Law Office of David P. Shapiro - San Diego Criminal Defense Attorney




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Even in situations where no charges are filed or the case filed against you is dismissed, arrests still show up on many background checks. However, you may be eligible to have your arrest record sealed under two specific Penal Code sections: 851.8 and 851.91.

The first option is to petition for a certificate of factual innocence under California Penal Code section 851.8, whereby an individual requests the court to make a finding they did not commit a crime for which they were detained, arrested, or charged, while never convicted. The individual requesting the petition has the burden to show that they are factually innocent of the crime. If the petition is granted, the police agencies must seal and destroy all records of the arrest. One caveat is that the record is not destroyed immediately, rather the record is sealed approximately ninety days upon successful petition and then destroyed after three years of the date of arrest. This includes destroying arrest reports, any booking information, mugshots, court records regarding the arrest, and any evidence collected or gathered pursuant to the arrest. It is important to note that there is a two-year statute of limitation on this petition, meaning that you must request this petition within two years of the initial arrest.

The second option is petitioning the court to seal your arrest record under California Penal Code section 851.91.  Under PC 851.91, you can request to seal your arrest record if any of the following situations apply:

    • You were arrested but no charges were filed;
    • You were arrested and charged, but the charges were dismissed;
    • You completed diversion and the charges were dismissed;
    • You went to trial and were found not guilty.

Once your arrest records are sealed, they will no longer be available to the public. But some government entities (i.e. law enforcement) will still be able to see the arrest records despite them being sealed.

Petitioning under section 851.91 is more expansive than petitioning under section 851.8 because there is no burden to prove “factual innocence.”  Section 851.8 involves individuals who are “factually innocent” of the crimes, meaning “no reasonable cause” exists to believe that they committed the offense and that they should never have been arrested in the first place. Section 851.91 involves individuals who are “legally not guilty” of the crime they were arrested for, meaning they were never convicted of any crime.

If all else fails, or if you are in a time crunch, there is always the option to hire an experienced criminal defense firm to provide a letter explaining the content and context of the report showing the arrest to any prospective employer.  Typically, background checks do not go into much detail regarding arrests and criminal convictions, so having an experienced criminal defense attorney break everything down and explain what happened may alleviate the concerns of the agency running the background check. An employer or any third party looking at a prospective applicant’s criminal history may not understand that a prior arrest did not result in a conviction, or even criminal charges having been filed. Often, these reports are difficult to comprehend, even for criminal defense attorneys, let alone those looking at unfamiliar penal codes and acronyms.This lack of understanding may unfortunately be a reason why some prospective applicants do not get the job or apartment they want, or even the professional license they worked so hard for.

Learn more about criminal background checks from our Associate Attorney Ally Keegan in this video.

If you are looking to seal your arrest record, make sure you hire a quality, locally experienced, criminal defense law firm to maximize your chances at success.  We are just one phone call away at (619) 295.3555.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.