Record Sealing

If you were ever arrested in California, even if you were not guilty, you will have an arrest record for the rest of your life unless you get that record sealed. 

Being wrongfully arrested would be extremely traumatic but imagine then having to deal with the damaging effects of having to disclose it on a job application or having it appear on a background check for a perspective job.  Obtaining employment is difficult enough.   Having to disclose an arrest or wonder if a potential employer has discovered may make the difference in getting the job or not.                                                

Law enforcement are agencies that make an arrest and sometimes do so wrongfully and without all of the proper facts before them.  However the District attorney or city prosecutor is the filing agency and upon reviewing an officer’s report, will decide what, if any, charges will be filed against an individual.  If their decision is to decline to file charges then you are stuck with an arrest on your record.   Even if the arresting agency releases you with a “detention only” letter, the arrest stays on your record. 

California law allows those who have been wrongfully arrested a chance to have their records destroyed; whether an accusatory pleading has been filed or not, so long as they can prove that they are ‘factually innocent.’

California has few statutory remedies to seal previous arrests.  Relief comes under California Penal Code § 851.8, a Petition for Factual Innocence

Pursuant to California Penal Code 851.8.  (a) 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.                                       

Subdivision (b) requires that if, after receipt by both the law enforcement agency and the

prosecuting attorney of a petition for relief under subdivision (a), ………In any case where the petition of an arrestee to the law enforcement agency to have an arrest record destroyed is denied, petition may be made to the superior court that would have had territorial jurisdiction over the matter.

If charges were filed, according to subdivision (c), 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.

The statute itself declares that when a Petition for Factual Innocence is granted, “the arrest shall be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence.”

The process of Filing a Petition to Seal and Destroy an Arrest Record can be lengthy and involved.  It requires not only a written motion to be served on all the pertinent parties but also a formal hearing in front of a judge requiring declarations and possible testimony.  Having an experienced attorney in this area can be a critical asset to your chance of success.  


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