How to Seal an Arrest Record in California - CPC §851.8


If you were ever arrested in California, even if you were not guilty, you will have an arrest record for the rest of your life unless you get that record sealed.

California arrest records and factual innocence

Not Guilty Doesn’t Mean Innocent

Persons wrongfully accused of crimes face crippling, long-lasting repercussions. In California, an arrest remains on a person’s criminal record for their lifetime. Arrest records do not necessarily denote guilt. Regardless, an arrest record can have persistent, damaging effects on the accused’s life.

A few decades ago, California law was changed to give those who have been wrongfully arrested a chance to have their records destroyed; so long as they can prove that they are ‘factually innocent.’

What is a Petition for Factual Innocence, and why is It Important?

With the faltering economy and growing job scarcity, an increasing number of people are asking criminal defense lawyers to get their arrest records sealed. Unfortunately, California has few statutory remedies to seal previous arrests. California Penal Code § 851.8, a petition for factual innocence (PFI), provides the broadest protection and is the most commonly available course of action. The court can grant a PFI for any arrest that did not result in a conviction. (See Cal. Penal Code § 851.8.)

A judge who grants a PFI will order that all arrest and prosecution records be sealed. This seal holds until three years from the date of the arrest, at which time all the related records will be destroyed, including the petition itself, the PFI order, police reports, fingerprints, booking photos, other arrest records, state Department of Justice records, and those of any other agency that received information of the arrest, such as the local police department. Put simply, PFI wipes the slate clean.

The statute itself declares that when the PFI is granted, “the arrest shall be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence.” In addition, the statute requires the law enforcement agency that has jurisdiction over the offense (or the court) to issue a written declaration to the accused stating that he or she is factually innocent.

When a jury acquits someone, it simply means that the prosecution did not meet the burden of proof for guilt. This does not necessarily mean that the defendant did not commit the crime. PFI is a wonderful asset for anyone who has been wrongfully arrested, or innocent and later acquitted of the charges, and wants to regain their good name.

Current and potential employers, as well as landlords, banks, or anyone else seeking public records will not have access to any of the records that reveal the arrest. Although Labor Code section 432.7(a) generally prohibits an employer from asking about any arrest that did not result in conviction, job inquiries are only one of many potential concerns for someone with an arrest record. Their arrest record can dramatically affect a host of matters including: adoption, child custody, credit, insurance premiums, licensing, school admission, and a most importantly a person’s standing in the community.

The protections of arrest record sealing do not inhibit disclosure of arrests to a government agency employing a peace officer, the Department of Justice or other criminal justice agencies, health facility employers, any employer that is licensed as a community care facility, residential care facility for the elderly, or child care center.

What Does Factual Innocence Mean?

In order to declare you “factually innocent”, the evidence presented must exonerate the accused, not merely raise a substantial doubt as to their guilt. According to the California Court of Appeals, a finding of factual innocence shall not be made unless no reasonable cause exists to believe that the accused committed the offense for which the arrest was made. “Reasonable cause” is defined as that state of facts that would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.

In 2003, the California Supreme Court adopted a narrow interpretation of the § 851.8 of the factual innocence standard. The court found that the standard precludes a trial court from granting a petition if the court finds that any reasonable cause warrants belief in the petitioner’s guilt. This means that a § 851.8 petitioner cannot establish factual innocence by presenting a viable defense to the crime charged. Nor can a petitioner establish factual innocence through the prosecution’s failure to prove guilt beyond a reasonable doubt.1

Also, the state appellate court has found that the factual innocence requirement reflects legislative recognition that a prosecutor may fail to meet the burden of proof beyond a reasonable doubt, resulting in the acquittal of a defendant who is not innocent.2

Finally, the state appellate court has held that a defendant who plead not guilty by reason of insanity and who was found guilty of the charged offenses after completion of the initial stage of trial and found not guilty by reason of insanity upon conclusion of the sanity phase was not factually innocent of the charges against them, as required for expungement of his arrest records, as there was reasonable cause to arrest defendant and compel him to face criminal charges, as there was reasonable cause to arrest defendant and compel him to face criminal charges.3

Who is Eligible?

Individuals may be able to have their California arrest records sealed and destroyed that:

  1. were arrested for either a misdemeanor or felony (infractions ineligible)4
  2. have an arrest for a misdemeanor or felony which has been deemed to be or described as a detention under CA PC § 849.5 or 851.6;
  3. were arrested for a misdemeanor or felony, but the prosecutor never filed criminal charges;
  4. had their case dismissed in court; or
  5. were acquitted by a jury following a California jury trial; and
  6. can prove that they are factually innocent of the charge(s) for which they were arrested

The critical factor is whether the defendant suffered a conviction. If so, even if they later had it dismissed under Penal Code § 1203.4, they are not eligible for this type of relief.5

Similarly, this is not the appropriate motion to raise if one is trying to seek relief from their duty to register as a sex offender pursuant to Penal Code § 290. The appropriate remedy in such a situation is to seek a Certificate of Rehabilitation or a Governor’s Pardon.

