How to Remove an Arrest from your Record in California

I have practiced law for over 20 years and during that time I have seen many people get arrested for a crime who end up never going to court because the District Attorney declines to file the charge. There are many reasons for this. The most common is that the police may have probable cause to arrest someone for a crime but once they submit their reports to the prosecution, the prosecutor may decide that they cannot prove the case beyond a reasonable doubt. This is because the police threshold for arresting someone (probable cause) is much lower than the threshold needed for a jury to find someone guilty (beyond a reasonable doubt). Regardless, while the individual does not face a charge in court, the arrest remains on their record.

The competitive nature of the current job market coupled with the ease with which potential employers can find information on potential employees makes it imperative to have as clean a record as possible. This may also include removing any arrests.

Fortunately, California has a process for removing arrests through Penal Code Section 851.8. This law directs that if a Petition under that section is granted the record of arrest must be sealed for three years from the date of the arrest and thereafter the record of arrest must be destroyed. The Petition is known as a Petition to Seal and Destroy Arrest Records and as a Factual Innocence Motion.

Penal Code Section 851.8 states that in order for this Petition to be granted the court must find that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. Reasonable cause as used here by the Penal Code is the same as probable cause and refers to the relatively low legal standard the police must have to arrest someone.

In practice however, in situations where the case was never filed, the District Attorney usually does not oppose these motions even if there was reasonable cause to believe the arrestee was committing a crime. I believe that the reason the District Attorneys rarely oppose these Petitions is that they see little sense in litigating the matter when a decision was already made that the evidence was insufficient to prove the case.

I have filed many Petitions to Seal and Destroy Arrest Records and in almost every case reasonable cause existed to make the arrest. However, in virtually every case I have handled the District Attorney either did not oppose the matter or the Judge granted my Petition over the District Attorney’s objection and I have won the Petition!

The rare nature of these Petitions and the indifferent nature of the District Attorney and the Court often plays a part in their being successfully granted. Notably, these Petitions can also be filed after a finding of Not Guilty by a Jury or Judge.

These Petitions should be filed within two-years of the arrest but in practice and in the interests of justice I have filed such Petitions many years after the arrest and they have still been granted.

Filing a Petition to Seal and Destroy Arrest Records is a two-step process. The Petition must first be served on the arresting police agency who also have the power to grant or decline the request. If they grant the request then the arrest record will be sealed and destroyed and the process is over. It is rare that a police agency grants such a request although it does occur. If the Police agency declines the request or does not respond within 60 days, then the Petition is filed with the court and the matter goes before a Judge. The District Attorney must also be served with the Petition and be permitted to weigh in on the matter. The Law Offices of William W. Bruzzo and William W. Bruzzo, Esq. have successfully represented many clients in successful Petitions to Seal and Destroy Arrest Records / Factual Innocence Motions. Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547-4636.