Destruction of Arrest Records Under California Penal Code 851.8
A criminal case is serious not just because of the possibility of jail time, probation, fines, and other potential consequences from the Courts. However, a criminal case can also have major repercussions for someone’s personal life. Once arrested, charged, and convicted with an offense-even for those that the criminal justice system deems “less serious” or not deserving of jail time, the defendant might face new difficulties seeking employment or professional licenses. But what about cases where the defendant is found “not guilty’ in court, or better yet, what happens when someone is arrested but the District Attorney decides to not file any charges against them? While these are certainly favorable outcomes to a criminal case, many are surprised to find that the outside world might be less forgiving. No matter what happened-or didn’t happen-in court, too many times people are turned down from promising job aspects or professional associations simply based on the fact that they were arrested. Fortunately, California allows a remedy for people in these situations under Penal Code §851.8.
Can I Get Records of My Arrest Expunged in California?
California law allows for some people who have been arrested before to get records of their arrest expunged. This stems from California Penal Code § 851.8. Under this statute, a person can file a petition to have records of their arrest destroyed in situations where they were arrested and charges were never filed, or when they were arrested and charged, but they were later found “not guilty” of those charges in court.
Situations Where You May Want Arrest Records Expunged
I was arrested, but charges were never filed
Whenever police arrest somebody, they send information about your arrest to the District Attorney’s Office. The District Attorney then reviews that information and decides whether to file formal charges against you in court for whatever the police say that they charge you with any crimes. This decision-making process may take several months, depending on the type of arrest and the availability of resources between law enforcement and the District Attorney. Sometimes the District Attorney may make their decision well after the date that police tell you to “appear” in court after your arrest. But they must make a decision at some point, and sometimes they officially decide to not charge you with anything even though the arresting officers might have recommended otherwise. In this situation, we could say that you were “arrested, but not charged”, and California Penal Code Section 851.8 allows you to get your arrest record expunged.
I was arrested and charged with a crime but my charges were “dismissed” in court
Sometimes the District Attorney may decide to file charges against a person once they are arrested, but then once the case gets to court the District Attorney may decide to dismiss the charges, or perhaps the Court may elect to dismiss them on its own motion. Sometimes this happens when new information about the case comes to light, often through the work of defense counsel preparing the case diligently before trial. In these situations, we would say that you were “arrested” and “charged with a crime”, but those charges were “dismissed.” California Penal Code Section 851.8 allows for records of your arrest to be expunged in some circumstances when this happens.
I was arrested and charged with a crime but I was found “not guilty” in court.
In many other situations, however, the District Attorney will decide to file charges against you following your arrest. Sometimes, once charged, the defendant will use their attorney to negotiate a favorable “plea deal” where they admit guilt for some of the offenses in exchange for a reduction in charges or penalties. But in other situations, the defendant and their attorney decide to go to trial to “fight” the case against them. If the defendant is found guilty or otherwise convicted of any offense as part of a “plea deal”, then the only type of expungement that they qualify for would probably come under California Penal Code Section 1203, discussed in other sections of our web page. But if the defendant is found “not guilty”, or if they are “acquitted” of the charges against them, then they are not “convicted” of anything but they still have a record of an arrest. In this situation, we would say that you were “arrested” and “charged” but you were not “convicted”, and instead you were “acquitted” or “found not guilty” in court. California Penal Code Section 851.8 allows for you to get records of your arrest expunged in this situation.
To summarize, California Penal Code Section 851.8 allows for people to get their arrest records expunged whenever, despite being arrested, they were never “convicted” or “found guilty” of anything as a result. Sometimes this happens because the charges are dismissed or the defendant is acquitted of those charges in court, and sometimes this happens because the District Attorney decides to not file charges at all.
Procedures for Expungement of Arrest Records in California
Assuming that you fit into one of these categories and therefore want your arrest record expunged, what comes next? California Penal Code Section 851.8 sets up procedures by which you can get this done.
Where Charges Were Never Filed
If charges were never filed against you, then you might be able to win an official “finding of factual innocence” regarding the facts of your arrest, and also get your arrest records sealed and destroyed. First, however, you must petition the relevant law enforcement agency to destroy your arrest records. To do this, you must serve a copy of that petition on the law enforcement agency (or agencies). The law enforcement agency will either then agree to destroy your arrest records, or deny your petition. If the agency does not respond within sixty (60) days, then the law enforcement agency is considered to have “denied” your petition.
