April 11, 2018 By Paul Wallin

The Burden of Proof When Sealing Your Arrest Record (PC 851.91)

On January 1, 2018, a new law enacted in California made it easier than ever to seal an arrest record. Under California Penal Code Section 851.91, you can petition the court to have your arrest record sealed if any of the following apply to your case:

  • No criminal charges were filed based on the arrest
  • Criminal charges were filed but later dismissed
  • You were acquitted at trial
  • You were convicted, but your conviction was vacated or overturned on appeal; or
  • You successfully completed a pretrial diversion or pre-sentencing program

Before PC 851.91 took effect, you were still able to pursue having your arrest record sealed via a “factual innocence motion.” However, having a factual innocence motion granted under PC 851.8 is often a difficult thing to accomplish.

Let’s take a look at the differences between sealing arrest records under PC 851.91 and PC 851.8.

The Burden of Proof for a Factual Innocence Motion (PC 851.8)

If you are seeking a factual innocence motion under California Penal Code Section 851.8, the burden of proof is on your experienced criminal defense attorney to show that there is no reasonable cause to believe you committed the offense for which the arrest was made, even if you were never charged with a crime.

In simpler terms, it is up to your attorney to prove to the court that the facts of your case show that you did not commit the crime.

If your factual innocence motion is granted, the record of your arrest will be sealed for three years and then destroyed.

This process is completely different from sealing your arrest record under California’s new law, PC 851.91.

The Burden of Proof for a PC 851.91 Motion

The process for filing a motion to seal your arrest record under PC 851.91 is very different. Once your petition is filed, the prosecuting attorney and the law enforcement agency that arrested you must be served with a notice of the motion. The prosecution has the option to request a hearing.

If a hearing is requested, the court will review the record of your arrest to determine whether the interests of justice are served by granting your motion. However, unlike a factual innocence motion, you do not need to prove that there is no reasonable cause to believe you committed the crime. Instead, your attorney only needs to show the judge that the arrest did not result in a conviction.

The burden is on the prosecution to prove to the court that it is not in the best interests of justice to grant your petition to seal your arrest record.

Wallin & Klarich Can Help You File a Motion to Seal Your Arrest Record Today

If you were arrested for a crime and were not convicted, you may be able to end the negative consequences of having an arrest record. Our attorneys at Wallin & Klarich have been successfully representing clients in post-conviction matters for more than 40 years. Let us help you find out if you are eligible to have your arrest record sealed today.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and Riverside, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Call our law firm today at (877) 466-5245 for a free phone consultation. We will get through this together.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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