Does an arrest stay on your record?

People can try and clean up their criminal records, even after a conviction in a process called “expungement.” But what about people who were arrested by never convicted? There is a process for that as well, and it is known as a petition for factual innocence, described in various provisions of Penal Code section 851. It’s important for many reasons, but especially for people seeking a job who are worried that a previous arrest may impact their chances. If a section 851 petition is granted, the arrest record is sealed, which means potential employers won’t have access to the records, and the person can legally represent there has been no arrest.

The factual innocence petition can be used by people:

  • who were arrested but never charged with a crime
  • who were charged with a crime but found not guilty at trial
  • who were convicted at trial but have the conviction reversed on appeal

Getting arrested can cause many problems for a person. But for those who were never charged, or later exonerated, a factual innocence petition will help protect a reputation.

Related case summaries

People v. E.B.
The fact that defendant had obtained section 1203.4 relief did not entitle him to have his arrest record sealed.The trial court did not err in denying defendant’s petition to seal his arrest records pursuant to Penal Code section 851.91. The fact that he had obtained relief under section 1203.4 did not entitle him to have his arrest records sealed as a matter of right.id: 26898
Case number H046693 (6/2/2020)

Related categories:

Post-trial Relief (expungement, 1203.4, etc.) (605)
People v. Maya
Section 1203.4a(a)’s “honest and upright life” provision does not require that a defendant spend time outside of custody before obtaining expungement.A person convicted of a misdemeanor is entitled to expungement of that conviction if, among other things, the person lives “an honest and upright life” during a specified period after the judgment. (Penal Code section 1234a(a).) A person may live such a life even if he or she has been in custody since completing the sentence imposed for the misdemeanor.id: 26765
Case number S255371 (4/3/2020)

Related categories:

Post-trial Relief (expungement, 1203.4, etc.) (605)

About Pat Ford

Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.

Case of the Day

The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.

People v. Meza
Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850
Case number B318310 (4/3/2023)

Related categories:

Exclusionary Rule, generally (good faith exception) (310)
Overbreadth/Staleness (368)