Arrested But Not Convicted

In California, section 432.7 of the Labor Code states that no employer shall ask an applicant for employment to disclose information concerning an arrest or detention which did not result in a conviction or referral to/participation in a diversion program for any condition of employment including hiring, promotion, and termination.

You have two years from your arrest (which did not lead to conviction) to seal these records. If you exceed the two years, the court will ask for an explanation on why you waited so long.

The procedure for sealing these records differs depending upon whether an accusatory instrument, usually called an “indictment” has been filed. For arrests occurring on or after January 1, 1981, you must usually petition to have your records sealed within two years of the arrest date.  The court may extend this time limit if you have a good reason for delay.

Here is a summary of the steps you usually have to take to seal the records of an arrest that did not lead to conviction:

1. Contact the proper entity and ask what the procedure is for getting an “arrest-only” case sealed:

If an indictment has not yet been filed, contact the law enforcement agency that arrested you.

If an indictment has been filed, contact the court that dismissed the indictment.

2. Prepare a petition to “seal and destroy” arrest records for every case you wish to have sealed. Make three copies of the petition and order. The original goes to either the court clerk or the law enforcement agency, one copy goes to DOJ, one copy goes to district attorney’s office, and one copy is for your records.

3. Take the original and one copy to the district attorney’s (DA’s) office. The law requires the court to wait until the DA has had at least ten days notice of your request to have a case sealed in case the DA would like to object. In some small courts, the court clerk will do this for you, while in others you will have to notify the DA yourself. Be sure to ask the court clerk whether you need to  contact the DA or not. The DA will probably have an office either in or near the court. Give the DA’s office both the copy intended for it and the original “Received,” so the court clerk will know you gave the DA a copy.

4. Take the original copy of the sealing petition papers to the law enforcement agency or court clerk. What happens next depends upon whether an indictment has been filed:

If an indictment has not yet been filed, a hearing is generally not required. Your records will be sealed for 3 years from the date of arrest, and will then be destroyed, if you are determined to be “factually innocent.” You can request an appeal if your petition is denied.