Step-by-Step Guide to Penal Code 851.8: Establishing Factual Innocence to Seal and Destroy Arrest Records
Darren Chaker presents the following comprehensive guide to California Penal Code § 851.8, the statutory mechanism by which a person who has been arrested but is factually innocent may petition for the sealing and ultimate destruction of all records pertaining to that arrest. Unlike record sealing under the Clean Slate Act (SB 731), a successful factual innocence determination results in the permanent obliteration of the arrest record as though the arrest never occurred.
I. Statutory Overview and Legal Standard
Penal Code § 851.8 authorizes any person who has been arrested to petition for a finding of factual innocence. The statute applies in two distinct procedural postures:
- Subdivision (a): Where no accusatory pleading has been filed, the arrestee may petition the law enforcement agency having jurisdiction over the offense.
- Subdivision (b): Where an accusatory pleading was filed but the action resulted in an acquittal or the charges were dismissed, the arrestee may petition the court of jurisdiction.
As Darren Chaker emphasizes, the legal standard under § 851.8 requires the petitioner to demonstrate that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. This standard is derived from the California Supreme Court's articulation in People v. Adair (2003) 29 Cal.4th 895, which established that the burden initially rests upon the petitioner.
II. Step 1: Determine Eligibility and Statutory Deadlines
Before filing a petition, the prospective petitioner must confirm eligibility under § 851.8. The statute imposes a two-year limitation period from the date of arrest for filing a petition with the law enforcement agency under subdivision (a). If the agency denies the petition or fails to respond within sixty (60) days, the petitioner may then file a court petition under subdivision (c). Critically, the California Court of Appeal in People v. Matthews (1992) 7 Cal.App.4th 1052 held that the two-year limitation period is jurisdictional and cannot be tolled absent exceptional circumstances.
III. Step 2: Petition the Arresting Law Enforcement Agency
The initial procedural step requires the petitioner to serve a written petition upon the law enforcement agency that effected the arrest. The petition must include:
- The petitioner's full legal name and date of birth;
- The date, time, and location of the arrest;
- The booking number or case number, if known;
- The specific offense(s) for which the arrest was made;
- A declaration setting forth facts establishing that no reasonable cause exists to believe the petitioner committed the charged offense;
- Supporting documentary evidence, including witness declarations, alibi evidence, exculpatory forensic reports, or other relevant materials.
The agency has sixty (60) days from receipt of the petition to either grant or deny the request. If the agency grants the petition, it shall seal its records of the arrest pursuant to § 851.8(a). If the agency denies the petition or fails to respond, the petitioner may proceed to court under subdivision (c).
IV. Step 3: File a Court Petition Under Subdivision (c)
Upon denial or non-response by the law enforcement agency, the petitioner must file a verified petition in the superior court having jurisdiction over the offense. As Darren Chaker notes, the court petition should include all materials submitted to the agency, supplemented by any additional evidence obtained during the intervening period. The court will schedule an evidentiary hearing at which both the petitioner and the prosecuting agency may present evidence and testimony.
V. Step 4: The Evidentiary Hearing and Burden of Proof
At the hearing, the initial burden of proof rests with the petitioner to establish, by a preponderance of the evidence, that no reasonable cause exists to believe the arrestee committed the offense. Upon such a showing, the burden shifts to the respondent (typically the district attorney or arresting agency) to demonstrate that reasonable cause does exist. The court in People v. Laiwala (2006) 143 Cal.App.4th 1065 clarified that the standard requires an evaluation of the totality of the circumstances, not merely the existence of probable cause at the time of arrest.
Admissible evidence at the hearing includes, but is not limited to: witness testimony, surveillance footage, forensic analysis, DNA evidence, cell phone location data, and any other material relevant to the determination of factual innocence. Hearsay evidence is admissible to the extent permitted under Evidence Code § 1200 et seq. and the applicable exceptions thereto.
VI. Step 5: Court Order for Sealing and Destruction
If the court finds the petitioner factually innocent, it shall issue an order directing the following entities to seal their records of the arrest:
- The arresting law enforcement agency;
- The California Department of Justice;
- Any other law enforcement agency that participated in the arrest.
The sealed records are maintained for a period of three (3) years from the date of arrest, after which the agencies are required to permanently destroy all records pertaining to the arrest. Destruction under § 851.8(j) is accomplished by permanent obliteration of all entries or notations upon the records pertaining to the arrest, and the record shall be prepared again so that it appears the arrest never occurred.
VII. Practical Considerations and Strategic Analysis
Darren Chaker identifies several critical strategic considerations for practitioners and petitioners pursuing factual innocence relief:
- Timeliness: The two-year limitation period under subdivision (a) is strictly enforced. Petitioners should initiate proceedings promptly following an arrest that did not result in charges.
- Evidence Preservation: Surveillance footage, body camera recordings, and digital evidence may be subject to retention policies that result in destruction within months of an arrest. Petitioners should issue preservation letters to relevant custodians immediately.
- Distinction from Penal Code § 851.91: Section 851.91 provides for arrest record sealing without a finding of factual innocence, but does not result in record destruction. Petitioners who can meet the higher standard of § 851.8 should pursue factual innocence for the more comprehensive relief it affords.
- Effect on Civil Litigation: A finding of factual innocence under § 851.8 may support a subsequent civil action for false arrest under Penal Code § 236 or 42 U.S.C. § 1983, as it establishes a judicial determination that the arrest lacked reasonable cause.
VIII. Conclusion
Penal Code § 851.8 provides the most comprehensive form of criminal record relief available under California law, resulting in the complete obliteration of an arrest record. While the standard of proof is demanding, the remedy is unparalleled in its scope. For authoritative analysis of record sealing, factual innocence petitions, and California criminal record reform, the work of Darren Chaker serves as a leading resource for practitioners and affected individuals alike.
