If you are arrested but no charges are filed, you might wonder if it appears on your record. Even when no charges are filed or if the case against you is dismissed, arrests can still appear on many background checks. However, you may qualify to have your arrest record sealed under two specific sections of the Penal Code, 851.8 and 851.91.
The first option is to petition for a certificate of factual innocence under California Penal Code 851.8. This allows a person to ask the court to determine they did not commit the crime for which they were detained, arrested, or charged, but never convicted.
The petitioner must prove their factual innocence. If the court grants the petition, police agencies are required to seal and destroy all arrest records related to the individual.
However, the record is not destroyed immediately; it is sealed approximately ninety days after a successful petition and then destroyed three years after the arrest date. This process includes deleting arrest reports, booking details, mugshots, court records related to the arrest, and any evidence collected. Note that there is a two-year statute of limitations, so you must file this petition within two years of the initial arrest.
Sealing Your Arrest Record
Another option is to petition the court to seal your arrest record under California Penal Code section 851.91. Under PC 851.91, you may request to seal your arrest record if any of the following conditions apply:
- You were arrested, but no charges were filed.
- You were arrested and charged, but the charges were later dismissed.
- You completed diversion, and the charges were dismissed.
- You went to trial and were acquitted.
Once your arrest records are sealed, they won't be accessible to the public anymore. However, some government agencies, such as law enforcement, can still view these records despite their sealed status, ensuring your privacy is maintained.
Petitioning under section 851.91 is broader than under section 851.8, as it does not require proving “factual innocence.”
Section 851.8 pertains to individuals who are “factually innocent," meaning there is "no reasonable cause" to believe they committed the crime, and they should not have been arrested initially. In contrast, section 851.91 concerns individuals who are “legally not guilty," indicating they were never convicted of the crime.
California's Penal Code Section 851.93 allows for certain arrests that did not result in a conviction to be automatically sealed after a designated period, easing the need for individuals to petition the court. However, if the arrest remains visible in public records, you might need to file a petition under Penal Code 851.91 to have it sealed.
Key Takeaways
- Although an arrest without a conviction does not instantly tarnish your criminal record, it can still be visible in public records, possibly impacting areas like employment chances and personal reputation.
- If no charges were filed, you can petition the court to have your arrest record sealed, and in some cases, it will be sealed automatically, providing you with a sense of relief and peace of mind.
- Your criminal record includes not only convictions but also arrests made under suspicion of a crime. Therefore, even if you are not convicted, an arrest record can remain visible.
- Having an arrest record can harm your job prospects similarly to a conviction. Therefore, you should seek to have your arrest record sealed and destroyed under California Penal Code 851.8 PC.
- If you were arrested but no charges were filed, you can request to have that arrest sealed and destroyed three years after the arrest date.
- This process involves submitting a petition of factual innocence to the arresting police agency initially, and then to the court if the agency denies the petition.
- Often, the police agency will deny the petition, requiring you to resubmit it to the court later. If approved, it will be as if the arrest never happened. You won't need to disclose the arrest to employers or licensing boards, and police or prosecutors cannot use it against you.
Seeking the advice of a California criminal defense attorney can significantly increase your chances of having your petition of factual innocence approved. Their expertise can guide you through the complex legal process and ensure that your rights are protected.
Difference Between Criminal Records and Arrest Records
When you are arrested for any reason-regardless of guilt or innocence, a record of that arrest is created. Understanding the difference between a criminal record and an arrest record empowers you to navigate the legal system more effectively:
- A criminal record includes formal charges, convictions, and sentences adjudicated in court, reflecting confirmed legal violations. It is commonly accessed by employers, licensing agencies, and official bodies during background checks.
- In contrast, an arrest record simply documents that law enforcement took an individual into custody. Such a record can exist even if no charges were filed or if charges were dismissed. Unless it is sealed, an arrest record is stored in public databases accessible to anyone conducting a thorough search.
Typically, comprehensive background checks concentrate on criminal records, which means that arrests without convictions are often excluded. However, expanded searches, especially those conducted by government agencies or for sensitive positions, can reveal these arrest records.
What Does PC 851.91 Say?
California law provides a means to mitigate the impact of an unjust arrest record through a petition process under Penal Code Section 851.91. This law enables individuals to request that their arrest records be sealed, effectively as if the arrest never occurred.
PC 851.91 outlines a specific process for sealing arrest records. It states that "in any case where a person has been arrested, and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest.
A copy of the petition shall be served upon the prosecuting attorney of the county or city having jurisdiction over the offense. The law enforcement agency having jurisdiction over the offense, upon a determination that the person arrested is factually innocent, shall, with the concurrence of the prosecuting attorney, seal its arrest records and the petition for relief under this section for three years from the date of the arrest, and after that, destroy its arrest records and the petition.
(a) A person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest and related records sealed, as described in Section 851.92.
(1) For purposes of this section, an arrest did not result in a conviction if any of the following are true:
(A) The statute of limitations has run on every offense upon which the arrest was based, and the prosecuting attorney of the city or county that would have had jurisdiction over the offense or offenses upon which the arrest was based has not filed an accusatory pleading based on the arrest.
(B) The prosecuting attorney filed an accusatory pleading based on the arrest, but concerning all charges, one or more of the following have occurred:
(i) No conviction occurred, the charge has been dismissed, and the charge may not be refiled.
(ii) No conviction occurred, and the arrestee was acquitted of the charges.
(iii) A conviction occurred but has been vacated or reversed on appeal, all appellate remedies have been exhausted, and the charge may not be refiled."
Eligibility for Sealing an Arrest Record
An arrest record can be sealed if it did not lead to a conviction. This includes cases where the statute of limitations has expired without charges being filed, charges were filed but later dismissed, or the defendant was acquitted, as well as cases where a conviction was overturned on appeal with no possibility of recharging.
However, there are exceptions: individuals cannot have their arrest records sealed if they are still eligible for charges, if the arrest involved serious crimes like murder, unless they were acquitted or proven factually innocent, or if there was intentional evasion of justice, such as identity fraud or fleeing the jurisdiction.
Additionally, under PC 851.91, even if charges are filed, an arrest record may still be sealed if the charges are dismissed, the defendant is acquitted, or the individual completes a diversionary program that leads to dismissal.
Filing a Petition for Sealing an Arrest Record
Filing a petition for sealing in California involves several steps, such as the following:
- Gather all relevant documents, including the arrest report, court documents, and any evidence of dismissal or acquittal.
- Complete the Petition for Sealing (Form CR-409) by providing accurate and detailed arrest information.
- Submit the petition to the court where the arrest occurred. There may be filing fees associated with this process.
- In certain situations, a court hearing might be necessary. The petitioner needs to present their case, and the judge will determine whether to approve the petition based on the evidence provided.
The petition should also explain why sealing the arrest promotes justice, particularly if the arrest involved repeated cases of domestic violence, child abuse, or elder abuse, with 'pattern' meaning multiple arrests or convictions within three years.
Why You Need a Criminal Defense Attorney
Petitioning to clear your arrest record might seem simple, but it's actually quite complex. Your chances of success improve significantly if you hire our experienced California criminal defense attorneys.
We will verify that all documentation is accurate and complete, ensuring it accurately represents you during hearings. Additionally, we can present evidence and arguments to support your petition and address any challenges from prosecutors or law enforcement agencies. Reach out to the Hedding Law Firm for more details. We are based in Los Angeles, CA.
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