California’s Process of Sealing and Destroying Arrest Records – Penal Code 851.8
For innocent people who get wrongfully arrested, California has a process by which you can get your arrest records sealed and destroyed. When you succeed with this process, the police reports, fingerprints, booking photos and all records of the arrest get eliminated. Moreover, you may then legally answer “no” whenever you’re asked whether you’ve ever been arrested.
But the process to seal and destroy arrest records in California is arduous and tricky. It almost always involves a contested hearing before a judge. It pays to have a good attorney on your side.
I’m a former deputy Sheriff and retired U.S. Marine with decades of experience helping clients to clear their criminal records. I’d be glad to help you.
In this article we explain how to have your arrest records sealed and destroyed by addressing the following:
1. Who is Eligible?
2. The Process of Sealing and Destroying California Criminal Records
3. The Benefits of Clearing Your Criminal Record
If, after reading this article, you would like more information, we invite you to contact us at 619-238-1905.
1. Who is Eligible?
Let’s start off with the basics. If you
- were arrested, but the prosecutor never filed criminal charges,
- had your case dismissed in court, or
- were acquitted by a jury following a California jury trial,
you may be entitled to have your California arrest records sealed and destroyed.
The critical factor is whether you suffered a conviction. If you did…and if you even later had it dismissed pursuant to Penal Code 1203.4 PC California’s expungement process…you are not eligible for this type of relief.
Similarly, this is not the appropriate motion to raise if you are trying to seek relief from your duty to register as a sex offender pursuant to Penal Code 290 PC. If you are required to register under Penal Code 290 PC, it means you have suffered a conviction. The appropriate remedy is to seek a Certificate of Rehabilitation or a Governor’s Pardon.
And it is important to note that a California motion to seal and destroy your arrest records is not a motion that applies to your entire criminal record. It is a motion that must be made and granted specific to each arrest that you wish to contest.
Timing issues
Generally speaking, you can petition to clear your arrest record up to two years after (1) the date of your arrest, or (2) the filing of the accusatory pleading, whichever is later. However, the judge has the discretion to hear cases beyond these time limits based on good cause.
2. The Process of Sealing and Destroying California Arrest Records
The process of sealing your arrest record typically takes about 90 days. The county in which you live will determine whether you must personally appear in court for the proceedings or whether your criminal defense attorney can appear on your behalf.
Sealing and destroying California criminal records may be either a one or two-step process.
Step 1 – Petition the law enforcement agency for relief
If you were arrested…but the prosecutor never filed charges against you…your first step in seeking relief is to petition the arresting law enforcement agency. If you (or your criminal defense lawyer) can convince the police agency that you were factually innocent, the police themselves will seal the arrest record for three years. Once the three-year period has expired, they will destroy the records.
If the police do not grant your request…or if they fail to respond within 60 days…you move on to the second step.
Step 2 – Petition the court
Once again, this second step is for those people who are denied relief by the police. However, this is the first and only step for those individuals who
- had their cases dismissed in court after charges were filed, or
- were acquitted by a jury.
And on that note, if…at the time of the dismissal…the judge believes the defendant is factually innocent, he/she may (with the prosecutor’s consent) grant the relief on his/her own motion. Similarly, if…at the time of the acquittal…the judge believes the defendant is factually innocent, he/she may simply order the records sealed and destroyed.
What does “factually innocent” mean?
In order to declare you ‘factually innocent’, the arrest record must exonerate you, not merely raise a substantial doubt as to your guilt.
And according to the California Court of Appeals, a finding of factual innocence shall not be made unless no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. “‘Reasonable cause’ is defined as that state of facts that would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime”.
The burden to prove factual innocence is on the defense
Assuming that the judge does not initiate the motion…and you must petition the court for the requested relief…the burden is on you to establish that there was no reasonable cause for your arrest. And…unlike the strict rules of evidence that govern a jury trial…California law allows the judge to consider a wide variety of evidence when ruling on this issue.
