Under California law, a person may only be able to seal and destroy an arrest record if
1) he was arrested and not convicted and
2) must be factually innocent of the criminal charges.
The petitioner in such cases asks the court to make a finding that the defendant is factually innocent of the charges for which he is arrested.
California Penal Code 851.8.(a) states “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 thereafter destroy its arrest records and the petition.”
California Penal Code 851.8(c) states “In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made.”
The difference between the two code sections is that under Penal Code 851.8(a) there is a 3 year statute where the accused must file the petition to seal and destroy within 3 years from the arrest date. However, there is no limit on when this petition can be filed under Penal Code 851.8(c). In cases where there is good cause for why an individual may have waited longer than 3 years to file the petition, the person may still succeed despite the lapse of statute. In plain English, Penal Code 851.8(a) refers to a situation where the person is arrested and no charges are filed in any criminal court but the case is dismissed prior to the filing of any such charges. On the other hand, Penal Code 851.8(c) refers to a situation where a person is arrested, charges are filed and the person is either acquitted of those charges at trial or after the process has begun, the prosecutor dismisses the charges. If the petition is granted, all state and federal law enforcement agencies are required to seal and destroy all records pertaining to your arrest.
At Ginny Walia Law Offices, we have handled numerous petitions to seal and destroy arrest records. We have successfully handled petitions that were filed outside of the 3 year statute for good cause. Are old criminal charges still haunting you when you apply for a job, a loan or any other type of benefit where a background check is conducted? Call California Criminal Defense Attorneys at Ginny Walia Law Offices to discuss whether you can seal and destroy your criminal record forever!!!
