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Seal and destroy your adult arrest record (Calif. Penal Code 851.8 PC)

California Penal Code 851.8 PCBecause arrests and convictions can have a number of negative effects on someone's current and future quality of life, one of the most important things an attorney can do for a client is handle the disabilities that arise from an arrest or conviction. California has a number of mechanisms that provide relief for a person who has been cleared of wrongdoing or who has been successfully rehabilitated, including sealing and destroying an arrest from your adult arrest record.

The California law that dictates the process for getting rid of a specific arrest on your record is outlined in California Penal Code 851.8 PC.

How do I know what’s listed in my criminal record?

Typically, you can find out what’s listed in your criminal record by filling out a records request. In the city of Fresno, you can find this information by requesting the records from the Records Bureau with a valid ID. At the time this post was drafted, the fee to request criminal records was $30.

Am I eligible to get rid of an arrest from my record?

You can petition to have a specific arrest on your record destroyed if:

  1. You were arrested and no charges were filed by the prosecutor's office;
  2. You had your case dismissed after charges were filed by the prosecutor’s office;
  3. You were arrested, charges were filed by the prosecutor’s office, a jury acquitted you of the charged offenses, and the judge determines that you were factually innocent of the charge.

Note that this doesn’t cover what is classified as an infraction; only applies if you were not convicted of the charged offense; and only covers a specific arrest and not the entire arrest record.

Is it too late for me to file a petition to clear an arrest from my record?

According to the Penal Code, petitions to have an arrest cleared may be filed up to two years following the arrest filing date.

How do I get rid of an arrest from my record?

Step 1. If you were arrested and no charges were filed against you by the prosecutor’s office, you first need to file a petition with the law enforcement agency that arrested you. If you or your criminal defense attorney persuades the law enforcement agency having jurisdiction over the offense that you are factually innocent, the police will seal its arrest records and the petition for relief for three years from the date of the arrest and thereafter destroy its arrest records and the petition.

The law enforcement agency should respond with a decision on whether or not to grant the petition within 60 days. If they don’t respond within 60 days, the law sees the lack of response as a denial of the petition.

Step 2. If your petition with the law enforcement agency is denied, you (or your criminal lawyer) can petition the superior court that would have had heard the case.

In this step, the superior court holds a hearing where the district attorney and law enforcement (through the district attorney) present evidence supporting the arrest, and your criminal defense attorney presents evidence showing that there was no “reasonable cause” for the arrest, essentially showing that you are “factually innocent”. Any evidence that is “material, relevant, and reliable” may be used during this hearing, including declarations, affidavits, police reports, or any other evidence submitted by the parties.

If you had your case dismissed or were acquitted by a jury, a judge, on his or her own motion, may make a finding of factual innocence without the need for this separate hearing.

At the conclusion of arguments on the petition, the judge then makes a decision on whether you were factually innocent or not. This decision can be appealed by either side.

What will happen to my arrest once I’m found factually innocent?

If you are found factually innocent, and the district attorney does not challenge the decision, the records related to your arrest and the petition for factual innocence itself will be destroyed. According to the Penal Code, “the record shall be prepared again so that it appears that the arrest never occurred.”

Your finding of factual innocence is not admissible as evidence in any action, except in hearings before the California Victim Compensation and Government Claims Board.

However, if you or a co-defendant file a civil action against a police officer, sheriff’s deputy, law enforcement agency, or district attorney’s office (for example, for wrongful prosecution, wrongful arrest, or violation of your civil rights, etc.), no records will be destroyed until those civil actions are resolved. Any records sealed because you were found factually innocent will only be available to the court, jury, parties, counsel for the parties, and any other person authorized by the court.

What are the benefits of clearing my adult arrest record?

If you've applied for a job in the past, you know that one of the many questions a job application can ask is whether or not you've been arrested in the past. If you answer "yes" to these questions, an employer may immediately see that as a red flag and blacklist you as a potential hire, even if you were never convicted or even charged in connection with the arrest.

When you win a motion to seal and destroy your adult arrest record, your record will read as if the arrest didn't even happen. The police reports, fingerprints, booking photos, and all other records of the arrest get eliminated. Further, if an employer or someone else asks if you've ever been arrested, you can legally answer "no" without consequence.

Source: California Penal Code 851.8 PC

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