In California, innocent people wrongfully arrested have a unique opportunity
to have their arrest records sealed and destroyed by
Petition for Factual Innocence, according to California Penal Code section 851.8. This petition must
be filed no later than two years from the date of arrest or the filing
of a criminal complaint, whichever is the most recent. If you succeed in
sealing your arrest records, you can legally answer “no” whenever asked by an employer
if you were previously arrested.
Eligibility to Seal Your Arrest Records
This unique opportunity is available only to people in the following circumstances:
- You were arrested, but no criminal charges were filed;
- You were charged with a crime, but the charges were later dropped;
- You were charged, went to trial, and were found “not guilty”
by a jury.
The important factor in being eligible for sealing your arrest records
is that you
cannot have a conviction for that arrest. If you have a conviction you are not
eligible. The appropriate remedy for someone with a conviction is an Expungment
under Penal Code section 1203.4. See California Expungments.
The Process for Sealing Your Arrest Records
The first step in sealing your arrest record is to file the petition with
the arresting law enforcement agency. If your attorney can convince the
agency you were factually innocent (i.e. actually innocent), then the
arresting agency will seal your arrest records for three years. After
the three years, they will destroy your records.
If the arresting agency denies your petition or fails to respond in 60
days, we go to the second step, filing your petition with the Superior
Court which had jurisdiction over the matter. A copy of the petition should
also be served on the prosecutor's office at least 10 days before
At the hearing, the burden is on the petitioner (person filing the petition)
to prove that he or she is factually innocent of the crime. Factually
innocent means actual innocence. In other words, the petitioner must show
there is no reasonable cause to believe the petitioner committed the crime.
The petitioner may introduce any evidence that supports their innocence
including affidavits, police reports and other evidence that is relevant
and reliable to the hearing. The prosecutor can challenge the petitioner's
claims by introducing evidence, such as the arrest report and the arresting
officer's testimony to disprove the petitioner's claims. After
hearing both sides, the judge will give an opinion and grant or deny the
petition for Factual Innocence.
If the petition is granted, the judge will issue a court order directing
the police department, prosecutor's office and the Department of Justice
to seal and destroy the arrest records and all related documents, leaving
no trace of the arrest. This means that all prospective employers, or
anybody for that matter, will never see or know of your arrest.
Our Los Angeles Criminal Defense Lawyers Can Help
Having a criminal record can not only impact your life but it can affect
your employment and career opportunities. If you were wrongfully arrested
and you want to remove that arrest from your background consult with an
Los Angeles criminal defense attorney. The criminal defense lawyers at Stephen G. Rodriguez & Partners have
successfully handled and resolved Factual Innocence petitions for their
clients. They bring over 75 years of combined criminal law experience
to the table and will put that experience to work for you. Don't let
a wrongful arrest haunt you. A successful petition for Factual Innocence
allows you to make a fresh start.
Call us to discuss your legal situation and learn if you are eligible to
Petition for Factual Innocence.