It is also important to note that a California motion to seal and destroy arrest records is not a motion that applies to the arrested individual’s entire criminal record. It is a motion that must be made and granted specific to each arrest the accused wishes to contest. To be successful, the petitioner must prove that they are factually innocent for every charge listed under each arrest.

This means that someone who is arrested on one occasion, charged with misdemeanor DUI and felony possession of stolen property, found guilty of the DUI, and acquitted of possession of stolen property, is not eligible to petition for factual innocence for that arrest. An arrest record under §851.8 cannot be partially sealed.

Timing is an important issue regarding eligibility for a PFI. Generally speaking, the petition must be filed no later than two years after the arrest, but this same statute requires the petitioner to first petition the arresting agency for a factual innocence finding if no court charges were filed.6 If the law enforcement agency does do not respond, which is the case 99% of the time, then one must wait sixty days after the running of the statute of limitations to file a petition, which for most felony cases is three years.

Let’s review: One must file their petition no later than two years after being arrested, and no sooner than three years and sixty days after being arrested. This contradiction and complexity within the law is why it is important to obtain an experienced lawyer at the earliest opportunity to ensure that one’s opportunity to petition for arrest record sealing is not lost.

Thankfully, the judge has discretion to hear cases beyond these time limits based on good cause.7 A skilled California attorney will show good cause after the statutorily allowed time has expired by indicating that the petitioner did not know that arrests remain on one’s record, nor of their ability to petition for factual innocence under Cal. Penal Code § 851.8.

The High Burden of Proof

The burden to prove factual innocence lies with the arrested individual. Assuming that the judge does not initiate the motion, the accused must petition the court for the requested relief. The burden is on the arrested individual to establish that there was no reasonable cause for the arrest. When examining this issue, the judge is not restricted by the strict rules of evidence that govern a jury trial. California law allows the judge to consider a wide variety of evidence when ruling on this issue.

The court may evaluate police reports, affidavits, and any other “material, relevant, and reliable” evidence.8 This even includes evidence that the court previously suppressed pursuant to a Penal Code § 1538.5 motion to suppress evidence, as well as any facts that were disclosed after the arrest.

If the accused meets this burden, the burden shifts to the prosecution. If they wish to challenge accused’s motion to seal and destroy their records, the prosecution must prove that reasonable cause did exist at the time of the arrest. Both sides are entitled to appeal the court’s ruling.

The Process of Petitioning for Factual Innocence

Petition for factual innocence

The process of sealing an arrest record can be a few months or as long as a year, depending on the complexity of the circumstances surrounding the arrest. Most cases are complete after a few months. Individual counties and courts determine whether appearance in court is required for the proceedings or whether their criminal defense attorney can appear on their behalf. An appearance on the part of the petitioner is usually not required.

Sealing arrest records in California may be either a one or two-step process, as outlined below.

Petition the Arresting Law Enforcement Agency to Seal Arrest Record

The law enforcement agency that made the arrest is petitioned directly to seal the record. If the accused was arrested, but the prosecutor never filed charges against them, the accused’s first step in seeking relief is to serve the petition on the arresting law enforcement agency. If the police agency recognizes that the petitioner is factually innocent, the police themselves will notify the Department of Justice and seal the arrest record for three years. Once the three-year period has expired, they will destroy the records. If the police deny petitioner’s request, or fail to respond within 60 days, your lawyer will move on to Step Two.

We hope that the police do their work and do an accurate job. However, life is complicated and police officers are human and often make mistakes in their work. Is the arresting agency likely to recognize that the petitioner is factually innocent? No. Few police departments want to admit error, let alone do any extra work. The customary police response to a PFI is to ignore it, whereupon section 851.8(b) controls and essentially places the accused in limbo until the 60-day period mentioned above has lapsed.

This scenario can be a problem in the professional world. For example, someone working for a defense contractor may lose security clearance in the interim. The situation is also problematic for a pharmacist erroneously arrested for heroine possession, or a church youth counselor falsely arrested for possessing child pornography. What becomes of these innocent people while a false felony arrest remains on their record for years?

Petition to the Superior Court of California to Seal Arrest Record

The Superior Court of California in which a criminal complaint was filed or Court that would have had jurisdiction had charges been filed is petitioned.

