Legal Background

Arrest Records

In some circumstances, it may be possible to have the actual record of your arrest destroyed. The arrest record is different from the actual record of your conviction.

A person who is found to be factually innocent may have his or her arrest record sealed and destroyed when:

(1) A person acquitted of a charge;
(2) A person has been arrested and no accusatory pleading has been filed; or
(3) A person has been arrested, an accusatory pleading has been filed but no conviction has occurred.

An order to seal and destroy arrest records obtained through these procedures requires the law enforcement agency having jurisdiction over the arrest, the Department of Justice, and any law agency that arrested the petitioner or participated in the arrest to seal their records of the arrest for three years from the date of the arrest and thereafter to destroy such records. The order also requires that the law enforcement agency having jurisdiction over the arrest and the Department of Justice request the destruction of any arrest records they have given to any local, state, or federal agency, person or entity. After notice of sealing has been sent to the Department of Justice, that agency must report the sealing to all officers and agencies that it had previously notified of the arrest or other proceedings against the petitioner.

The order to seal and destroy records must be based on a finding that no reasonable cause exists to believe that the person committed the offense for which the arrest was made. The order may not apply to court records relating to the case. Nor does it apply to records for infractions. Any findings of factual innocence are not admissible as evidence in any action.

Procedure on Acquittal

When a person has been acquitted of a charge and is found by the presiding judge to be factually innocent, a court may order the sealing and destruction of the defendant's arrest record. To make a determination of factual innocence, the court must find that there is no reasonable cause to believe that the arrestee committed the offense of which he or she was acquitted. However, a person is not considered to have been found factually innocent when there is a dismissal in the interest of justice, an acquittal because there is insufficient proof to overcome reasonable doubt, or a dismissal for lack of prosecution. A motion to seal the record may be made by any party or by the judge presiding at the trial where the acquittal occurred. There is no statutory requirement that a hearing be held, but it is likely that there would be a hearing if the district attorney objected to the sealing. The decision is made in the court's discretion and is appealable.

Procedure When No Accusatory Pleading

When a person has been arrested but no accusatory pleading has been filed, the arrestee may petition the law enforcement agency having jurisdiction over the offense to destroy its records. The petition for relief must be filed within two years from the date of the arrest. A copy of the petition must be served on the district attorney of the county having jurisdiction over the offense. The agency, on a determination that the person is factually innocent and with the district attorney's concurrence, must seal the arrest record and the petition for three years from the date of arrest, and then destroy the records and the petition. The agency must then notify the Department of Justice and any other law enforcement agency having copies of the records that these records must be sealed and destroyed. The petition must be deemed denied if the agency does not respond to it within 60 days after the statute of limitations, or, when the statute of limitations has lapsed, within 60 days after the receipt of the petition. A petition may then be filed in the municipal or superior court that would have had territorial jurisdiction over the case. A copy of the petition must be served on the district attorney of the county at least 10 days prior to the hearing. The petition for relief must be filed within two years from the date of the arrest. All necessary forms for petitions and findings must be supplied by the Department of Justice.

Procedure When Accusatory Pleading Filed

When a person was arrested and an accusatory pleading was filed, but the case was dismissed, the person may at any time after dismissal petition the court that dismissed the action for a finding of factual innocence. The petition for relief must be filed within two years from the date of the arrest or the filing of the accusatory pleading, whichever is later. The district attorney of the county where the accusatory pleading was filed must be served with a copy of the petition at least 10 days before the hearing. The procedure parallels the one used when no accusatory pleading was filed. It is also possible for the court, with the concurrence of the district attorney, to grant the relief of sealing and destruction at the time the pleading is dismissed. It is possible to forego a special hearing in this instance.

Hearing and Order

At the hearing on the petition, the district attorney and the defendant may present evidence, including declarations, affidavits, police reports, or any other evidence that is material, relevant, and reliable. Evidence that may have been returnable or suppressed as the fruit of an illegal search under Penal Code Section 1538.5, or from the transcript of a hearing on such a suppression motion under Penal Code Section 1539, is admissible. The burden of proof is originally on the petitioner. When the petitioner shows that there is no reasonable cause to believe that he or she committed the crime, the burden of proof shifts to the district attorney to show that reasonable cause does exist. On a finding of factual innocence, the court must order the sealing and destruction of the records. The petitioner receives a copy of the order.