Sealing and Destroying Arrest Records
Being arrested can be a traumatic experience. Whether charges aren't brought against you, or you are tried and found not guilty, the emotional impact of being wrongly accused can haunt you for years. The fact your arrest is a matter of public record can also complicate your life, especially when someone runs a background check on you for a new job or any other reason.
The good news is, California law provides a way to have the record of an innocent person's arrest sealed and destroyed. Sealing and destroying an arrest record makes it as though the arrest never happened.
Why is sealing and destroying arrest records so important? Each year, thousands of individuals are arrested and/or detained for a crime they didn’t commit. In some cases, this is discovered quickly. In many others, a person isn’t cleared until their case hits the courts and a judge or jury determines that they are not to be held responsible for a particular crime.
Nevertheless, when someone is arrested or detained – regardless of guilt – the arrest, detention, and trial becomes a matter of public record. In other words, with a little work, anyone can find out about it, even if you were found to be not guilty. For the average Joe, that record can have a drastic impact on their life. For example, how many employers might pass on hiring someone who has an arrest record which is discovered during a routine background check?
But the good news is that in California, individuals who are found factually innocent of a crime with which they were accused can have those records sealed and eventually destroyed.
What are the qualifications for sealing and destroying arrest records?
California Penal Code 851.8 defines who can apply to have their records sealed. If you fit into any of the following three categories, you may be eligible:
You were detained or arrested but no charges were formally filed against you.
Charges were filed against you but were later dismissed.
You were arrested, charges were filed, but you were then acquitted (found not guilty) at trial and a judge ruled you factually innocent of all charges. Factually innocent means you have been exonerated – or completely cleared – of the crime. A verdict of not guilty as the result of substantial doubt raised during the trial is not the equivalent of factual innocence.
Note that all of the above conditions refer only to a specific arrest, not a person’s entire arrest record. If you were arrested more than once and want to have all of your arrest records sealed, you must qualify and apply to have each separate arrest record sealed and destroyed.
How long do I have to do this?
You may file an application for sealing the record of an arrest or detention within two years of that arrest or detention. If that two-year mark has passed, a judge is not required to hear your case but may consider it based on good cause.
How do I get started?
The process for requesting the sealing of your records involves different steps depending on the circumstances.
If you were arrested but no charges were filed, the first step is to contact the law enforcement agency involved in your case. For example, if you were arrested by the Long Beach Police Department, you would begin by appealing to them. Once you petition that particular agency, they have the right to decide in favor of, or against your sealing request. If they agree that you are factually innocent, they will seal the arrest record in question for three years. After that period of time has passed, they will destroy the record. If the law enforcement agency does not find in your favor or does not respond within 60 days of your petition, you will need to move on to a different tactic – appealing to a court with jurisdiction.
However, if the record you are interested in sealing is connected to a case during which you were acquitted by a jury, or if your case was dismissed after charges were filed, then you must skip the police department and proceed directly to petitioning the court. Once that is done, if the judge believes you are factually innocent, he will order the records sealed and eventually destroyed.
Do I need a lawyer to take care of sealing and destroying my arrest records?
A experienced attorney will make the process go more smoothly. The applicant carries a burden to prove their innocence. A lawyer can help by thoroughly researching your case and making sure you’ve completed all the necessary paperwork in a timely and accurate manner. The police and/or the judge have the right to review police reports and other evidence that may sway them towards making a decision that’s not in your favor. If you hired an attorney to help you navigate this process, you’ll have an expert advocate who will help persuade the law enforcement agency or judge that you were wrongly accused. This task can be rather intimidating for an average person with no legal training.
Who can see my records after they’re sealed?
In short, the answer is no one. If your records are ordered legally sealed, you can accurately say that you have never been arrested for a crime. This means if an employer asks that question, there is nothing to which you must admit. As far as the courts are concerned, you do not have an arrest record after sealing the record of it.
Not only can this help you with securing a job but it may also make it easier to find a place to live, or even to get accepted to college or other educational programs. It’s well worth the time it takes to fill out the paperwork, and the cost of hiring an attorney will seem minimal compared to the feeling of freedom and relief when that arrest record disappears from your life.