the sealed arrest and imposes a civil fine between $500-$2,500 per violation on those who violate this law.

Who is eligible for relief under this new law?

• Those who were arrested but ultimately NOT charged with a crime (§851.91)

• Those arrested, charged, and whose charges were subsequently DISMISSED (§851.91)

• Those arrested, charged, but who completed drug diversion, other DIVERSION, or DEFERRED ENTRY OF JUDGEMENT (§851.87)

• Those who were arrested, charged, and ACQUITTED i.e. found “not guilty” at trial (§851.91)

When can eligible persons obtain relief?

• Although there is no expiration date to pursue this relief, an individual becomes eligible as a matter of right after the Statute of Limitation lapses for the given offense they were arrested.

• Thus, if you are arrested for a misdemeanor, you must wait one year before petitioning to seal arrest

• If you are arrested for a felony, you must wait three years before petitioning to seal the arrest

What is the process?

Although the C.A.R.E. Act directs the Judicial Council to create forms to be utilized by a person applying to have his or her arrest sealed, a competent attorney can begin obtaining relief for eligible persons by filing a petition that includes the following:

• A petition must be filed in the court of the county in which petitioner was arrested at least 15 days prior to the hearing of the petition;

 A copy must be served upon the prosecuting attorney of the city or county, and upon the law enforcement agency that made the arrest

• The petition must include all of the following information:

• Petitioner’s name and date of birth
      • Date of the arrest for which sealing is sought
• City and county in where arrest took place
• The law enforcement agency that made the arrest and any other identifying information such as police report # and court case #
• The offenses alleged upon which the arrest was made

After a hearing is conducted, and the petition for sealing arrest records is granted, the court is required to issue a written ruling and order the following (among others):

• The arrest record is sealed and the arrest is deemed NOT to have occurred; the petitioner may answer questions accordingly related to the arrest, and the petitioner is released from all penalties and disabilities resulting from arrest

• 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, and to the agency that administers the master local summary criminal history

• Within 30 days, the court shall forward a disposition report to the Department of Justice indicating that relief has been ordered law.

Are there any exceptions to the C.A.R.E. Act?

If an arrestee’s record demonstrates a pattern of conduct, such as five or more prior arrests for the following charges:

• Domestic violence

• Child abuse

• Elder Abuse;

Then a petition may only be granted upon a showing that the sealing of the arrest will be in the interest of justice. In addition, the law states that if the petitioner intentionally evaded law enforcement efforts to prosecute the case, such as engaging in identity fraud, or leaving the jurisdiction in which arrest was made until statute of limitations has run, then the petitioner may be denied relief.

Contact the Law Office of Valery Nechay now for a free consultation to determine whether you qualify for having your arrest records sealed.

 

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