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Arrested But Never Charged With a Crime

Posted by Dmitry Gorin | Jun 19, 2024

Suppose you were arrested in California but never charged with a crime. In that case, can it still appear on your record? It's not uncommon for someone to get arrested and only be released with no charges filed.

Perhaps you were arrested on suspicion of a crime, but there was insufficient evidence for the police to hold you. Or perhaps at your preliminary hearing, the judge or prosecutors decided not to pursue charges.

Arrested in California but Never Charged With a Crime
It's not uncommon for somebody to get arrested and only be released with no charges filed.

Whatever the case, it begs the question: Will the arrest appear on your record even though you were never charged with a crime?

While an arrest without a conviction does not automatically blemish your criminal record, it can still appear in public records, potentially affecting various aspects of your life, such as employment opportunities and personal reputation.

However, if no charges were filed, you can petition the court to have your arrest record sealed, and in some cases, the record will be sealed automatically.

Your criminal record will include not only occasions in which you were convicted of a crime but also instances in which you were arrested under suspicion of a crime. So, even if an arrest does not result in a conviction, a record of that arrest can still appear.

Having an arrest record can negatively affect your job prospects in the same way as a conviction. Thus, you must seek to have your arrest record sealed and destroyed under California Penal Code 851.8 PC.

If police arrested you but no charges were filed following the arrest, you can seek to have that arrest sealed and destroyed three years after the date of arrest.

This can be accomplished by submitting a petition of factual innocence (PC 851.8) to the arresting police agency and then to the court if the arresting agency denies the petition. Often, the arresting police agency will deny the petition, which means you must submit the petition to the court later.

If granted, the arrest will be as if it never occurred. You will no longer need to disclose the arrest to employers or licensing boards; the police or prosecution cannot use it against you. A skilled criminal defense attorney can provide the legal expertise necessary to ensure the best chance of getting a petition of factual innocence granted.

Criminal Records vs. Arrest Records

When you are arrested for any reason, regardless of your guilt or innocence, a record is created of that arrest. However, we must differentiate between a criminal and an arrest record to understand how that record might affect you.

  • A criminal record includes formal charges, convictions, and sentences adjudicated in court. It includes confirmed legal violations and is typically accessed by employers, licensing agencies, and other official bodies during background checks.
  • An arrest record, however, merely documents that law enforcement took an individual into custody. This record can exist even if no charges were filed or were eventually dismissed. Unless and until the record is sealed, an arrest record is maintained in public databases accessible to anyone conducting a thorough search.

Generally, comprehensive background checks focus on criminal records, meaning arrests without convictions typically don't appear. However, specific expanded searches, especially those conducted by government entities or for sensitive positions, can reveal these arrest records.

Sealing Arrest Records Under California Law

California law provides a mechanism to petition for sealing such records under Penal Code Section 851.91 to mitigate the impact of an unjust arrest record. This legal provision allows individuals to request that their arrest records be sealed, effectively treating the arrest as if it never occurred.

Sealing Arrest Records Under California Law

PC 851.91 says, "(a) In any case where a person has been arrested, and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest. A copy of the petition shall be served upon the prosecuting attorney of the county or city having jurisdiction over the offense. The law enforcement agency having jurisdiction over the offense, upon a determination that the person arrested is factually innocent, shall, with the concurrence of the prosecuting attorney, seal its arrest records and the petition for relief under this section for three years from the date of the arrest and after that destroy its arrest records and the petition.

(a) A person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest and related records sealed, as described in Section 851.92.

(1) For purposes of this section, an arrest did not result in a conviction if any of the following are true:

(A) The statute of limitations has run on every offense upon which the arrest was based, and the prosecuting attorney of the city or county that would have had jurisdiction over the offense or offenses upon which the arrest was based has not filed an accusatory pleading based on the arrest.

(B) The prosecuting attorney filed an accusatory pleading based on the arrest, but concerning all charges, one or more of the following has occurred:

(i) No conviction occurred, the charge has been dismissed, and the charge may not be refiled.

(ii) No conviction occurred, and the arrestee was acquitted of the charges.

(iii) A conviction occurred but has been vacated or reversed on appeal, all appellate remedies have been exhausted, and the charge may not be refiled."

What is the Eligibility for Sealing an Arrest Record?

An arrest record can be sealed if it did not result in a conviction, which includes scenarios where:

  • The statute of limitations has expired without charges being filed.
  • Charges were filed but subsequently dismissed or acquitted.
  • A conviction was overturned on appeal with no possibility of refiling the charge.

However, there are exclusions. Individuals are not eligible for having an arrest record sealed if:

  • They can still be charged with the offense.
  • The arrest involved serious crimes like murder unless acquitted or found factually innocent.
  • There was intentional evasion of justice, such as identity fraud or fleeing the jurisdiction.

It should also be noted that PC 851.91 allows that even if charges were filed, an arrest record can still be sealed if the charges were ultimately dismissed or acquitted or if you successfully completed a diversionary program that resulted in a dismissal of the charges.

Automatic Sealing Under Penal Code 851.93

Among other record sealings, California's Penal Code Section 851.93 stipulates that certain arrests that did not result in a conviction may be automatically sealed after a specified period. This automatic process reduces the burden on individuals to petition the court actively. Yet, if an arrest still appears on public records, you may need to file a petition under Penal Code 851.91 to ensure it is sealed.

How Can You File a Petition for Sealing an Arrest Record?

Filing a petition for sealing in California involves several steps, such as the following:

  • Gather Documentation: Collect all relevant documents, including the arrest report, court documents, and any evidence of dismissal or acquittal.
  • Complete the Petition: Fill out the Petition for Sealing (Form CR-409) with accurate and detailed information about the arrest.
  • File the Petition: Submit the petition to the court where the arrest occurred. There may be filing fees associated with this process.
  • Court Hearing: A court hearing may be required in some cases. The petitioner must present their case, and the judge will decide whether to grant the petition based on the evidence provided.

The petition must also articulate why sealing the arrest would serve justice, mainly if the arrest involved repeated patterns of domestic violence, child abuse, or elder abuse, where a pattern is defined as multiple arrests or convictions within three years.

What is the Role of a Criminal Defense Attorney?

Petitioning to have your arrest record cleared may seem straightforward, but it's not as simple as it looks. Your chances of success increase greatly if you hire a skilled California criminal defense attorney to represent you in this matter. An attorney can:

  • Ensure all documentation is accurate and complete.
  • Represent you effectively during hearings.
  • Present evidence and arguments supporting your petition.
  • Navigate potential challenges from the prosecuting attorney or the arresting agency.

Contact our California criminal defense law firm for more information. Eisner Gorin LLP is based in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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