Peter Blair | March 11, 2015 | Privacy Laws
If you are arrested in California but never charged with a crime, state law establishes a process for having your arrest record sealed and destroyed.
California Penal Code 851.8 defines the process this way: “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 arrest…The law enforcement agency having jurisdiction over the offense, upon a determination that the person arrested is factually innocent, shall, with the concurrence of the prosecuting attorney, seal its arrest records, and the petition for relief under this section for three years from the date of the arrest and thereafter destroy its arrest records and the petition.”
In layman’s terms, this allows people who were never convicted of a crime to avoid the professional and long-term ramifications of having an unfounded arrest on their record. Through this process, the police department can seal the arrest records for three years from the arrest date and permanently destroy the records afterward.
Here is a quick look at the options involved in filing a petition to seal and destroy arrest records:
- Petition the law enforcement agency. Whether it’s the local police department, a state police force, or another type of law enforcement agency, identify whose jurisdiction your arrest falls under. You and your lawyer should work to convince the police that you were factually innocent; if the police agree, they can seal the arrest records for three years and destroy the records after that three-year period. If they do not grant your request or fail to respond within 60 days’ time, you should try the court route instead.
- Petition the court. For people whose petitions were denied by the police department, this would be the second step. However, petitioning the court should be the first step for people whose cases were dismissed in court (after charges were filed) or whose cases were acquitted by a jury. If the judge believes the defendant is “factually innocent,” he or she can order the records to be sealed and destroyed.
Determining “factual innocence” is not always easy. Essentially, the arrest record must exonerate you, not just raise doubt as to your guilt. Because of this, it is extremely important to retain an experienced criminal defense attorney who can speak on your behalf and navigate the court system effectively.
Keep in mind that this petition and process is only appropriate for those who were never convicted. Even if you were convicted and later had it dismissed through the California expungement process, this type of petition will not clear your arrest record. This method is also not designed for those looking to avoid registration as a sex offender under Penal Code 290 PC; the only way to avoid this is to obtain a Certificate of Rehabilitation or a pardon from the governor.
It is important to note that sealing and destroying arrest records is a completely different process than having your criminal record expunged. Under California Penal Code 1203.4 PC, certain California offenders who successfully complete probation can have their criminal records expunged. However, only certain offenders—who did not spend time in California state prison—are eligible for expungement; certain offenses, such as serious sex crimes committed against children, disqualify the candidate for expungement.
Whether or not the judge decides to expunge your criminal record can also depend on your criminal history; the nature of your underlying conviction; your overall performance while on probation; and any other evidence relevant to your request, such as your opportunity to obtain good employment, the support you provide for your family, and/or your community ties.