Here is what California Penal Code section 851.8 provides:
- 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.
- A copy of the petition shall be served upon the prosecuting attorney of the county or city having jurisdiction over the offense.
- 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.
- The law enforcement agency having jurisdiction over the offense shall notify the Department of Justice, and any law enforcement agency that arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this subdivision, of the sealing of the arrest records and the reason therefor.
- The Department of Justice and any law enforcement agency so notified shall forthwith seal their records of the arrest and the notice of sealing for three years from the date of the arrest, and thereafter destroy their records of the arrest and the notice of sealing.
You Must Be Innocent to Seal an Arrest Record
To seal your arrest record, you must prove that you are factually innocent. Factually innocent means there is no reasonable cause or evidence that a crime took place. You may be eligible to have your arrest record sealed and destroyed if you meet the following criteria:
- You must show that you are factually innocent; and
- The prosecutor did not file charges against you after the arrest; or
- You were charged with a crime but the court dismissed your case; or
- A jury found you not guilty.
If the court or a jury found you guilty or you pled guilty, you cannot seal your arrest record. You must file a separate motion for each arrest record you would like sealed. If the court grants the petition, the public will no longer have access to the record making it as though the arrest never took place. All files of the arrest will be sealed (fingerprints, police booking documents, mug shot, etc.).
Steps to Seal Your Arrest Record
To begin the process, you will have to petition the law enforcement agency that arrested you. The agency may grant, deny, or not respond to your petition. If the agency approves your request, the court can seal your arrest record. If the agency denies or fails to respond to your request, you can petition the court for relief. In order to seal an arrest record, you will have to serve the law enforcement agency with your petition. There may be a court hearing in which both parties can argue their case. It usually takes about 90 days to receive a decision from the court from the initial filing of the petition to seal your arrest record
Contact A People’s Choice for more information on how to seal your arrest record. Contrary to popular belief, you do not need to hire an attorney to seal an arrest record. Call us today at 800-747-2780.
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