Sealing Adult Arrest Records FAQ

  What is a Petition to Seal and Destroy Adult Arrest Records?

  Who is eligible for the sealing and destruction of arrest records?

  How much time does the prosecutor have to file Charges?

  What will a petition to seal arrest and related court records do? (Cal. Pen Code §851.92)

  What won’t a petition to seal arrest and related court records do?

  I want to apply for a state or local license.  What can I do about my arrest record?

  How do I get my arrest and related court records sealed? 

  How do I know if I need to file a declaration showing that it is in the interest of justice that the judge seal my arrest record?

  Is there a deadline for petitioning to seal my arrest and related court record?

  How much does it cost to petition to seal my arrest and related court record?

  Will there be a court hearing?

  How long does it take to get a decision from the court after the Petition is filed?

  If a judge orders my record sealed, how long will it take to actually have the record sealed?  

  What is a “Certificate of Detention” and why should I get that instead of sealing my arrest records?  

  Do I need a lawyer to file to seal my arrest record?

  What if I want a lawyer to assist me?

  If I have questions, who can I contact for help?

 

What is a Petition to Seal Adult Arrest Records?

A person who has suffered an arrest that did not result in a conviction may petition to have their arrest and related court records sealed.  Starting January 1, 2018, California Penal Code §851.91 allows for sealing of misdemeanor and felony arrest records for adults.  This is a different process than sealing arrest records for people who are factually innocent. (Cal. Pen. Code § 851.8)

(For questions about sealing and destroying juvenile arrest records, please contact our Juvenile Delinquency division at (858) 974-5757.)

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Who is eligible for the sealing of arrest and related court records?

        YOU MAY BE ELIGIBLE IF:

       ·  You were arrested, but the prosecutor never filed criminal charges within the time they were required to file charges (click here to find out How much time does the prosecutor have to file charges?); or

       ·  You were charged with a crime but the entire case was dismissed in court and the case cannot be refiled; or

       ·  You were found not guilty of all charges; or

       ·  You were convicted, but your conviction was overturned on appeal and the case cannot be refiled.

 

         YOU ARE NOT ELIGIBLE IF:

       ·  You were convicted (either by a guilty plea or by a trial); or

       ·  You could still be charged because the prosecutor still has time to decide to file charges against you (click here to find out How much time does the prosecutor have to file charges?); or

       · You intentionally evaded law enforcement efforts to prosecute you.

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How much time does the prosecutor have to file Charges?

The amount of time the prosecutor has to file charges is called the Statute of Limitations (Cal. Pen Code §§ 799-805).  The Statute of Limitations is different for different crimes.  Below are the general rules, but be aware there are MANY EXCEPTIONS to these general rules! 

·         Misdemeanor Cases: Prosecutors must file charges for most, but not all, misdemeanor cases within one year from the date of the offense. 

 

·         Felony Cases: For felony cases, the Statute of Limitations often depends on the maximum punishment for the charge.  Prosecutors must generally file felony cases within three years if the maximum punishment for the charge is less than eight years.  Prosecutors must generally file charges within six years if the maximum punishment for the charge is eight or more years.  Some felony crimes do not have any Statute of Limitations, meaning prosecutors can file at any time.

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What will a petition to seal arrest and related court records do? (Cal. Pen Code §851.92)

If the judge grants your petition to seal your arrest and related court records the order will:

·    Hide the arrest from the public, making it so the public will no longer be able to see you were arrested;

·    Order the sealing of your arrest records, police reports, and any related court records;

·    Order that the sealed arrest records, police reports, and any related court records not be disclosed to anyone except for criminal justice agencies; and

·    Deem the arrest to never to have occurred. Meaning, when asked, you can honestly state you’ve never been arrested for the crime EXCEPT if asked directly on an application for:

                ·    Public office; or

                ·    Employment as a peace officer; or

                ·    A license by any state or local agency; or

                ·    Contracting with the California State Lottery Commission.

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What won’t a petition to seal arrest and related court records do?

If a judge grants your petition to seal your arrest record it will not:

·       Let you deny the arrest if specifically asked about arrests on an application for:

        o    Public office

        o    Employment as a peace officer

        o    A license by any state or local agency

        o    Contracting with the California State Lottery Commission

·       Stop a prosecutor from using the information against you in court if you get in trouble in the future

·       Keep the records from being viewed and used by any criminal justice agency including any court, peace officer, prosecutor, probation or parole officer or correctional officer in the same way allowed if the records had not been sealed

·       Restore gun rights.

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I want to apply for a state or local license.  What can I do about my arrest record?

You may want to apply for a “Certificate of Detention” instead.  Click here for more information.

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How do I get my arrest and related court records sealed?

You need to file a petition in the court where the arrest or prosecution occurred.  The petition must have:

          ·    Your name and birth date

          ·    The arrest date for the arrest you want sealed

          ·    The city and county where the arrest took place

          ·    The law enforcement agency that made the arrest

          ·    Any other information identifying the arrest such as the case number for the police report or the court case number.

