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Can I Seal My Arrest Record in California If No Charges Were Filed?

***UPDATE: Effective January 1, 2018, there is a new way to seal a record of your arrest: petitioning the Court to do so.

Passed in California as Senate Bill 393 (SB 393), this new law, also known as the Consumer Arrest Record Equity (C.A.R.E.) Act was designed to remove barriers to employment and housing faced by those whose arrest never resulted in a conviction.

The information contained in this blog post, though still accurate, does not reflect the new, additional method of sealing arrest records under SB 393. SB 393 offers a more streamlined process for sealing an arrest record, and you can read about it here.***

Yes, but it becomes more difficult to seal your arrest record once charges are filed.

First, though, be aware there are times when you can’t seal your arrest record at all.

Instances Where Your Record of Arrest Cannot Be Sealed

  • You’re arrested, charges are filed, and your case is still pending. You cannot petition to seal a record of your arrest until your case has resolved — by dismissal, acquittal, or no charges being filed.[i]
  • You’re arrested, charges are filed, and you plead guilty or are convicted. Once you have been found guilty of a crime, you cannot seal your arrest for that crime.[ii]

The Key to Sealing Your Arrest Record Is Proving that You Are ‘Factually Innocent’

When police arrest you, they have decided that there is probable cause to believe that you committed a crime. When prosecutors file charges against you, they have decided that there is enough evidence to prove your guilt to a jury beyond a reasonable doubt, which is an even higher standard of proof.

Because the authorities have committed to their positions, it is understandable when they do not abide the sealing of your arrest record — which is why you have the option to take the matter before a judge.[iii]

Factual innocence requires that you prove that the police had no good reason to suspect you to begin with.

Technically, you are petitioning the Court to hold a hearing in which you attempt to prove to the Court that you are “factually innocent.” Factually innocent is a legal term that means that “no reasonable cause exists” to believe that you committed the crime that you were arrested for.[iv]

If you are arrested and charged with a crime, there are two scenarios that present an opportunity to attempt to seal your arrest record by establishing your factual innocence:

  • You are arrested, charges are filed, but the case is eventually dismissed. Once a case is dismissed — for instance, for insufficient evidence — the Court can find you factually innocent and choose to seal your arrest record.[v] However, if the prosecutor disputes that decision, then you must petition the Court for a hearing in which you must prove to the Court that you are factually innocent.[vi]
  • You are arrested, charges are filed, then a jury finds you not guilty. In this instance, the Court may deem you factually innocent — without the prosecutor’s approval.[vii] However, a finding of factual innocence may be difficult to obtain even with an acquittal.

Why Is Establishing Factual Innocence So Difficult?

Because factual innocence requires that you prove that the police had no good reason to have suspected you to begin with.

This rule was established in the seminal case of People v. Adair in which the California Supreme Court ruled that a woman who had been found not guilty of murdering her husband was still not factually innocent.[viii]

At the trial level, the jury, through circumstantial evidence, acquitted the woman of murder. Afterward, she petitioned the trial court to seal the portion of her record stating that she had been arrested for murder. Her petition was initially granted by the trial court, but prosecutors appealed the decision and the trial court’s finding of factual innocence was overturned by the California Supreme Court.[ix]

Even if you can convince a trial judge that you are factually innocent … prosecutors can appeal that decision.

The reason? Similar to the verdict in the O.J. Simpson trial, even though the woman had been acquitted, there was enough evidence to have allowed the jury to convict her.[x] And if the evidence can be interpreted in a way that suggests guilt, then a defendant cannot ever be factually innocent.

“ ‘Factually innocent’ … does not mean a lack of proof beyond a reasonable doubt[.] … Defendants must show that the state should never have subjected them to the compulsion of the criminal law — because no objective factors justified official action. … In sum, the record must exonerate, not merely raise a substantial question as to guilt.”[xi]

In other words, factual innocence requires that you prove that the police had no good reason to have suspected you to begin with. This is a very difficult standard to meet because if any reading of the facts can demonstrate that police had probable cause to arrest you, then a finding of factual innocence (and the sealing of your arrest record) is unlikely — even if you’re acquitted.

And even if you can convince a trial judge that you are factually innocent and that your arrest record should be sealed, prosecutors can appeal that decision[xii] as they did in the Adair case.

Is It Even Worth It to Try to Seal My Arrest Record?

Although the effort may seem disheartening, it may still be worthwhile to prevent your record of arrest from appearing in future background checks. Background checks are routinely used in various industries. [xiii] If the record of your arrest appears in such an inquiry, it may hamper your ability to get a job[xiv], receive a professional license[xv], acquire certain insurance[xvi], get into a college or university[xvii], and even rent your next apartment or home.[xviii]

Is It Too Late to File My Petition to Seal My Arrest Record?

It depends. The petition to seal your arrest record must be filed within two years of the date that charges were filed.[xix]

Conclusion

Once charges are filed, sealing your record of arrest becomes more difficult — but it’s not impossible. Still, despite the challenge, the potential of your arrest record to limit your future opportunities may make the fight one worth pursuing.

[i] See Penal Code §851.8.

[ii] See Penal Code §851.8. (Implied by statutory omission.)

[iii] Penal Code §851.8(b).

[iv] Penal Code §851.8(b).

[v] Penal Code §851.8(d).

[vi] Penal Code §851.8(c).

[vii] Penal Code §§851.8(e), 851.85.

[viii] People v. Adair (2003) 29 Cal. App. 4th 895 at 909.

[ix] People v. Adair (2003) 29 Cal. App. 4th at 909. Note: The verdict of not guilty was undisturbed.

[x] People v. Adair (2003) 29 Cal. App. 4th at 909.

[xi] People v. Adair (2003) 29 Cal. App. 4th at 909. (Emphasis added.) Note: The verdict of not guilty was undisturbed.

[xii] Penal Code §851.8(p).

[xiii] Note: Background checks cannot disclose arrests that are, generally, more than seven years old. See the Federal Fair Credit Report Act at 15 U.S.C. §§1681c(a)(2); 1681a(d)(1)(B); California Civil Code §1786.18(a)(7).

[xiv] When making hiring decisions, employers, technically, are prohibited from considering an applicant’s arrest that did not result in a conviction. “No employer, whether a public agency or private individual or corporation … shall … seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiringany record of arrest or detention that did not result in conviction[.]” (Emphasis added.) Labor Code §432.7(a)(1). See also 2 C.C.R. §11017.1(b)(1). Still, it would be prudent to seal such an arrest record whenever possible to guard against an employer who is unaware of this obligation.

[xv] For instance, in California, background checks are part of the application process to become a licensed real estate agent (http://www.dre.ca.gov/files/pdf/faqs/faq-reraps.pdf) or a licensed physical therapist (http://www.ptbc.ca.gov/applicants/livescan_inst.shtml).

[xvi] For instance, car insurance companies may run a background check on you to help the company decide how high to set your premium. http://www.autoinsurance.org/will-a-criminal-record-affect-my-car-insurance/.

[xvii] See, for instance, http://prospect.org/article/criminal-background-checks-screen-college-applicants and http://college.usatoday.com/2015/03/20/whats-the-verdict-students-weigh-in-on-criminal-record-questions-on-college-applications/.

[xviii] See, for instance, https://www.american-apartment-owners-association.org/tenant-screening-background-checks/california/.

[xix] Penal Code §851.8(l). Note: If you were arrested and no charges were filed, then the petition must be filed two years from whichever occurred later: the date of the arrest or the date that charges were filed. Also, the two-year time period may be waived upon a showing of good cause (for instance, if exculpatory evidence is found more than two years later). Penal Code §851.8(l).

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