Petition to Seal and Destroy Adult Arrest Records for the Factually Innocent FAQ
Innocent people who were wrongfully arrested may request to have their arrest records sealed and destroyed. Penal Code § 851.8 allows for sealing and destruction of misdemeanor and felony arrest records for adults. (For questions about sealing and destroying juvenile arrest records, please contact our Juvenile Delinquency division at (858) 974-5757.)
You must show that you were factually innocent (which is different than not guilty). Factual innocence means that no reasonable cause exists to believe you committed the crime for which the arrest was made.
YOU MAY BE ELIGIBLE IF:
You can show that you were factually innocent AND
· You were arrested, but the prosecutor never filed criminal charges, or
· You were charged with a crime but had your case dismissed in court; or
· You were acquitted by a jury.
YOU ARE NOT ELIGIBLE IF:
· You were convicted (either by a guilty plea or by a trial).
A motion to seal and destroy arrest records is not a motion that applies to an entire criminal record. Motions must be made and granted specific to each arrest.
· Hide the arrest from the view of the members of the public, making it so they will no longer be able to see that you were arrested;
· Order the sealing and destruction of your arrest records, police reports, fingerprints, booking photos, and all records of the arrest, meaning they will not show up on a criminal background check; and
· Deem the arrest to never to have occurred. Meaning, when asked, you can honestly state that you’ve never been arrested for the crime.
Step 1: Petition the law enforcement agency for relief
If you were arrested, but the prosecutor never filed charges against you, your first step is to give a petition to the arresting law enforcement agency. You can find a copy of a petition by clicking Department of Justice form BCII – 8270. If you were charged with a crime and then had the charges dismissed or were acquitted, move on to Step 2.
You must also give a copy of this petition to the prosecuting agency of the county or city having jurisdiction over the offense. Note that misdemeanors committed in the City of San Diego are generally prosecuted by the City Attorney’s Office. Misdemeanors committed outside the City of San Diego and all felony offenses are generally prosecuted by the District Attorney’s Office.
The law enforcement agency can do one of three things with your petition:
(1) grant it, or
(2) deny it, or
(3) simply not respond.
If the law enforcement agency grants your request, in other words agrees that you were factually innocent, they will seal the arrest record for three years. Once that three year period has expired, they will destroy the records. They will notify you that they granted your request.
If the law enforcement agency denies your request to seal and destroy your arrest record, you move on to Step 2. They will notify you that they denied your request.
If the law enforcement agency simply does not respond to your request, you also move on to Step 2. BUT how long the law enforcement agency has to respond depends on how old your arrest is and what type of charges you were arrested for. You will need to know the “statute of limitations” for your charges (how long charges may be lawfully filed in court after an arrest). If the statute of limitations has passed, the law enforcement agency has 60 days to respond after you give them your petition. If the statute of limitations has not passed, the law enforcement agency has until 60 days after the statute of limitations has passed to respond.
Step 2: Petition the Court
If you were charged with a crime and then had the charges dismissed or you were acquitted, or you were never charged with a crime but cannot get relief from the law enforcement agency through the Step 1 described above, you file a Petition for Sealing and Destruction of Arrest Records (SDSC Form #CRM-221) with the court. This is a different form from the form in Step 1. You must serve a copy of the petition on the law enforcement agency and the prosecuting attorney of the county or city having jurisdiction over the offense (see above) at least 10 days prior to the hearing on the petition.
The court will schedule a hearing in which a judge will determine whether or not to seal your arrest record. You should bring to the hearing: (1) the previous petition to law enforcement, if any; (2) the denial of that petition, if any; and (3) proof of service on the appropriate agencies. At this hearing, the burden is on you to establish that there was no reasonable cause for your arrest. The court may evaluate police reports, declarations, affidavits, and any other evidence which is material, relevant and reliable. If you meet your burden, the burden then shifts to the prosecution. If they wish to challenge your motion, they must prove that reasonable cause did, in fact, exist.
You must petition within two years of your arrest or the filing of charges in court (whichever occurs later). But, a judge can agree to hear petitions that do not meet the two year time limit if you show “good cause” (a good reason) for not filing the petition earlier.
There is no court cost to file a petition to seal your arrest record.
If you are required to file a petition in court as explained in Step 2 above, yes there will be a court hearing.
There will not be a court hearing if your petition is granted as explained in Step 1.
The process typically takes about ninety days.
Not necessarily. You can follow the steps set out above without the help of an attorney. Yet, because the judge has great discretion in deciding whether to grant or deny your motion, and because the judge can deny your motion with prejudice, making it impossible to refile, it would be a good idea to talk to a lawyer.
While you do not necessarily need a lawyer, you may want one. You may hire a lawyer or our office may be able to help you at no cost. Our experienced attorneys will review your entire record and determine what relief you are eligible for. Some petitions are more complicated and the judge needs to see additional information to help make a decision. Our office can assist you by researching your record, writing petitions, motions and declarations, filing petitions, motions and declarations in court, serving the petition on the prosecutorial agency, and appearing in court, if necessary to argue for the sealing.
If you would like our office to assist you, fill out and submit the Fresh Start Program Request for Assistance form. You may e-mail, fax, mail, or drop off your request form.
Office of the Public Defender E-mail: Fresh.Start@sdcounty.ca.gov
Fresh Start Program Fax: (619) 338-4811 (Attn: Fresh Start Program)
451 A Street, Suite 900
San Diego, CA 92101
Please call the Office of the Primary Public Defender at (619) 338-4700 and ask to speak to someone from the Fresh Start Program. The Office of the Primary Public Defender will assist you even if you had an attorney from the Office of the Alternate Public Defender, a court appointed panel attorney, or you retained an attorney and now cannot afford to pay the attorney for assistance. You may also e-mail a question to Fresh.Start@sdcounty.ca.gov.