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 when “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 the court. I had a case in Northern California where the request to seal was outside the two years statute of limitations. The court after extensive discussions both in chambers and open court weighed all evidence and allowed the waiver of the two-year limitation.
It is critical that the petition is filed timely since persuading a court there are good reasons for delay is always an uphill battle. 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 destroying an arrest record is different and another process must be followed pursuant to Government Code section 68152.
The motions are filed with the law enforcement agency and if necessary, the court. It requires an attorney that is familiar with this process since it is a complex matter. 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 prosecution 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.