Articles 17 November 2009
Many people have the misconception that if their case was never filed by the prosecutorial agency or if their case was dismissed, the arrest records no longer exist. In fact, some employers can discover prior criminal conduct by simply searching for your name at any courthouse or online government sites. Most criminal cases are easily accessible because they are deemed public information. There is also a whole industry devoted to developing creative ways to obtain and sell private or derogatory information about individuals. Some of these buyers are insurance companies, banks and credit lenders, potential employers, landlords etc. We all know a criminal record could prove to be a nightmare but even a mere arrest is subject to being disclosed. The record of the arrest such as the police report, booking documents such as fingerprints and photo, case disposition, still exists unless you move to have your records sealed. The entire paper trail of your arrest, will be sealed and destroyed if you file a request with the arresting agency.
Sealing your arrest record can be accomplished if you were arrested and either: no complaint has been or will be filed; the complaint was dismissed; or you are factually innocent. Factual innocence is legally defined as “no reasonable cause exists to believe that the person committed the offense for which the arrest was made. A person is not considered to be factually innocent when there is a dismissal in the interest of justice or an acquittal due to insufficient evidence or lack of prosecution.”
The process begins with filing a request to seal the arrest record with the arresting agency. If the arresting agency denies the petition, then a motion may be filed with the Superior Court in the county where the arrest occurred and the matter is set for a hearing before a judge.
In California, the Petition to Seal and Destroy Arrest Records is governed by Penal Code, Section 851.8. A petition shall be filed with the court. To qualify, the following must be present: (1) factually innocent of the crime you were arrested; (2) must be an adult at the time arrested or detained; (3) the arrest or detention cannot be an infraction and (4) not convicted of any other crime connected to the arrest or detention.
You must file this petition up to two years following the date of the arrest or the date the complaint was filed. Time restrictions can only be waived upon a showing of good cause by you, the Petitioner. The Petitioner could request from the court to have the arrest record sealed for three years and then subsequently destroyed. If the court grants the petition, the arrest or other proceeding is deemed not to have occurred. It must be pointed out, however, that an arrest record is different from the court record. Destruction of the court record is controlled by the Government Code section 68152.
The motions filed with the law enforcement agency and if necessary, the court requires an attorney that is familiar with this process. If a petition to the court is filed, a hearing will be set and it is the responsibility of the Petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense. The Prosecuting Attorney has a right to respond to the petition and the request for a finding of a factual innocence. Like in all criminal proceedings, a skilled negotiator and an experienced courtroom litigator is a must.