In California, it's not uncommon for someone to be arrested and then released without charges being filed. Perhaps you were arrested on suspicion of a crime, but there was not sufficient evidence for the police to hold you. Perhaps the District Attorney decided not to pursue formal criminal charged.
Whatever the case, it raises an important question: Will the arrest appear on your record even though you were never charged with a crime?
While an arrest without a conviction does not automatically tarnish your criminal record, it can still appear in public records, potentially affecting various aspects of your life, such as employment opportunities and personal reputation. This underscores the urgency of taking action to clear your record.
If no charges were filed, you have the option of petitioning the court to have your arrest record sealed, and in some cases, the record will be sealed automatically. Your criminal record will include not only instances in which you were convicted of a crime, but also those in which you were arrested under suspicion of a crime.
Thus, if an arrest does not result in a conviction, a record of that arrest can still appear. Having an arrest record can negatively affect your job prospects in the same way as a conviction.
Sealing and Destroying an Arrest Record
You should seek to have your arrest record sealed and destroyed under California Penal Code Section 851.87 PC. This should motivate you to take action and clear your record, ensuring it doesn't hinder your future opportunities and instilling a sense of determination within you.
If police arrested you but no charges were filed following the arrest, you can seek to have that arrest sealed and destroyed three years after the date of arrest.
This can be accomplished by submitting a petition of factual innocence to the arresting police agency first and then to the court if the arresting agency denies the petition.
The petition should include a detailed account of the arrest, any evidence supporting your innocence, and a request for the record to be sealed. Often, the arresting police agency will deny the petition, which means you will need to submit the petition to the court later.
If granted, it will be as if the arrest never occurred. You will no longer need to disclose the arrest to employers or licensing boards, and the police or prosecution cannot use it against you.
This brings a profound sense of relief and freedom, allowing you to move forward without the burden of an unjust arrest record, giving you hope for a brighter future.
It's crucial to have the legal expertise of a skilled criminal defense attorney to ensure you have the best chance of getting a petition of factual innocence granted. This professional guidance will not only reassure you but also give you the confidence that you are taking the right steps to clear your record, providing a sense of security in your actions.
Difference Between Criminal and Arrest Records
When you are arrested, regardless of your guilt or innocence, a record is created of that arrest. However, to understand how that record might affect you, let's review the differences between a criminal record and an arrest record.
- A criminal record includes formal charges, convictions, and sentences adjudicated in court. It includes confirmed legal violations and is typically accessed by employers, licensing agencies, and other official bodies during background checks.
- An arrest record is a document that law enforcement uses to take an individual into custody. This record can exist even if no charges were filed or were eventually dismissed. Unless and until the record is sealed, an arrest record is maintained in public databases accessible to anyone conducting a thorough search.
Typically, comprehensive background checks focus on criminal records, meaning arrests without convictions are typically not included. However, specific expanded searches, especially those conducted by government entities or for sensitive positions such as law enforcement, teaching, or healthcare, can reveal these arrest records.
How to Seal Arrest Records in California
To mitigate the impact of an unjust arrest record, California law provides a mechanism for petitioning to seal such records under Penal Code Section 851.91. This legal provision allows individuals to request that their arrest records be sealed, effectively treating the arrest as if it never occurred.
PC 851.91 says, "(a) 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.
Sealing the record means it is not accessible to the public, while destroying it means it is physically removed from the agency's records. This process ensures that the arrest is effectively treated as if it never occurred, providing relief and freedom to the individual.
(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 has 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."
What are the Eligibility Requirements?
An arrest record can be sealed if it did not result in a conviction, which includes the following scenarios:
- The statute of limitations expired without charges being filed.
- Charges were filed but subsequently dismissed or acquitted.
- A conviction was overturned on appeal with no possibility of refiling the charge.
Individuals are not eligible to have their arrest records sealed if they can still be charged with the offense, the arrest involved serious crimes such as murder, unless they have been acquitted or found factually innocent, or there was intentional evasion of justice, such as identity fraud or fleeing the jurisdiction.
It should also be noted that PC 851.91 allows that even if charges were filed, an arrest record can still be sealed if the charges were ultimately dismissed or acquitted, or if you completed a diversionary program that resulted in a dismissal of the charges.
California's Penal Code Section 851.93 stipulates that certain arrests that did not result in a conviction may be automatically sealed after a specified period. This automatic process reduces the burden on individuals to petition the court actively. Yet, if an arrest still appears on public records, you may need to file a petition to ensure it is sealed.
How to File a Petition
Filing a petition for sealing in California involves several steps, such as the following:
- Collect all relevant documents, including the arrest report, court documents, and any evidence of dismissal or acquittal.
- Fill out the Petition for Sealing (Form CR-409) with accurate and detailed information about the arrest.
- Submit the petition to the court where the arrest occurred. There may be filing fees associated with this process.
- In some cases, a court hearing may be required. The petitioner must present their case, and the judge will decide whether to grant the petition based on the evidence provided.
The petition must also articulate why sealing the arrest would serve justice, especially if the arrest involved repeated patterns of domestic violence, child abuse, or elder abuse, where a pattern is defined as multiple arrests or convictions within three years.
Why Do You Need a Defense Attorney?
Petitioning to have your arrest record cleared may seem straightforward, but it's more complicated. Your chances of success increase greatly if you hire our California criminal defense attorneys to represent you in this matter.
We can ensure that all documentation is accurate and complete, and that you are represented effectively during hearings. We will present evidence and arguments in support of your petition.
We can navigate potential challenges from the prosecuting attorney or the arresting agency. For more information, contact our criminal defense law firm, Eisner Gorin LLP, located in Los Angeles, CA.
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