This process is for individuals who:

  1. had their cases dismissed in court after charges were filed;
  2. were acquitted by a California Jury; or
  3. had their request denied by the arresting law enforcement agency, or their petition was not responded to after 60 days

A copy of the petition shall be served on the law enforcement agency and the prosecuting attorney of the county or city having jurisdiction over the offense at least 10 days prior to the hearing. The prosecuting attorney and the law enforcement agency, through the district attorney, may present evidence to the court at the hearing. A finding of factual innocence and an order for the sealing and destruction of records pursuant to section 851.8(b) is made if there is no reasonable cause to believe that the accused committed all offenses for which the arrest was made.

Practical Issues

When requesting an order to seal and destroy arrest records, there are several practical issues to keep in mind. First, it is good practice to submit ample evidence of the client’s good character. It is essential that the court considers the petitioner deserving of relief and sees the equity in his or her request.

Another consideration is that if the police report is not in the court’s file, it can be hard to find. Police reports not in the court’s file can be hard to come by for several reasons:

First, reports for older cases are either destroyed or get put into dungeon archives that make them extremely hard or impossible to obtain. The retention schedule for police and investigation reports for most law enforcement departments is somewhere three to five years.9 This means that the arresting agency may not even have the arrest report by the time the arrested party is petitioning for factual innocence because the report may have been destroyed. It is important to note that destruction of a physical arrest report does not remove the arrest from the accused individual’s record.

Second, depending on the agency or city’s policy, arrested individuals have no ‘right’ to investigative reports, and the reports are typically exempt from most public record requests under the Freedom of Information Act.10 While a defendant is guaranteed a copy during the discovery process in a criminal proceeding, arrest record sealings are usually commenced once it’s determined there will be no criminal charges, or the charges have already been dismissed, withdrawn, etcetera. Because an arrested individual is not entitled to a report after criminal proceedings have been closed, this regularly results in a subpoena being required to obtain the investigative or arrest reports, which typically cannot be requested until the arrest record sealing process has already commenced.

As such, more often than not a PFI is filed without the corresponding police report. This can be good because a police report, if it is even available, is unlikely to support the petition. Supposing an individual is innocent or was wrongfully arrested, the arresting officers are unlikely to admit their mistake in their report. This results in biased/inaccurate reports that attempt to justify bogus arrests.

When a Petition for Factual Innocence is Granted, How Are the Records Destroyed?

When an accused individual’s California records are declared “sealed and destroyed”, the arresting law enforcement agency, Department of Justice, and any local state or federal law enforcement to which they have released records must destroy the arrest records, and destroy the request to destroy those records. This means that these agencies must permanently obliterate “all entries or notations upon the records pertaining to the arrest, and the record shall be prepared again so that it appears that the arrest never occurred.” 11

That being said, if you or a codefendant files a civil lawsuit against the officer or law enforcement agency that made the illegal arrest alleging police misconduct or a United States Code 1983 Civil Rights Violation, the records will not be destroyed until the case is resolved. This allows the otherwise “sealed” records to be “reopened” and admitted into evidence during the civil case. 12

The Importance of Hiring a Skilled California Criminal Defense Attorney

Without the help of an experienced attorney, it can be quite difficult to have one’s arrest record sealed. This is because of the extremely high burden discussed above that is required to prove factual innocence.

The judge has wide discretion in deciding whether to grant or deny a motion to seal and destroy California arrest records. The judge can deny a motion with prejudice so that one may not re-file to have their records sealed. It is critical to hire a skilled California criminal defense attorney.

An experienced attorney will research your case, ensure all paperwork is completed correctly, conduct the hearing and argue your case to the judge, and help you contact potential employers to let them know that you are making legitimate efforts to clear your criminal record.

You can quickly determine if your record is eligible to be sealed by taking this free online record sealing eligibility test. If you would like us to seal your record for you, please see our California arrest record service .

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1 See People v. Adair, 29 Cal. 4th 895 (2003)
2 See People v. Glimps, 92 Cal. 3d 315 (1979)
3 See People v. Gerold, 174 Cal. 4th 781 (2009)
4 Cal. Penal Code § 851.8(n)
5 Cal. Penal Code § 851.8(b)
6 Cal. Penal Code § 851.8(l)
7 Cal. Penal Code § 851.8(d); Cal. Penal Code § 851.8 (e)
8 Cal. Penal Code § 851.8(b)
9 Cal. Gov. Code § 34090 (et al.)
10 Cal. Gov. Code § 6254(f)
11 Cal. Penal Code § 851.8(j)
12 Cal. Penal Code § 851.8(k)