          ·    A list of the charges you were arrested for or charged with

          ·    A statement of whether you are entitled as a matter of right to have your record sealed or if you are petitioning in the interests of justice.

                o  If you are requesting to have your arrest sealed in the interests of justice you must explain in a declaration how the interests of justice would be served by granting the petition.  Attach your declaration and any supporting documents to your petition.

 

When you file a petition, the court may set a hearing date.

You must serve a copy of the petition on the law enforcement agency and the prosecuting agency of the county or city having jurisdiction over the offense at least 15 days before the hearing on the petition.

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How do I know if I need to file a declaration showing that it is in the interest of justice that the judge seal my arrest record?

Most people are entitled to have their arrest record sealed as a matter of right.  What that means is as long as you meet the basic eligibility requirements and you file the petition correctly, the judge must grant the petition to seal your record.  You do not need to show that it is in the interest of justice.  You do not need to file a declaration.

In some very limited cases, the judge has discretion to deny your request to seal your arrest record.  In these cases you must explain why it would be in the interest of justice to seal your arrest record.  You explain this in a declaration signed under penalty of perjury.  The only cases where the judge has discretion to deny your request to seal your arrest records are when:

            You have a pattern of domestic violence arrests and/or convictions; or

            You have a pattern of child abuse arrests and/or convictions; or

            You have a pattern of elder abuse arrests and/or convictions.

           

A pattern means you have two or more convictions, or five or more arrests, for separate offenses happening on different occasions within three years from another conviction or arrest.

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Is there a deadline for petitioning to seal my arrest and related court record?

No.  You may file a petition any time after you are eligible to seal your arrest record.

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How much does it cost to petition to seal my arrest and related court record?

There is no court cost to file a petition to seal your arrest record.

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Will there be a court hearing?

There may be a court hearing.  This is a brand new law.   The courts will need to develop procedures for the new law.

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How long does it take to get a decision from the court after the Petition is filed?

We do not know, but it will be at least fifteen days and it could take significantly longer, depending on court resources and the volume of petitions.

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If a judge orders my record sealed, how long will it take to actually have the record sealed?

The court must send the paperwork sealing your arrest record to the law enforcement agencies and the Department of Justice within 30 days of making the order.  Some agencies may take longer than others to seal the record once they receive the paperwork. 

About ninety days after the judge signs the order, you may want to order a copy of your Department of Justice (DOJ) Criminal History Report to make sure it has been corrected.   For instructions on how to order your DOJ report click here.

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What is a “Certificate of Detention” and why should I get that instead of sealing my arrest records?

Sometimes when people come into contact with the police and even if they are initially taken to jail, it technically does not count as an arrest.  Instead it is called a detention.  This is commonly referred to as a “PC849 release”.   Your arrest is only a detention if you receive a “Certificate of Detention”.  It is better to have a detention than an arrest on your record.  The difference between an arrest and a detention is important because some job and license applications ask you to disclose arrests.  They cannot ask you to disclose detentions.  

An arrest is only a detention if:

          ·    You were arrested and released and no court case was filed charging you with an offense (Cal. Pen. Code §849.5); or

          ·    You were arrested without a warrant, but released because the officer decided there were insufficient grounds for making a criminal complaint against you (Cal. Pen. Code §849(b)(1)); or

          ·     You were arrested without a warrant only for being under the influence of a controlled substance, and you were taken for treatment and no further proceedings were desired (Cal. Pen. Code §849(b)(3)); or

          ·     You were arrested without a warrant and subsequently delivered to a hospital or other urgent care facility for mental health evaluation and treatment, and no further proceedings were desired. (Cal. Pen. Code §849(b)(5)).

The law says that if an arrest should only be deemed a detention any reference to an arrest must be deleted from the arresting agency’s records and the Department of Justice record. (Cal. Pen. Code §851.6)   Again, the reason this is important is that you do not need to disclose detentions to anyone.  You may be required to disclose arrests. 

You should consider trying to have an arrest declared a detention rather than seeking to seal the arrest record particularly if you are applying for:

          o    Public office

          o    Employment as a peace officer

          o    A license by any state or local agency

          o    Contracting with the California State Lottery Commission

You may have been given a Certificate of Detention when you were released from custody.  If you were given a Certificate of Detention when you were released from custody, you do not need to do anything and you do not need to disclose the detention to anyone.

If you were not given a Certificate of Detention when you were released from custody, you may be able to get a Certificate of Detention by submitting a letter to the law enforcement agency that arrested you explaining why your arrest should be deemed a detention.  We recommend having a lawyer, either one you hire or one from our office, assist you with this process.

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Do I need a lawyer to file to seal my arrest record?

Not necessarily.  You can fill out the petition and file it on your own.  (Court forms should be available after January 1, 2018.)  But because this is a brand new law, it would be a good idea to talk to a lawyer.

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What if I want a lawyer to assist me?

While you do not necessarily need a lawyer, you may want one. You may hire a lawyer or our office is 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)

450 B Street, Suite 900                              

San Diego, CA 92101  

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If I have questions, who can I contact for help?

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 a retained attorney who you can no longer afford to pay.  You may also e-mail a question to Fresh.Start@sdcounty.ca.gov.  

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