In the first posts in this series, we have discussed the definition of a criminal record and how to obtain your criminal record history. Today we will learn about sealing and destroying arrest records.
There are several circumstances in which records of your arrest or detention may be completely sealed and destroyed. Having your records ordered sealed and destroyed makes sure all law enforcement agencies and courts will seal you records and, after three years, destroy them. Once ordered sealed and destroyed, you need not indicate that you were ever arrested of the offenses.1
Reasons records may be sealed and destroyed
If you were arrested and no charges were filed, you may petition the arresting agency and the district attorney to have your records sealed and destroyed. They will grant your request if you can show you are factually innocent of the crime charged, meaning no reasonable cause existed to show you committed the offense. If the law enforcement agency and district attorney fail to timely respond (usually 60 days), the petition is deemed denied.2
If your petition is denied, you can petition the superior court in the county of your arrest. You must prove to the superior court that you are factually innocent of the crime charged. You can provide the court with declarations, affidavits, police reports and other relevant evidence showing that no reasonable cause.3 The court will not grant relief if they “believe or conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty of the crimes charged.”4
If you were arrested, charges were filed, but no conviction occurred, you may directly petition the superior court to seal and destroy your records. The court must also find you factually innocent of the crime in order to grant relief in this scenario.5
The court may also order your arrest record sealed and destroyed in cases where dismissal occurs and the prosecuting attorney agrees with the court’s order.6
Finally, a judge presiding over a jury trial in which an acquittal occurs may find the defendant factually innocent of the charges and order the records sealed and destroyed on their own.7
Sealing records of drug offenses
A similar process to seal records exists for substance use or drug possession offenses. The Court may order your drug arrest record sealed, but not destroyed, if you completed statutory drug diversion or Deferred Entry of Judgment (DEJ) program, and the offense for which diversion or DEJ was granted is listed in Penal Code § 1000.8
After records are sealed and destroyed
Once an arrest record is ordered sealed and destroyed, you do not need to indicate you were ever arrested of the offense unless you are applying for to be a peace officer, in which case you must disclose the arrest.9
Juvenile record sealing
Your indiscretions as a juvenile don’t have to follow you as an adult. In many cases, you can seal your juvenile records when you turn 18.10 You must petition the juvenile court in the county you were convicted to have your juvenile record sealed.11 Once sealed, your juvenile offenses are inaccessible and they will be destroyed five years from the date sealed.
If you do not petition to have your juvenile record sealed, they will remain on your record until you turn 38; at which time they will be destroyed.12
Note that some serious or violent felonies13 are not be eligible to be sealed, will not be automatically destroyed and can be used as strikes against you in the future.
If you have any questions about your criminal history and situation, please contact me at (530) 823-5400 for a free consultation.
- Penal Code § 851.8(f)
- Penal Code § 851.8(a)-(b)
- Penal Code § 851.8(b)
- People v. Adair (2003) 29 Cal.4th 895
- Penal Code § 851.8(c)
- Penal Code § 851.8(d)
- Penal Code § 851.8(e)
- Penal Code § 851.90(a)(1)
- Penal Code § 851.90(a)(6), (b)
- Penal Code § 851.7
- Welfare & Institutions Code § 781(a)
- Welfare & Institutions Code § 781(d)
- Penal Code § 707(b)