Penal Code Section 851.8 provides that a person who has been arrested or detained and is determined to be factually innocent may petition the law enforcement agency or court having jurisdiction over the matter to provide for the sealing and destruction of the record of that arrest. Petitions concerning arrests may be filed for up to two years following the arrest filing date.
So, what exactly does this mean? Simply put, it means that if you were arrested and, according to the law should not have been, you may petition the court to destroy all records of the arrest.
A good example of a wrongful arrest would be if you were arrested for having a Vicodin pill in your possession and you repeatedly explain to the officer that you have a prescription for Vicodin but the officer arrest you anyway, rather than taking the time to find out whether or not you are telling the truth. The case is then submitted to the District Attorney. Once the District Attorney is made aware that you do in fact have a prescription for Vicodin, the case is rejected but the arrest is there to stay.
As you can imagine, being wrongfully arrested would be extremely traumatic. But then to find out that the arrest shows up every time you apply for a job or any type of state licensing, is not just traumatic but extremely damaging. Perspective employers may be reluctant to hire someone who has an arrest on their record. Imagine having to explain that you were wrongfully arrested every time you fill out an employment application or have a job interview and then having to wonder whether or not your perspective new employer believes you.
Unfortunately, this is very real. People are wrongfully arrested all the time. Police officers often arrest now and ask questions later and then release without filing charges. Even if the arresting agency releases you with a “detention only” letter, the arrest stays on your record and follows you wherever you go. This is why the Petition to Seal and Destroy Arrest Record is invaluable. Getting an order from the court to seal your arrest records means that the police reports, fingerprints, booking photos and all records of the arrest are destroyed. And equally as important, you can then legally answer “no” when asked if you have ever been arrested.
Even if it goes as far as the case being filed, if there is no conviction that person may petition the court for a finding that the he or she is factually innocent of the charges for which the arrest was made. Once the court grants the petition, the arresting agency is ordered to destroy all records of the arrest.
Filing a Petition for Factual Innocence or Petition to Seal Arrest Records isn’t as easy as just submitting a piece of paper. There are procedures that must be followed and documents that must be attached to the Petition. Basically, you must prove to the court that you are “factually innocent” and should never have been arrested in the first place. Hiring an attorney who has had success filing these petitions, and knows what the Court is looking for, will increase your chances of success.