Sealing An Arrest Record in California

It’s no surprise that police officers have an enormous amount of power when they are dispatched to a call involving a potential crime, and have to make a decision on whether to arrest someone.  The implications of that decision to arrest can have negative long term effects on a person, especially when charges are never filed.  These negative effects include the arrest ruining a job applicant’s chance of getting a specific job due to the arrest showing up in a background check, or the arrest being posted online on  In addition, an arrest can also affect child custody, professional licensing, and most importantly, a person’s reputation.  So what can a person do to clear his name?  File a petition for factual innocence.

California Penal Code Section 851.8

The applicable law for sealing an arrest record is found in California Penal Code Section 851.8, which if granted, “the arrest shall be deemed not to have occurred”.  The arresting agency is then ordered to issue a written declaration to the arrestee stating that he or she is factually innocent [Penal Code section 851.8(f)].  This relief is even available if the arrestee was charged with a crime, but was ultimately acquitted of the charges.  The burden is placed on the arrestee to prove “no reasonable cause exists to believe that the person committed the offense for which the arrest was made.”

People v. Matthews (1992) 7 Cal.App.4th 1025, 1056

In the Matthews case, the court discussed the burden placed on the arrestee in establishing their factual innocence, and stated: “Establishing factual innocence, within the meaning of Penal Code section 851.8, entails establishing as a prima facie matter not necessarily just that the arrestee had a viable substantive defense to the crime charged, but more fundamentally that there was no reasonable cause to arrest him in the first place. For example, a legal defense which is unrelated to the conduct of the arrestee and his innocence, such as entrapment, may be available not because the defendant is innocent but because it is a lesser evil that some criminals should escape than that the government should play an ignoble part. On the other hand, other legal defenses may be so related to the defendant’s own conduct that the existence of the defense negates a  requisite element of the offense or otherwise eliminates culpability, thereby revealing no reasonable cause to believe the arrestee committed an offense and establishing factual innocence, within the meaning of Penal Code section 851.8.”

Seek the Assistance of an Experienced Attorney

If the arrestee wants to have the best chance of getting his petition granted, he or she should invest in hiring an experienced criminal defense attorney.  If the arrest happened in Orange County, California, an Orange County criminal lawyer  would be able to obtain the necessary form online from the court’s website to start the process.  There are strict rules and time frames that need to be followed, which an experienced attorney would know.  Also, the attorney would be in the best position to advise the arrestee as to the pros and cons of proceeding with the Petition process.  If no charges were filed and the petition is presented to the arresting agency and is denied (which usually happens), the attorney would then file the denied copy with the court and request a hearing date be set to have a judge ultimately decide.  The District Attorney’s office is then provided the opportunity to challenge the petition.

For more information on the petition for factual innocence process to seal arrest records, contact the Kenney Legal Defense Corporation at (855) 505-5588, or fill out a contact form on the firm’s website listed above.


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