Sealing and Destruction of Records (California Penal Code 851.8)

With more sophisticated computers and increasing laws designed to be tough on criminal offenders, privacy is fast becoming a concern for everyone; especially individuals with a criminal record. While they say we learn from our mistakes, no one wants their criminal records public. Depending on the circumstances, it may be possible to get criminal records sealed. Once records are sealed it eliminates public access. In these cases, the offense is deemed not to have occurred and the records are subsequently destroyed. The skilled California defense lawyers of The Kavinoky Law Firm are experienced in all aspects of petitioning to have criminal records sealed and destroyed.

Sealing and destruction of records is a viable option in certain cases and more difficult in others. Under California Penal Code 851.8, an innocent person arrested for or charged with a crime may be able to have the records sealed by obtaining a declaration of “factual innocence.” A finding of factual innocence is generally initiated by submission of a motion and requires a judge’s approval.

In general, someone is deemed to be factually innocent if no reasonable cause exists to believe he or she committed the offense. The procedures for obtaining a Certificate of Factual Innocence vary depending on whether formal charges are filed, but the result is the same: All records relating to the arrest and charges must be sealed for three years and must subsequently be destroyed. The arrest is deemed never to have occurred.

Oftentimes arrests occur and the person is released and no formal charges are filed. In these cases, the arrestee can petition for a finding of factual innocence to have the arrest records sealed.

When charges were filed but the case was dismissed, a petition for a finding of factual innocence can be made, but it’s at the discretion of the court and the district attorney to grant relief. When a trial results in an acquittal, the judge may find the person factually innocent and order relief.

There are specific evidentiary and timing issues which are important to maximize a successful finding of factual of innocence. Anyone looking into relief under California Penal Code 851.8 should consult with a California criminal defense attorney.

Even in cases where sealing and destruction of records is appropriate, certain exceptions apply. Transcripts of court proceedings, published appellate opinions, and any records relevant to pending lawsuits are exempted. Records will not be destroyed if the conviction is on appeal, jail time was never served, fines unpaid, probation is incomplete, or there is a bench warrant.

There are certain cases when relief under Penal Code 851.8 can be very useful, including:

• Juvenile misdemeanor arrest and conviction records
• Marijuana arrests and convictions
• Drug diversion agency records

Juvenile misdemeanor arrest and conviction records: Sealing of records is often awarded in cases involving minors. The arrest records of a minor may be sealed if he or she was released for lack of probable cause; the juvenile court dismissed the case, or the defendant was acquitted.

This section does not apply to arrests for sex, drug, or traffic offenses. If the court decides the finding required for relief, the records will be sealed and the proceedings will be deemed not to have occurred.

It is rare for a person under the age of 18 to be convicted of a misdemeanor in adult court but when it does happen, Pen Code §1203.45 provides for the sealing of such records.

Marijuana arrests and convictions: In general, while sealing and destruction of records requires court approval, cases such as minor misdemeanor marijuana convictions will be automatically sealed. Records of marijuana arrests and convictions are automatically destroyed two years after the arrest or conviction in cases involving simple possession.

Drug diversion agency records: PC 851.8 provides that drug diversion agency records will be sealed and destroyed.

Employers generally cannot ask job applicants about arrests or detentions that did not result in conviction; convictions for which the record has been ordered sealed or expunged; expungements or as noted above, or participation in a diversion program.

Applicants for peace officer and healthcare positions are exempted from this rule, and applicants can be asked about arrests for sex or drug offenses. Professions involving young children have also been found to require disclosure for arrests involving sex or drug offenses.

Sealing and destruction of records is a viable option after many California criminal convictions. The experienced California criminal defense attorneys of The Kavinoky Law Firm can determine whether an arrest or conviction can be sealed and destroyed. Contact them today for a free consultation.