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Sealing Your Arrest Record: PC 851.8 vs. PC 851.91

Law Office of Kristine Koo

Let’s say you are arrested 10 years ago, but are never convicted of that crime. For example, you are charged with simple battery, a violation of Penal Code 242, but the District Attorney never filed the case/filed a complaint against you, and eventually dismissed the case against you. That is great, but you still have an arrest on your record. So, when you apply for a job, the arrest pops up on your background check. Can you get rid of this arrest on your record, as in, can you seal your record? And, how do you do that?

Petition for Factual Innocence (PC 851.8) or Petition to Seal Records (PC 851.91)

Here are two options: You can file a Petition for Factual Innocence (PC 851.8) or you can file a Petition to Seal your records (PC 851.91).

For a Petition for Factual Innocence, you have the burden of proof of showing that there is no reasonable cause for your arrest. In other words, the police has no reason to arrest you in the first place because you are innocent. This can be a hard one to prove. In the simple battery example used above, the elements for a simple battery are 1) you touch someone, 2) willfully, and 3) in a harmful or offensive manner. So, as long as someone was offended when you touched them, the police could technically have reasonable cause to arrest you for battery.

Now, unless the wrong person was arrested or there are facts not articulated in the arrest report that can be litigated now to change the whole circumstance of the case, a Petition for Factual Innocence could be an uphill battle. DNA, alibi, phone records, witness testimony, affidavits, journals, etc. may be used to prove once’s innocence at a hearing for a Petition for Factual Innocence. And, once you show there is no reasonable cause for your arrest, the burden then shifts to the prosecuting agency to show that there was reasonable cause. The judge will make the final call.

Now, for a Petition to Seal one’s records, all one has to show is that one was arrested, but never convicted. Or, one may have been arrested, or later have been acquitted, or their charges were reversed or vacated on appeal. Basically, so long as someone was never formally declared guilty of a criminal defense, made by the verdict of a jury, plea, or decision by the court, a Petition to Seal one’s records could be a great option.

A Difference between a Petition for Factual Innocence and Petition to Seal Records

A difference between a Petition for Factual Innocence and a Petition to Seal Records is that in the former, one’s record is sealed and destroyed. Meaning, once it is destroyed, there is no evidence one was ever arrested. Law enforcement is required to destroy all records of the arrest (photographs, police reports, etc.) after three years of the granting of the request. In the latter, however, one’s record is simply sealed. It is not destroyed. Though, for the purposes of answering the question of whether one has been arrested or not after one’s records are sealed, one can honestly answer “no” if their records were indeed sealed. Nevertheless, with a Petition to Seal your arrest records, if you want to become a peace officer, apply for public office, apply for licensure, or work for the California Lottery Commission, you are not relieved of your obligation to disclose the arrest. (But, your arrest is still sealed).

The nuances can be tricky so contacting an experienced Criminal Defense Attorney is important to your success.

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