Innocent people who were wrongfully arrested may request to have their arrest records sealed and destroyed. California Penal Code § 851.8 allows for the sealing and destruction of misdemeanor and felony arrest records for adults. This statute requires that petitioners must be “factually innocent,” which is different from and does not, therefore, have the same meaning as “not guilty.”
Factual innocence means that no reasonable cause exists to believe the petitioner committed the crime for which he or she was arrested. A motion to seal and destroy arrest records is not a motion that applies to an individual’s complete criminal record. Motions must be made and granted specific to each arrest.
A petition to seal and destroy adult arrest records for the factually innocent will accomplish the following:
- Hide the arrest from the view of the public who will no longer be able to see the arrest;
- Order the sealing and destruction of arrest records, police reports, fingerprints, booking photos, and all records of the arrest, so they will not show up on any criminal background check; and
- Deem the arrest never to have occurred. Successful petitioners may honestly state that they have never been arrested for this specific crime.
Petitioners must provide a copy of this petition to the prosecuting agency of the county or city having jurisdiction over the offense. The law enforcement agency may grant, deny, or do nothing with a petition. If the law enforcement agency grants the request and agrees that the petitioner was factually innocent, the agency will seal the arrest record for three years. Once this three-year period has expired, the agency will destroy the records.
If the law enforcement agency denies a request to seal and destroy an arrest record, or if it simply does not respond, a petitioner must then apply to the court using a different form or request known as a Petition for Sealing and Destruction of Arrest Records.
A hearing will occur where the petitioner has the burden of establishing that there was no reasonable cause for his or her arrest. The court may evaluate police reports, declarations, affidavits, and any other evidence which is material, relevant, and reliable. If a petitioner meets his or her burden, the burden then shifts to the prosecution which must prove that reasonable cause did exist for the arrest.
Some petitions are more complicated, and the judge needs to see additional information to help make a decision. Our office can assist you by researching your record, writing petitions, motions and declarations, filing petitions, motions and declarations in court, serving the petition on the prosecutorial agency, and appearing in court, if necessary to argue for the sealing.
For over forty years, the Dolan Law Offices have provided Californians with post-conviction services that clear their criminal record to further solidify their future as productive, law-abiding members of the Coachella Valley community. The attorneys at the Dolan Law Offices are experienced in helping California residents clear their criminal records. Call us today at (760) 775-3739 or find out more online here.
