How Do I Seal My Arrest Record in California?
Below is a discussion of the general method of sealing an adult arrest record. However, sealing a record is a complicated and sometimes lengthy process. It is very important that you consult with an attorney to work with you and walk you through the steps needed to ensure that you have the best chance of having your arrest record sealed. Not only can an attorney assist you in court during the hearing to seal, but the attorney can also help you gather the evidence you will need to present the strongest case that your records deserve to be sealed. The attorneys of Theta Law Firm can help you accomplish this.
Are you Eligible to Seal Your Record?
California Labor Code Section 432.7 spells out that an employer cannot ask you when you are applying for a job for information about an arrest or a detention that did not end up with a conviction (unless the case is still pending). An employer cannot even ask you about participation in a diversion program or look for past arrest records that did not result in a conviction.
However, we all know that just because employers are not supposed to look for arrest record information, often times they do anyway. It is also very likely that you as the potential employee will have no idea that an employer violated the Labor Code and searched for this information. So, even though you were not convicted or sometimes not even charges, a record of detention or arrest could negatively impact your future. To make sure that this does not happen, you can seal your record.
Any adult in California may petition to have their arrest or detention records sealed if they have been arrested or detained, but not convicted and can prove that they are factually innocent of the crime for which they were held. The crime for which the person was arrested must be a misdemeanor or felony and not an infraction[1].
What do I do to Seal my Record?
If you were arrested or detained, but charges were never filed:
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1. If you were arrested or detained, but charges were never filed against you, you need to petition the law enforcement agency that arrested or detained you to seal the record. A copy of the petition must also be served on the district attorney in the county where you were arrested or detained.[2]
2. If the district attorney or the law enforcement agency do not respond in sixty days after receiving the petition - it is deemed denied.
3. If the petition is denied at this stage, then you are able to petition the Superior Court that would have jurisdiction over the matter.
4. A copy of the petition is served again on the law enforcement agency involved in the detention or arrest and the prosecuting attorney having jurisdiction over the matter ten days before the date of the hearing.
5. During the hearing the initial burden is on the person seeking to seal to show that no reasonable cause exists to believe that he or she committed the offenses for which the arrest was made. If this is shown, then the burden shifts to the prosecuting attorney to show that reasonable cause exists to believe that the person seeking the records be sealed committed the offense for which the arrest was made.[3]
6. Each side is able to submit declaration, affidavits, police reports, and any other evidence which is material, relevant, and reliable to meet the burden of proof.
7. If the petition is allowed by either the law enforcement agency or the Court and the records are ordered sealed, then they must be sealed for three years and then destroyed[4]. The records will be sealed, but not destroyed if there is a civil action pending.
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1. If you were arrested and charges were filed, but you were acquitted or the charges were later dismissed, you need to file a petition with the court where the charges were filed[5].
2. A copy of the petition is served on the law enforcement agency involved in the arrest and the prosecuting attorney having jurisdiction over the matter ten days before the date of the hearing.
3. During the hearing the initial burden is on the person seeking to seal to show that no reasonable cause exists to believe that he or she committed the offenses for which the arrest was made. If this is shown, then the burden shifts to the prosecuting attorney to show that reasonable cause exists to believe that the person seeking the records be sealed committed the offense for which the arrest was made[6].
4. Each side is able to submit declaration, affidavits, police reports, and any other evidence which is material, relevant, and reliable to meet the burden of proof.
5. If the petition is allowed by the Court and the records are ordered sealed, then they must be sealed for three years and then destroyed.[7] The records will be sealed, but not destroyed if there is a civil action pending.
Generally, you need to bring the petition to seal within two years of being arrested or charges having been filed against you (whichever is later). However, you may be able to file even if the deadline expired if you can show good cause to the Court for not having filed the petition earlier.[8]
Appeals Process
When appealing to seal a felony case where charges were filed, the appeal goes to the Court of Appeals. In all other cases, the appeal goes to the Appellate Division of the Superior Court.[9]
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[1] The provisions for sealing a record in California are set out in Cal. Penal Code § 851.8.
[2] Petition to seal pursuant to Cal. Penal Code § 851.8(a) can be found at: http://ag.ca.gov/idtheft/forms/bcii_8270.pdf.
[3] Cal. Penal Code § 851.8(b).
[4] Cal. Penal Code § 851.8(b).
[5] Cal. Penal Code § 851.8(c).
[6] Cal. Penal Code § 851.8(b).
[7] Cal. Penal Code § 851.8(b).
[8] Cal. Penal Code § 851.8(k)(1).
[9] Cal. Penal Code § 851.8(p).
You can reach an attorney at Theta Law Firm by calling us or sending us an email at law@thetafirm.com. Theta Law Firm can represent clients all across the State of California, including in any of the following counties: Alameda | Alpine | Amador | Butte | Calaveras | Colusa | Contra Costa | Del Norte | El Dorado | Fresno | Glenn | Humboldt | Imperial | Inyo | Kern | Kings | Lake | Lassen | Los Angeles | Madera | Marin | Mariposa | Mendocino | Merced | Modoc | Mono | Monterey | Napa | Nevada | Orange | Placer | Plumas | Riverside | Sacramento | San Benito | San Bernardino | San Diego | San Francisco | San Joaquin | San Luis Obispo | San Mateo | Santa Barbara | Santa Clara | Santa Cruz | Shasta | Sierra | Siskiyou | Solano | Sonoma | Stanislaus | Sutter | Tehama | Trinity | Tulare | Tuolumne | Ventura | Yolo | Yuba