San Diego Lawyer to File Your Factual Innocence Petition and Clear Your Record
If you have been arrested by a law enforcement agency but were never convicted of a crime, that arrest will show up on background checks and criminal records on the state and federal level. Future employers will be able to see your arrest record for the rest of your life. The only way to prevent that is by filing a Petition to Seal and Destroy Your Arrest Record (also known as a Factual Innocence Motion) pursuant to Penal Code § 851.8.
How do I seal my arrest record?
Having your arrest record sealed can often be a two-step process. First, you must file a petition with the arresting agency. The arresting agency will often respond within 60 days of receiving the petition. If they decide to seal the arrest record, they must also notify the California Department of Justice. All local and state agencies that have any record of your arrest must seal their records for three years. Once the three years have passed, they must destroy the records.
If the arresting agency denies or ignores your petition, the second step in the process is to file a separate petition with the superior court. The petition filed with the court is known as a Factual Innocence Motion because you are asking the judge to find that you are factually innocent of the crime for which you were arrested.
What happens at the court hearing on my Factual Innocence Motion?
You have the burden of proving that you are factually innocent. To prove your innocence, you may present evidence such as declarations, affidavits, police reports, live testimony by yourself or witnesses, or any other evidence that is relevant and reliable. At the hearing, you must prove to the judge that there is no reasonable cause to believe that you committed the offense for which you were arrested. If you are able to convince the judge that no reasonable cause exists, the burden then shifts to the prosecution to prove that reasonable cause does exist. If the judge still believes no reasonable cause exists, then the court will order all agencies to seal their records of your arrest for three years and thereafter to destroy all records.
If my arrest record is not sealed, can employers see it?
Yes. Arrests show up in criminal background checks. Despite the fact that California law (Labor Code § 432.7(a)) prohibits potential employers from seeking or considering an applicant’s arrest records in the hiring process, it still happens on a regular basis. In today’s economy, it is difficult enough to get a job without an arrest record. To give yourself the best chance at obtaining employment, you should consider having your arrest sealed and destroyed.
To give yourself the best chance of having your arrest record sealed and destroyed, you should hire a lawyer who has experience with the process. At Lounsbery Law Office, PC, we have handled many of these petitions and are often successful at having our clients’ records sealed and destroyed. We would love to have the opportunity to try to help you clean up your arrest record as well. To speak with a San Diego and El Cajon attorney today, call 619-792-1451 or send us an email.