sealing and destroying arrest records
As you have been learning in the previous posts on this topic, there are many benefits to cleaning up your California criminal history record. Let’s now learn about sealing and destroying arrest records.
There are several different circumstances in which records of your arrest or detention may be completely sealed and destroyed. The various scenarios are laid out below.
If you were arrested and no charges were ever filed, you may petition the arresting agency and the district attorney to have your records sealed and destroyed. They will grant relief if you can show you are factually innocent of the crime charged. Factual innocence exists when no reasonable cause existed to believe that you committed the offense. If the law enforcement agency and district attorney fail to timely respond (usually 60 days), the petition is deemed denied. (Penal Code § 851.8(a)-(b).)
If your petition to law enforcement is denied, you can petition the superior court in the county of your arrest to seal and destroy your records. You must prove to the superior court that you are factually innocent of the crime charged. This is done by providing the court with declaration, affidavits, police reports and other relevant evidence showing that no reasonable cause existed to believe that you committed the offense. (Penal Code § 851.8(b).) The court will not grant relief if they “believe or conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty of the crimes charged.” (People v. Adair (2003) 29 Cal.4th 895.)
If you were arrested, charges were filed, but no conviction occurred, you may directly petition the superior court to seal and destroy your records. The court must also find you factually innocent of the crime in order to grant relief in this scenario. (Penal Code § 851.8(c).)
The court may also order your arrest record sealed and destroyed in cases where dismissal occurs and the prosecuting attorney concurs with the court’s order. (Penal Code § 851.8(d).) Finally, a judge presiding over a jury trial in which an acquittal occurs may find the defendant factually innocent of the charges and order the records sealed and destroyed on their own. (Penal Code § 851.8(e).)
Having your records ordered sealed and destroyed ensures that all law enforcement agencies and the courts will seal you records and, after three years, destroy them. Once ordered sealed and destroyed, you need not indicate that you were ever arrested of the offenses. (Penal Code § 851.8(f).)
A similar record sealing process exists for substance use or drug possession offenses. Court may order your drug arrest record sealed, but not destroyed, if the following elements are met: (1) you completed statutory drug diversion or DEJ program, and (2) the offense for which diversion or DEJ was granted is listed in Penal Code § 1000. (Penal Code § 851.90(a)(1).) Once an arrest record is ordered sealed and destroyed, you need not indicate that you were ever arrested of the offense, unless you are applying for a peace officer position in which case you must disclose the arrest . (Penal Code § 851.90(a)(6), (b).)
Juvenile Record Sealing
Your indiscretions as a juvenile don’t have to follow you as an adult. In many cases, you can seal your juvenile records when you turn 18. (Penal Code § 851.7.) To do so, you must petition the juvenile court in the county you were convicted to have your juvenile record sealed. (Welfare & Institutions Code § 781(a).) Once sealed, your juvenile offenses are inaccessible and they will be destroyed five years from the date sealed. If you do not petition to have your juvenile record sealed, they will remain on your record until you turn 38; at which time they will be destroyed. (Welfare and Institutions Code § 781(d).)
A similar procedure under Welfare and Institutions code § 389 is applicable if you were deemed a dependent of the court as a juvenile.
Note that some serious violent felonies under Penal Code § 707(b) are not be eligible to be sealed, will not be automatically destroyed and can be used as strikes against you in the future.
If you have any questions about your personal situation, please contact me for a free consultation.
~ Dan Koukol, Criminal Defense Attorney
Tags: arrest records, attorney, criminal, defense, federal, Felony, misdemeanor