Whenever the law enforcement agency “denies” your petition, you may then go to court and file your petition there. You must then serve your petition again on the law enforcement agency, and you must also serve the District Attorney’s Office. The court will set a hearing on your petition. At that hearing, it will be your burden to prove that there was “no reasonable cause” to believe that you committed the offense(s) that you were arrested for. The District Attorney will be allowed to present evidence and arguments against your petition. The Court will only order your records expunged if you prove that there was “no reasonable cause” to believe that you committed the offenses of your arrest.
Where Charges Were Filed
If charges are filed against you, but you are not convicted, then you can attempt to have your arrest record expunged under the same process. Again, you have to first serve a petition on the relevant law enforcement agency or agencies, and then file your petition in court if the agency denies it. You will still have to prove to the Court that there was “no reasonable cause” to believe that you committed the offenses for which you were arrested.
However, California Penal Code Section 851.8 allows for your arrest record to be expunged in other situations when you are arrested and charged. If you proceed to trial and you are found “not guilty”, then the Trial Judge can declare you “factually innocent” of those charges if they feel that this is appropriate. After a dismissal or acquittal, the trial court can also order arrest records sealed and destroyed where the District Attorney agrees.
Why Would I Want to Get Records Of My Arrest Expunged?
If you have been arrested but not convicted of any crimes from that arrest, you can truthfully say that were not “convicted” of any crimes following that incident. But you may still wish to have the record of your arrest itself expunged.
Sealing of Arrests for Drug Offenses Under California Penal Code Section 851.90
- I was arrested for drug charges in California. Can I get my arrest record sealed?
- Diversion for Drug-related arrests in California
- Sealing of Your Arrest Record After Successful Completion of Drug-related diversion in California
- What Do I Gain From Sealing my arrest record After I Successfully Complete the Diversionary Program?
An arrest for drug charges can lead to severe social consequences. Even after the matter is resolved in criminal court and the defendant has “served their time”, a record of drug charge can have a calamitous effect on their social and professional relationships. Too often, our society takes the wrong attitude when it comes to people suffering from drug addiction and turn them away upon discovery of a drug-related criminal record. Fortunately, California law allows for expungement of charges for drug-related offenses under certain circumstances.
I was arrested for drug charges in California. Can I get this Expunged from my Record?
If you are arrested and charged with a drug-related offense but resolve it though a type of “diversion” or “deferred entry of judgment” in court, you may be able to get your record for this offense expunged if you complete the program requirements. Successful completion of “diversion” or “deferred entry of judgment” in your case will lead to dismissal of the charges against you, and you might be able to get any record of your arrest expunged as well.
Diversion and Deferred Entry of Judgment for Drug-related arrests in California
Some defendants facing drug charges may resolve their cases through either “diversion” or “deferred entry of judgment.” A defendant who chooses this route will plead “guilty” or “no contest” to the offense in exchange for a chance to keep the conviction for that offense from actually entering.
By entering such a plea, the defendant will waive any rights to a speedy jury trial. However, a final “judgment” will not yet enter. When this happens, the court will order the defendant to abide by certain terms and conditions such as drug treatment. The defendant may also be expected to stay arrest or conviction-free for a certain period of time. If the defendant successfully completes all of these conditions, then the case will be dismissed. Under California Penal Code Section 851.90, the defendant may also secure an order “sealing” any record of their arrest for the offense.
Sealing of Your Arrest Record After Successful Completion of Drug-related diversion in California
After successfully completing diversion or deferred entry of judgment for a drug case in California, the court can order any record of your arrest “sealed.” The court can do this on your request, or on the District Attorney’s request. The court can also order the records sealed on its own. When this happens, the court shall give a copy of the order sealing the records to the defendant.
What Do I Gain From sealing my arrest record After I Successfully Complete the Diversionary Program?
Having your record sealed pursuant to Penal Code 851.9 can help to preserve your professional reputation. When the record of your arrest is sealed in this way, then the fact of that arrest cannot be used as a reason to deny any employment, benefit or certificate. You also have the legal right to deny the fact of your arrest. There is one notable exception-an arrest sealed under Penal Code 851.90 can still be considered against you in an application for a job as a peace officer, and you have no legal right to deny its existence on such an application.
If you are arrested on drug charges or concerned about the state of your record after your case is concluded, call for a consultation!
