Sometimes a person is arrested for a crime they did not commit. In the nightmare scenario, they are charged and maybe even convicted. But often the prosecutor declines to prosecute or, if charged, the charges are dismissed or the person is acquitted.

For example, say you are at a party and someone starts a fight. You are in the fray but only as a spectator. You do not throw a single punch or otherwise harm anyone, but some of the participants are injured. The police arrive and you find yourself arrested for aggravated assault, which is a serious charge. The subsequent police investigation exonerates you: plenty of witnesses tell the investigators that you were not one of the participants but only standing on the sidelines. The district attorney recognizes that there is no reason to pursue charges against you. All you suffered is the arrest and nothing else; you are in the clear, right?

Not exactly. That arrest is now on your otherwise pristine California Department of Justice criminal history record (commonly called a “rap sheet”). In the era of instant information, having an arrest show on your criminal record means that current and future employers may find out about it, your school may learn of it, even your landlord may know. Furthermore, if you have a job that requires a state or federal license or clearance, the arrest may affect your job or future application for such a job.

This is an unfair consequence for something you didn’t even do. California has a statutory mechanism whereby a person who was arrested but not charged (or in some cases if charged but acquitted or had the charges dismissed) can file what is called a Petition for Factual Innocence. If the court grants the petition, the arrest is ordered sealed, thus removing it from your record. But the procedure for filing this petition is circuitous, first requiring the petitioner to petition the arresting agency and if that is denied (which it almost always is), then petitioning the court.

Under the current statute, the standard upon which the court is directed to grant the petition is that there was “no reasonable cause . . . to believe that the arrestee committed the offense for which the arrest was made.” (Penal Code §851.8(b).) This has been interpreted by the appellate courts to mean that the police had no reason to arrest the person. Some judges take a very hard line, maintaining that the police—although perhaps mistaken—had a very good reason to believe the arrest was justified and deny the petition.

Beginning next year, it will be easier for persons in this situation to have their arrest record sealed. A new law signed by Governor Brown and slated to go into effect on January 1 will require the courts to order the sealing of the arrest record in most cases. There are notable exceptions but if a person is arrested and no conviction occurred, that person can petition the court—as he or she can now—to seal the arrest record. The big change this law brings is that the petitioner is entitled “as a matter of right” to have the arrest record sealed; it is no longer left to the discretion of the court. For certain arrests, most notably those involving domestic abuse where a pattern of abuse is established, the court is not required to order the sealing of the record, but may do so in the interests of justice.

Upon the granting of the petition, the arrest record is ordered sealed and the arrest is “deemed not to have occurred.” Despite this statutory language, there will still be some instances where the arrest is discoverable or reportable. For example, a prosecutor may plead the arrest in a subsequent prosecution and a person applying for certain jobs that require government licensure may have to report the arrest.

This new law is a welcome change as I have seen petitions for factual innocence denied even in cases where it was clear the person was completely innocent of the crime for which they were arrested. With the new law, such arrests will be much easier to seal and once destroyed, there will (with a few exceptions) no longer be a criminal history following the innocent person. If you were arrested but not convicted, even if you went to trial and were acquitted, and even if you were convicted but the conviction was vacated or reversed on appeal, you are eligible to file this petition. I strongly encourage anyone who qualifies to consider this petition; it is a relatively straightforward process and depending upon your circumstances, it may be your legal right to have the arrest record sealed.

William Weinberg has been practicing criminal defense in Orange County for almost 25 years. He offers a complimentary consultation to discuss your criminal matter. If you believe you are eligible for the petition discussed in this post, you can reach Mr. Weinberg at (949)474-8008 or by email at and he will be happy to evaluate your eligibility.