Posted in General FAQ'S on July 19, 2017
Carrying a criminal record can complicate many aspects of life after conviction, but having an arrest on your record can cause significant problems. People who are arrested and charged, but never convicted, can have their arrest records sealed, meaning future employers won’t see them during criminal background checks. This system, covered under California Penal Code Section 851.8, exists to prevent wrongly charged individuals from suffering the ill effects of an unjust arrest record.
Under Penal Code Section 851.8, individuals can only have arrest records sealed if they fulfill one of three criteria:
If you find yourself in one of these situations, you can speak with a Riverside criminal defense attorney about drafting a motion of factual innocence. The factual innocence motion is also an asset for individuals who face detainment by police for suspicion of or connection to a crime. A factual innocence motion can have the record of the detainment sealed so it won’t cause problems for the individual later.
Once you and your attorney decide to file a factual innocence petition with the law enforcement agency that arrested you, several things can happen. If the agency accepts the motion, the record is sealed and no longer a concern. In some cases you can have the record destroyed, but this is only necessary and possible for a select few circumstances. If the agency denies the petition, does not respond to the petition within 60 days of receiving it, or if the statute of limitations has expired, your attorney can petition the court handling your case to order the law enforcement agency responsible for the arrest to seal and destroy the arrest record.
After filing a factual innocence petition, you will have to appear for a court hearing to explain your innocence. Essentially, your attorney must show the court that there is no evidence that would cause a reasonable person to believe you are guilty of the charges in question. The arresting officer and prosecutor must provide evidence to substantiate the arrest. After the hearing, the court will then accept or deny your petition.
Once the court approves your factual innocence motion, the Department of Justice, arresting law enforcement agency, and the court will seal all records and evidence pertaining to your case. The law enforcement agency and Department of Justice will hold these sealed records for three years and then destroy them. After your motion is approved, you can legally tell future employers that you have never been charged with a crime, so the arrest record will hold no further sway in your employment opportunities.
Filing a factual innocence motion may seem straightforward, but this is a complex legal process that demands the attention of a professional. If you have an arrest record that you would like sealed and destroyed, meet with a defense attorney as soon as possible to get the process started. Succeeding in your motion requires meeting various strict deadlines and filing requirements, and your attorney should be familiar with the process.
Penal Code Section 851.8 explains the arrest record sealing process, so make sure you familiarize yourself with the text and contact a lawyer to help you navigate the process more easily. An unjustifiable arrest record or misunderstanding with the police shouldn’t cause you problems when you want to find a job, so contact a reliable criminal defense attorney to help you file your factual innocence motion as soon as possible.