Can you seal a domestic violence charge? important things you need to know

Picture showing an order to seal a domestic violence charge

Can you seal a domestic violence charge? Having a criminal record can be a major burden to individuals, especially those with domestic violence arrest. There are negative consequences with you being arrested and having potential criminal proceedings against you. Having such charges on your record can have negative repercussions in the line of social consequences even if you got arrested but the case was not charged and rejected. This is because your arrest and court records if the case was filed and dismissed is still visible. 

Recent successful effort to seal a domestic violence charge.

So what if you find yourself in this situation? Is there any way to get rid of the arrest?  You may have heard about seal a domestic violence charge pursuant to Penal Code 851.91 but how does it work for your case?

IF you have been convicted of a domestic violence then you’re not eligible for sealing. You will want to see if your Domestic Violence could be expunged.  In this article, I’ll explain the process to seal a domestic violence charge charge where a person does not go to court on criminal charges and also look at other alternatives for individuals who want to clear their criminal history  from a Domestic Violence incident. 

If my charge gets dismissed, is my criminal record clear?

If your charge for a domestic violence-related offense gets dismissed or dropped (either thru a pretrial diversion program or plea agreement with your criminal defense attorney), or simply not filed beyond the statue of limitations, your criminal record is not automatically cleared. In California, your arrest records is still there. It may be subject to be sealed e through an order from the court but this will not happen automatically. It is important to note, however, that even if the charges are sealed from your criminal record does not mean that they won’t appear on your RAP sheet.The records may still show up in certain background checks and in some states the police or courts will still have access to your criminal offenses. If you request your criminal record from the California Department of Justice then they will send you a copy.

Sealing a Domestic Battery Charge

A Plea of Guilty or No Contest Will Prevent You From Sealing the Case

The difference if you want to seal a domestic violence charge and expungement is that one has to do with a conviction and the other one doesn’t. In a domestic violence case, if you plead either guilty or no contest, it will not allow you to have the charges sealed from your criminal record. This means that your arrest and conviction will remain in public records for all to see. However, if your domestic violence offense  resulted in a conviction, then that means you can go after the expungement. An expungement process under 1203.4 will legally make it so that you can say that you have not been convicted for the charge. However during this process you will have to wait a period of time which is equivalent to probation. If you were convicted then you will want to talk with an expungement attorney about your case.  

 This means that if this was the only thing on your record then you can say that you have not been convicted of a domestic battery conviction

However some people do not want to be convicted in the first place nor do they want a plea bargain for a domestic battery charge. So then they fight the case all the way to jury trial with their criminal defense lawyer. By pleading not guilty and fighting the charges in court they are going after the  dismissal. If this happens then you may be eligible to petition the court for to get your arrest record sealed. This is one way in which you could do everything possible to seal a domestic violence charge from being seen on a background check.

If you are unsure if how to handle this situation then the best course of action is usually consulting an experienced lawyer who can advise you on how best to seal a domestic violence charge. When consulting a domestic violence attorney it is important that they practice in the local courts and are familiar with the courtrooms on your case. 

Why a Domestic Violence Arrest Charge Can be a Problem

Domestic violence arrest charges can lead to a variety of problems. In some cases, the person charged with domestic violence will have their record out there for the world to see.  People can look them up on the court system if they had a case or employers may ask about it. The criminal charges are visible even if the case was dismissed or brought down to a Penal Code 415 (disturbing the Peace). This means that whoever looks up your name on or the police report arrest logs will be able to see your domestic violence records.   

At the same time, however, a domestic violence charge can stay on an individual’s record for life even if they were never convicted and there was no court case. This could create long-term difficulties, such as potential employers being discouraged from hiring someone with any kind of violent history or lifestyle. 

For these reasons and more, it is important for all those involved in an incident of domestic violence crime to take it seriously and seek immediate help from experienced professionals in order to seal a domestic violence charge connected with the event. While sealing records might not erase every consequence on its own, it can at least help prevent further repercussions down the road.

The Sealing Process

Any person arrested with a misdemeanor or felony related to a domestic violence incident can apply to seal a domestic violence under California Statute 851.91. The sealing process involves first filing paperwork with the court, then serving the arresting agency and the prosecutor to check on the status of the case.   Once all of the documents have been gathered, they will be reviewed by the judge to determine if it is in the best interest of justice that the arrest record be sealed. This process can take up to 45-60 days to seal a domestic violence charge depending on the courthouse, it may have a hearing that involves both the law enforcement and the district attorney. The purpose of this hearing is to decide if you are eligible for the relief. One of the most common objections for domestic violence cases in California and more specifically in the Orange County Court System is that the charge is a felony offense and the prosecutors have up to 3 years to file. 

Once approved seal a domestic violence charge, your arrest record will be immediately sealed from public view and any inquiries into your background will not reveal information about that incident or charge. If you had a case in the Orange County Court System and it was filed then the court will take your matter out of the system so people can’t look up your name.

Although you won’t be able to erase your criminal past completely, to seal a domestic violence charge is a great way to move forward with life because then no one can look you up and see that you were arrested for domestic violence.

 How do I seal my domestic violence charge?