The court may evaluate police reports, affidavits, and any other evidence which is “material, relevant, and reliable”. This even includes evidence that the court previously suppressed pursuant to a Penal Code 1538.5 motion to suppress evidence, as well as any facts that were disclosed after your arrest.
If you meet your burden, it then shifts to the prosecution. If they wish to challenge your motion to seal and destroy your records, they must prove that reasonable cause did, in fact, exist. And both sides are entitled to appeal the court’s ruling.
The importance of hiring a skilled California criminal defense lawyer
Because the judge has so much discretion in deciding whether to grant or deny your motion to seal and destroy your California arrest records…and because the judge can deny your motion with prejudice so that you may not re-file your request…it is critical to hire a skilled California criminal defense attorney.
An experienced attorney will
- thoroughly research your case,
- make sure all paperwork is done correctly the first time to ensure that no time is lost due to incomplete or inadequate forms,
- conduct the hearing and argue your case to the judge, and
- help you contact potential employers to let them know that you are making legitimate efforts to clear your criminal record.
When the police or judge agree to clear my criminal record, how are my records destroyed?
When your California records are declared “sealed and destroyed”, the arresting law enforcement agency, Department of Justice, and any local, state, or federal law enforcement agency to which they have released records must
- destroy the arrest records, and
- destroy the request to destroy those records.
This means that these agencies must permanently obliterate “all entries or notations upon the records pertaining to the arrest, and the record shall be prepared again so that it appears that the arrest never occurred.” If the only entries on your record pertain to the arrest in question, then that document will be physically destroyed.
That said, if you or a codefendant files a civil lawsuit against the officer or law enforcement agency that made the illegal arrest alleging police misconduct or a United States Code 1983 civil rights violation, the records will not be destroyed until the case is resolved. This allows the otherwise “sealed” records to be “reopened” and admitted into evidence during the civil case.
Sealing juvenile records is a different process
Sealing and destroying your adult arrest records is a completely different process than sealing your juvenile records. You are eligible to seal your California juvenile criminal record if you are
- currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago, and
- as an adult, you have not been convicted of any crimes of moral turpitude (that is, crimes that involve dishonesty or immoral behavior), and
- there is no pending civil litigation based on the juvenile incident.
For more information about sealing your juvenile record, please review our article on sealing California juvenile records.
3. The Benefits of Clearing Your Criminal Record
Criminal records are public records. This means that anyone can access another person’s criminal history. And numerous private companies have made this information readily and easily available for a nominal fee to anyone who can provide a name and date of birth.
Prospective employers, state licensing agencies, insurance companies, etc…anyone who is interested in your criminal history…can simply run a background check and see your spotted past. Police reports, booking photos, fingerprints…these records don’t just go away. The arresting agency and Department of Justice maintain these records indefinitely unless and until you take the appropriate steps to have them destroyed.
And don’t be fooled…the fact that your arrest didn’t lead to a conviction most likely won’t win you any favor.
The fact is that any criminal history…whether it’s merely an arrest or even an acquittal…will prejudice people against you. And this is particularly hurtful in today’s tough economy and job market where it is more difficult than ever to secure employment.
Clearing your record allows you to say you’ve never been arrested for a crime
That’s right. The major benefit of sealing and destroying your criminal record is that when asked, you can legitimately and honestly state that you’ve never been arrested for a crime. This is particularly important, because many employment, school, housing, loan, and licensing applications don’t just ask if you’ve ever been convicted of a crime, but ask if you’ve ever been arrested for a crime.
When a judge orders your records to be sealed and destroyed, that is exactly what happens. All evidence of your criminal arrest is destroyed so that there is no record of it.
Once granted, California law provides that “the arrestee is thereby exonerated. Thereafter, the arrest shall be deemed never to have occurred, and the person may answer accordingly any question relating to its occurrence.”
