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Entry Date: 08/5/2018

PC 851.91

PC 851.91 Who is Eligible for Sealing Arrest Records?

The law allowing individuals to petition the court to seal their criminal arrest records has been revised by California legislature.  The new statute, Penal Code section 851.91, addresses the unfortunate social stigma from being arrested, especially in the case where the charges are dismissed or you are found not guilty.  It is now possible to seal and destroy your arrest record without proving to the court you are factually innocent, a difficult standard to meet.

 The new law applies to you if the statute of limitations for the prosecutor to charge you has passed, (one year for a misdemeanor and usually three years for a felony), or you were charged in court, but the case was later dismissed or you were found not guilty after trial.  There are some exceptions when dealing with a government agency, but for most purposes, after the court orders the sealing and destruction of the records, you can affirmatively declare you have not been arrested in that case.  For those who were never convicted but have been arrested, PC 851.91 recognizes the non-conviction and thus the issue of an arrest record negatively affecting the life of an individual who cannot be charged for the alleged crime.

How to Seal Arrest Records?

There is only one way to seal your arrest record; obtain an order from a judge in the jurisdiction where the arrest took place or where the case was filed.  A hearing must be held to determine the specifics of your case/arrest and the eligibility for sealing the records.

Eligibility Requirements for Sealing Arrest Records Under PC 851.91 –

Not just anyone can seal their arrest records–and in some instances it is very difficult.

Eligible individuals are not necessarily guaranteed their records will be sealed.  In some circumstances it is in the judge’s power and discretion to grant or deny your petition. These instances pertain to domestic violence and patterns of either child or elder abuse. These sorts of crimes involve vulnerable groups that often are family members and live together. It’s fitting that the court  is bestowed the task of identifying a pattern of arrests around domestic abuse charges so that she or he does not seal a record, which may, in conjunction with many similar arrest records, point to a pattern of misconduct by the individual.  Additionally, the judge must consider prior criminal records, evidence regarding the arrest, evidence regarding individual’s good moral character and any hardships caused by the arrest.  This is the kind of comprehensive evaluation of your arrest and circumstances the attorneys at Ferrentino & Associates, Inc. develops to present the most compelling argument that you deserve relief, no matter your charges.   

Contact us today if you are interested in clearing up your arrest record.  

 

Entry Date: 07/23/2018

AB1810 & MENTAL HEALTH DIVERSION

There has been much discussion and debate about the new bill AB1810 which was recently signed by Gov. Jerry Brown in June regarding a wide range of budget and health issues.  The bill will provide numerous health safeguards for the public, such as specific protections for persons suffering from mental illness who find themselves in the criminal justice system. allows, under specific circumstances, for a defendant charged with a crime, misdemeanor or felony, to be diverted to mental health treatment for up to two years instead of facing a conviction, jail and prison. Yet the most obvious concern is that mentally competent people will use this as a means to escape prosecution. But what criteria must be met for diversion to take place?  Let’s look.

First, the defendant must show that he or she suffers from a mental disorder.  Second, this mental disorder must have played a significant role in the commission of the charged crime.  Finally,  a a mental health expert must then hold the opinion that the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.  If the court is convinced of all three criteria, it can divert the defendant to treatment, and if successful, the defendant’s case will be dismissed.

Those opposing the new law are concerned about public safety.  However, the bill also addresses this in the sense the court must deem the individual not posing any unreasonable risk to public safety (as well as to themselves).  The true safety net to this bill is an extensive part of the section which primarily addresses the time while the defendant is in the program.  They can be easily removed from the program for several reason; if they are charged with an additional misdemeanor or felony, if they are engaged in criminal conduct, if a qualified mental health expert deems they are performing unsatisfactory in program, or if the defendant is gravely disabled.

Another concern voiced by opponents of the law is that these records are completely erased and that there is no way to know who has participated in a diversion program.  This is clearly not the case based on the following section of the bill;

(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.

In all, it seems that AB1810 allows for the court to further consider the effect of a person’s mental health in relation to criminal activity, helping to address a deeply rooted tie between mental health and crime.  And it also moves those suffering from mental illness out of prisons and into treatment facilities. Not only will this provide more humane treatment to ill individuals, it will save taxpayers a tremendous amount of money because prisons are simply not equipped to address the many needs of those suffering from mental illnesses.

If you have a loved one who is charged with a crime, call Ferrentino & Associates today to see what alternatives to prosecution and jail are available for your loved one.