After that you are eligible to seal your domestic violence charge. An arrest record can only be sealed by filing a specific petition with the court and serving the appropriate parties.

What are the legal ramifications?

If you seal a domestic violence charge successfully it will prevent any member of the public from obtaining records relating to your arrest or documents within your court case. This law enforcement agency may not release what they have on you relating to this arrest.  Your record of arrests is protected against anyone who wants to see it. 

What is the eligibility for sealing my arrest records?

The first thing you have to do is wait for the statute of limitations on your case to run if you want to seal a domestic violence charge. This means waiting for the case to not be filed for the year. If you do not do this then there is a high chance your petition will be denied. If your case is still within the year and your domestic violence case has not been filed yet then you will want to know what it means.

What are the Exceptions that would disqualify me from Sealing my Domestic Violence Charge?

If you have a pattern of this conduct then this will bar you from the relief of sealing your criminal arrest. For example child abuse and neglect. The term “pattern” is defined as either: Two of more convictions of the above crimes; or Five or more separate arrests each within 3 years from each other. These exceptions usually fall under the crimes of elder and child abuse. 

What is the burden?

You have the initial burden to prove that you qualify for this remedy. However, unlike 851.8 where you have to prove you were factually innocent. The prosecution in this case will bring in the law enforcement agency and put on a hearing with the police officer.  However the burden for 851.91 is different. For 851.91 you only have to prove that the statue of limitations have run on your case and that no case has been filed from this incident. 

Does an Sealing my Domestic Violence Case erase my arrest?

Contrary to popular belief, sealing your domestic violence case does not erase your arrest. Law enforcement and the government will still have access to it. 

What is the legal benefit sealing my Domestic Violence Charge?

Sealing your domestic violence  under Penal Code 851.91 pc will order all records relating to your case to be closed and not available for viewing by any member of the public. It  will also allow you to legally answer that you have not been arrested if anyone ask you a direct question as to whether you have been arrested on your criminal background checks. 

What if the court grants my petition to seal?

If the court grants your petition to seal under PC 851.91, then there are statutory formalities that must be followed: The court will transmit a disposition report to the California Department of Justice. 
Issue a written order to you, the prosecution, and arresting agency that your records are ordered sealed. A copy will provided to you in the form of an order for your records. 
Issue an order that the arrest is deemed not to have occurred and the petitioner will be released from all penalties or disability as a result of your arrest. This means that even if someone does see it then they can’t use it against you. 
The police agency must seal all investigative reports relating to your arrest and not be accessible by any member of the public. This means that if someone like a victim wanted or a relative wanted the report then normally they can get it. However, after the sealing then they would be prohibited from seeing. 
The court records will be sealed and not be made public; Order that it is a civil penalty to disseminate sealed court and arrest records.

What is the difference between sealing records and petitioning for factual innocence?

As explained above, the 851.8 or factual innocence involves proving that you did not do it. This means that even if an officer has no proof but thinks that you did it then the relief will be denied. This is not the case with 851.91 where you only have to prove that the statue of limitations has run on the Domestic Violence case and that no case will be filed. 

How Do I Seal My Domestic Violence Arrest Records?

If you have been arrested for domestic violence, you may be able to get your criminal records sealed in order to protect your privacy. In order to do so, you must first file a petition in the court where the case was heard or handled. The court will then decide whether or not to grant the petition and seal your records. Generally, if a court decides to seal your records it means that all information regarding your arrest and/or conviction related to the domestic violence case is no longer available for public view. Additionally, employers and background check companies are legally barred from accessing this information in most cases. This process is not available if you have a domestic violence conviction. If you have a conviction you should go with the expungement process instead. 

It is important to note that each state has different laws and regulations regarding sealing criminal records stemming from domestic violence convictions, so it is best to consult with a lawyer familiar with those laws before taking any further steps.

How Is Sealing Different From Expungement In California?

In California, sealing and expungement are two different procedures that both help individuals who have been arrested for domestic violence. Sealing is the process of keeping arrest records away from the public eye and confidential. This means that the information will not be accessible to the public or employers unless granted permission by a court order.

Expungement is the process of undoing a conviction. This effectively undoes the conviction and changes the plea to a not guilty and dismisses the case.  This makes it so that the person can answer that they have not been convicted of the charge.
Each one of these reliefs addresses a different scenario. One deals with California Penal Code 1203.4 and the other one deals with California Penal Code 851.91. However each must be requested from the court by filing a petition.

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Hand down the best attorney I have ever worked with!!! My friend recommended Hieu because I needed to expunge something I did when I was young and dumb. Hieu is very humble, personable, and made me feel very comfortable. He's surprisingly funny too. Something not all lawyers are / can do. His pricing is very reasonable and he updated me on everything frequently. I highly recommend him!!!!

Lila K

I had interviewed many attorneys to discuss my very unfortunate situation that was set by someone I knew. Hieu Vu was the most honest, caring, and professional attorney with compassion and empathy I ever interviewed. HE REALLY HAD A HEART. His fees were very reasonable and he will fight for you not just for your dollars but because he cares for his clients... I would strongly recommend him if you feel your life is upside down. Things happen but we learn to become better person.

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