Have you ever wondered if you could seal and destroy your adult arrest record?
If you have been convicted and the case has not been dismissed, a petition to seal and destroy does not generally apply to you. However, you may qualify to EXPUNGE your record(s).
DIFFERENT TYPES OF PETITIONS TO SEAL AND DESTROY
Petition to Seal and Destroy Arrest Record – Factually Innocent Under Penal Code Section 851.8.
Under Penal Code Section 851.8, it allows a person to request from the judge a finding of factual innocence and have their arrest record sealed.
To have a petition granted under Penal Code Section 851.8, it is difficult. The reason being is that, when a person is accused of a crime, the burden is on the prosecution to show that you are guilty. Here, the burden is on you to show that you should have never been arrested in the first place. Often times, you have to show that the police lacked probable cause to arrest you. This is a difficult burden to meet, and more often than not, the prosecution will always object to relief under Penal Code 851.8.
Relief under this section is the most comprehensive. It allows the judge to find a finding of innocence, and the arrest in question is completely sealed. This means no one is allowed access to them without a court order. Plus, after three years after the records have been sealed, the arrest record and the order sealing the records are destroyed.
Seal and Destroy Arrest Record As a Matter of Right Under Penal Code Section 851.91
Under California Penal Code Section 851.91, if you were arrested but that arrest did not result in you getting convicted, you may petition the court to have your arrest and related records, sealed and destroyed, as described in Section 851.92.
An arrest did not result in a conviction under the following circumstances:
- The statute of limitations for the offense upon which the arrest was based has run, AND the prosecuting agency who had jurisdiction over the offense failed to file in court within that time.
- The prosecuting agency filed a case against you BUT
- No conviction occurred,
- the charge has been dismissed, and
- the charge may not be refiled.
- In the County of Orange and Other surrounding Counties, if you were arrested and participated in a Deferred Entry of Judgement Program that later dismissed all allegations against you in court.
Above are only a few factors that allow you to petition to seal and destroy your arrest record(s), as a matter of right. There is a whole list of what makes you qualify and not qualify for a petition to seal and destroy arrest records as a matter of right. The list is quite long. For more information on what qualifies and what does not, please click HERE.
Seal and Destroy Arrest Record In The Interest of Justice Under Penal Code Section 851.91(c)(2)(B).
You may also petition the court to seal and destroy your arrest record in the interest of justice under Penal Code Section 851.91(c)(2)(B).
Under Penal Code Section 851.91(c)(2)(B), you are petitioning the court to seal and destroy your arrest record(s), as it would serve the interests of justice to do so.
In order to determine whether the interests of justice would be served by sealing your arrest record pursuant to this section, the court considers serveral factors, including, but not limited to, any of the following bellow:
- Hardship to you caused by the arrest.
- Declaration or evidence as to your good character.
- Any other criminal conviction.
- Declaration or evidence in regards to your arrest.
- Any other documentation showing you are a productive member in society that will aid the judge in why he should grant the petition.
Under this section, the burden is on you to show the judge, you are deserving of this. You must show your good behavior with supporting documents, in order for the judge to grant your petition in the interests of justice.
A petition to seal and destroy arrest record under Penal Code sections 851.91 and 851.91(c)(2)(B), effectively destroys your arrest for most purposes. However, it does not cease to exist. There are instances where it can be used. For example:
- A sealed arrest may be used against you if you are subsequently prosecuted for any other offense.
- Disclosure when applying for gainful employment as a peace officer, public office, or government agency.
- Licensure by any local or state agency.
The above are just examples, and there are other instances where one must or may have to disclose the arrest even after petitioning the court to seal and destroy your arrest record. Contact the Law Office of Jimmy Cha, if you have questions or would like to know more regarding this.
Is There a Deadline to Petition the Court to Seal and Destroy My Arrest Record in California?
Generally, for a petition to seal and destroy your arrest record under Penal Code 851.8, you have up to two years after you were arrested or the charges were filed against you to petition to seal and destroy your arrest record. However, if you can show good cause, the judge has discretion to hear your petition beyond the deadline.
If you are petitioning under Penal Code 951.91 or 851.91(c)(2)(B), there is no statute of limitations but you must give at least 15 days notice to the prosecutor prior to the hearing. This is also taking into consideration that the statute of limitations has passed, and the prosecuting agency cannot file an accusation in court against you.
Contact the Law Office of Jimmy Cha
If you or someone you love could benefit from a petition to seal destroy arrest record and are looking to hire an attorney, contact the Law Office of Jimmy Cha. Or if you just have questions and want to know more what a petition to seal and destroy arrest record could do for you, just call.
We provide free consultation. The Law Office of Jimmy Cha, is located in Fullerton but we provide services in the greater Los Angeles County, Orange, Riverside, San Bernardino, San Diego, Ventura, and surrounding counties.