Compliance Update – California Clean Slate Law Expansion
October 18th, 2022 | Chris Christian, Director of Compliance
On September 29, 2022, California Governor Gavin Newson signed Senate Bill 731 (SB 731) which expands the existing automatic and petition-based record sealing law. SB 731 is widely considered one of the most progressive “Clean Slate” laws in the country. “Clean Slate” laws refer to the legislative initiative by numerous states to allow for criminal record history to be cleared through automatic sealing and expungement of criminal records. SB 731 takes effect on July 1, 2023.
The new law amends Section 851.93 of the California Penal Code expanding automatic criminal record clearing of all felony non-convictions since January 1, 1973, six years after the date of arrest which meet the following conditions:
(A) The arrest was for a misdemeanor offense and the charge was dismissed.
(B) The arrest was for a misdemeanor offense, there is no indication that criminal proceedings have been initiated, at least one calendar year has elapsed since the date of the arrest, and no conviction occurred, or the arrestee was acquitted of any charges that arose, from that arrest.
(C) (i) The arrest was for a felony offense not described in clause (ii), there is no indication that criminal proceedings have been initiated, at least three calendar years have elapsed since the date of the arrest, and no conviction occurred, or the arrestee was acquitted of any charges arising, from that arrest.
(ii) If the arrest was for an offense punishable by imprisonment in the state prison for eight years or more or by imprisonment for eight years or more, there is no indication that criminal proceedings have been initiated, at least six years have elapsed since the date of the arrest, and no conviction occurred, or the arrestee was acquitted of any charges arising, from that arrest.
(D) The person successfully completed any of the following, relating to that arrest:
(i) A prefiling diversion program
(ii) A drug diversion program administered by a superior court, or a deferred entry of judgment program
(iii) A pretrial diversion program
(iv) A diversion program
The law does not pertain to record clearings which are subject to the following conditions:
(1) Does not relieve a person of the obligation to disclose an arrest in response to a direct question contained in a questionnaire or application for employment as a peace officer
(2) Has no effect on the ability of a criminal justice agency, to access and use records that are granted relief to the same extent that would have been permitted for a criminal justice agency had relief not been granted.
(3) Does not limit the ability of a district attorney to prosecute, within the applicable statute of limitations, an offense for which arrest relief has been granted pursuant to this section.
(4) does not affect a person’s authorization to own, possess, or have in the person’s custody or control a firearm, or the person’s susceptibility to conviction, if the arrest would otherwise affect this authorization or susceptibility.
(5) does not affect any prohibition from holding public office that would otherwise apply under law as a result of the arrest.
(6) does not affect the authority to receive, or take adverse action based on, criminal history information, including the authority to receive certified court records received or evaluated pursuant to Section 1522, 1568.09, 1569.17, or 1596.871 of the Health and Safety Code, or pursuant to any statutory or regulatory provisions that incorporate the criteria of those sections.
The new law amends Section 1203.41 of the California Penal Code by providing record clearing relief to a defendant who has been convicted of a felony, so long as that conviction does not require registration as a sex offender.
The law does not pertain to record clearing relief which are subject to the following conditions:
(1) does not release the defendant from the terms and conditions of any unexpired criminal protective orders that have been issued by the court pursuant to paragraph (1) of subdivision (i) of Section 136.2, subdivision (j) of Section 273.5, subdivision (l) of Section 368, or subdivision (k) of Section 646.9. These protective orders shall remain in full effect until expiration or until any further order by the court modifying or terminating the order, despite the dismissal of the underlying accusation or information.
(2) does not affect the authority to receive, or take adverse action based on, criminal history information, including the authority to receive certified court records received or evaluated pursuant to Section 1522, 1568.09, 1569.17, or 1596.871 of the Health and Safety Code, or pursuant to any statutory or regulatory provisions that incorporate the criteria of those sections. Relief granted does not make eligible a person who is otherwise ineligible to provide, or receive payment for providing, in-home supportive services pursuant to Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions Code, or pursuant to Section 14132.95, 14132.952, or 14132.956 of the Welfare and Institutions Code.
The new law amends Section 1203.425 to the California Penal Code by providing automatic conviction record relief to persons if they meet all of the following conditions:
(i) The person is not required to register pursuant to the Sex Offender Registration Act.
(ii) The person does not have an active record for local, state, or federal supervision in the Supervised Release File.
(iii) Based upon the information available in the department’s record, including disposition dates and sentencing terms, it does not appear that the person is currently serving a sentence for an offense and there is no indication of pending criminal charges.
(iv) The conviction meets either of the following criteria:
(I) The conviction occurred on or after January 1, 1973, and meets either of the following criteria:
(ia) The defendant was sentenced to probation and, based upon the disposition date and the term of probation specified in the department’s records, appears to have completed their term of probation without revocation.
(ib) The defendant was convicted of an infraction or misdemeanor, was not granted probation, and, based upon the disposition date and the term specified in the department’s records, the defendant appears to have completed their sentence, and at least one calendar year has elapsed since the date of judgment.
(II) The conviction occurred on or after January 1, 2005, the defendant was convicted of a felony other than one for which the defendant completed probation without revocation, and based upon the disposition date and the sentence specified in the department’s records, appears to have completed all terms of incarceration, probation, mandatory supervision, post-release community supervision, and parole, and a period of four years has elapsed since the date on which the defendant completed probation or supervision for that conviction and during which the defendant was not convicted of a new felony offense. This subclause does not apply to a conviction of a serious felony defined in subdivision (c) of Section 1192.7, a violent felony as defined in Section 667.5, or a felony offense requiring registration pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1.
SB 731 also prohibits the Commission on Teacher Credentialing from considering drug possession convictions which are more than five years old and record clearing relief has been granted. The new law also requires the California Department of Justice to provide criminal history information to public and private schools and other contracted entities where background checks are required.
The implementation of SB 731 by the state is difficult and complex. Implementation of the law consist of various steps by the California Department of Justice. For example, the Department must review statewide criminal justice databases monthly to identify persons with records eligible for record clearing and note a person’s record has been granted relief. The Department of Justice must also submit notices to the superior courts each month informing the courts of case records that were granted relief by the Department. In some circumstances, criminal record relief is not automatic and must be petitioned by the person in court and the court must review the conditions for before granting relief.
“Clean Slate” legislation like California SB 731, has been passed in other states such as Connecticut, Colorado, Michigan, New Jersey, Pennsylvania, and Utah. “Clean Slate” laws refers to a policy model for state legislatures to use in drafting and passing legislation that expands a person’s eligibility for arrest and conviction records clearing if that person has remained crime-free for a certain period.
Employers should review their hiring policies and programs when considering the new law. Employers should also consult with their legal counsel when considering updating their background screening and hiring policies and programs.
The full text of CA SB 731 can be found HERE.
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