Sealing and Destroying Adult Arrest Records in California: Factual Innocence Remedy
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UPDATED: Jun 19, 2018
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In California, “sealing” is the process of permanently erasing and destroying your arrest record. Record sealing can be granted for any arrest that did not result in a conviction. Once an order to seal and destroy records is granted, current and potential employers will not have access to any of the records that show the arrest.
You are eligible to seal your arrest records in California if you were arrested as an adult and were:
1. Not charged with the crime, or
2. Arrested and charged, but the charges were later dismissed, or
3. Arrested and charged, but were found not guilty.
Sealing is not automatic. You have to be pro-active, as the burden is on you to show that you are “factually innocent” of the charges. (For this reason, it might make sense to work with an attorney who has expertise in this area to help you cut through any number of problems that can arise.)The Court must find that there is no reasonable cause to believe that you committed the crime.
If the Petition for Factual Innocence (“PFI”) is granted, all arrest and prosecution records will be sealed. The PFI order, the arrest record, fingerprints, mug shots, the Department of Justice records and any other agency that has arrest records are sealed for three-years and then physically destroyed. It is, understandably, harder to get than simple expungement relief.
A PFI must be filed within two years of the arrest or the filing of charges, whichever is later. The court can waive these time restrictions if you have a valid reason for the delay.
Many police departments designate a “factual innocence liaison officer” who can help explain the department’s practices with respect to PFIs.
Process for Sealing
The procedure for making this request differs depending upon whether charges were filed against you following your arrest.
1. If No Charges Filed After Arrest: If no charges were filed following an arrest, you must first serve the PFI on the local arresting law enforcement agency, and give a copy to the county District Attorney. If the arresting agency ignores the PFI, you must wait until 60 days after the running of the statute of limitations to file the PFI with the court.
2. If Charges Filed After Arrest: If an arrest was made and charges filed, you must wait until the charges are resolved. If there is a dismissal or acquittal, you can file a PFI immediately.
The court reviewing your PFI will first look at the underlying police report, declarations, affidavits, or other relevant and reliable evidence. If the prosecutor opposes the petition, the court will review the reasons for this opposition. You must give your reasons, backing evidence with statements from witnesses who know you are innocent of the crime as well as any additional documentation to help prove your innocence, such as letters of your good character, letters of recommendation, diplomas, awards and declarations.
For more information on California criminal expungements, see the following articles: