Many people do not realize that having a “criminal record” doesn’t always mean that you have been convicted of a crime. Merely being arrested (even if charges were never filed) can have an adverse effect on an individual’s ability to obtain employment. We have had clients apply for their dream job only to have an old arrest from years ago pop up on their background check. Even though you may have never been charged with any crime, the previous arrest record can show up on your rap sheet and have serious social and employment consequences.
Fortunately in California, pursuant to Penal Code 851.8, there is a process by which an individual can seal and destroy his or her arrest records. Once your arrest records have been sealed and destroyed, all the records (including police reports, fingerprints, rap entry and booking photos) are deleted. Thereafter, you can legally and confidently say “no” if an employer asks you whether you have been arrested on a job application.
A person who wins a 851.8 motion is also declared, “Factually Innocent” of the charges. That’s why an 851.8 motion is sometimes referred to as a “Petition for Factual Innocence.”
Below, you will find a simple guide that can answer some of your questions regarding sealing and destroying your arrest records in California. If you would like more information, request a free consultation with one of our professional record clearance attorneys.
PC 851.8 – Determining Your Eligibility
If you have been arrested but there were no charges filed by the prosecutor’s office…
PC 851.8(a) states that “In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the offense.”
If you have been arrested and charges were filed but no conviction occurred (the underlying case was dismissed or you were acquitted through a California jury trial)…
PC 851.8(c) states that “In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made.
Submitting Your Petition to Seal & Destroy Arrest Records
If you have been arrested and no charges were filed, PC 851.8 requires that you submit a “Petition to Seal and Destroy Arrest Records” to the arresting law enforcement agency. The agency then has the option to agree to the petition or deny it. If granted, the police will seal your records for three years. After three years, they will destroy your records. If you do not hear back from the arresting law enforcement agency within 60 days after you have submitted your petition, it has been denied. A formal petition for factual innocence will then need to be filed in Superior Court. A hearing will then be held on the question of your factual innocence in front of a judge.
If your case was dismissed, or you were acquitted by a jury, there is a slightly different mechanism. In these cases, you must submit your petition directly to the Superior Court that would have jurisdiction over your case. A copy of the petition must be filed with the DA’s office so they can respond. A hearing will then be held on the question of your factual innocence in front of a judge.
How much time do you have to submit your petition?
Generally you can petition to seal and destroy your records in California up to two years after the date you were arrested or the date that charges were filed against you. But if you can show good cause, the judge has discretion to hear your case beyond these deadlines.
How does the judge determine whether to grant or deny your petition?
Judges usually hold a short hearing where witnesses testify to determine whether to grant or deny your petition to seal and destroy your California arrest records. The judge has to make a decision as to whether or not you are “factually innocent” of the charges against you. This is the most difficult part of these types of hearings. You will need to prove to a judge that there was no “reasonable cause” to arrest you in the first place. If you can prove this, the judge will grant your petition and order your arrest records to be sealed and destroyed permanently. It will be as if the arrest never happened.
Need help with your California arrest records?
The process to seal and destroy your arrest records can be very complicated and usually involves a hearing before a judge. Therefore it is crucial to have an experienced criminal defense attorney that can assist you throughout the process. The criminal defense attorneys at VIB Law are always available to discuss your case and answer your questions regarding sealing and destroying your arrest records in California.
~~ Important 2019 Update ~~
On October 12, 2017, the California Legislature passed Senate Bill 393, the Consumer Arrest Record Equity (CARE) Act, which offers a second possible procedure to conduct arrest record sealings. This new law took effect on January 1, 2018. The CARE Act added Section 851.91 to the California Penal Code.
Using the new procedures outlined in this statute, a person who was arrested but ultimately not convicted of a crime may now petition the court to have his or her California arrest record completely expunged.
Although both PC 851.8 and the new PC 851.91 statutes involve arrest record sealings, there are important differences in terms of the requirements and effects of these motions.
The main difference in terms of eligibility of these two statutes come down to the difference between being “legally innocent” and “factually innocent.”
- PC 851.8 involves persons who are “factually innocent” of the crimes. In order words, “no reasonable cause” exists to believe that you committed the offense and you should never have been arrested in the first place.
- On the other hand, the new PC 851.91 statute involves persons who are “legally innocent” of the crime they were arrested for. In other words, you were never found guilty beyond a reasonable doubt and were never convicted of any crime.
The two statutes also provide different levels of safety in terms of sealing your arrest record. For example, an 851.8 arrest record sealing permanently removes your record for all purposes, while an 851.91 sealing has some limitations.
If you’d like to determine if you’re eligible for expungement under either of these arrest record sealing statutes, please contact our record clearance experts today to schedule a free consultation.