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Seal and Destroy Drunk Driving Arrest Records

HOJ2.jpgIf you were arrested for DUI in San Diego but criminal charges were never filed, the case was eventually dismissed in court, or you were acquitted after a jury trial, you may be able to have your arrest records sealed and destroyed under California Penal Code Section 851.8.

Why would you want to do this? Criminal records are stored indefinitely unless law enforcement is ordered to destroy them. In addition, they are public records so they can be found in any criminal background check. And, in the age of computers, these records are easy for anyone to find which can cause you difficulty in gaining employment, housing, a state license, etc.

If you are successful, you can answer any question about whether you have been arrested for a crime by saying, “No, I have never been arrested.” So you want to try to get them sealed and destroyed.
The motion must be filed within two years of the date of arrest or the filing of the accusatory pleading, whichever is later. But, if you file beyond the two years, the judge may still grant the motion if you can show good cause.

The process to seal and destroy records can be done in one or two steps. If you were arrested but the prosecutor did not file charges, you must first file the petition with the law enforcement agency that arrested you. If the police agency believes you are factually innocent of the crime, they will seal the arrest record for three years and then destroy them themselves without further action needed by the courts.

If they refuse to grant your petition, or if they do not respond within 60 days of being served with your papers, you can then petition the court for relief. In addition, if charges were filed in court and then dismissed, or you were acquitted by a jury, you can petition the court directly for relief, skipping step one.


The judge will make a determination of your factual innocence based on the information in your arrest record. This is not just substantial doubt as to your guilt. The court must find that no reasonable cause exists to believe that you committed the offense for which the arrest was made, (see People v. Medlin (2009) 178 Cal.App.4th 1092, 1101).

The initial burden to show factual innocence is on the person bringing the motion, the defendant. Therefore, you want to hire an experienced criminal defense attorney to assist you with the proper drafting and arguing of the motion before the court. If the burden is met, then the prosecutor may oppose the motion and show reasonable cause did in fact exist.

If the judge finds in your favor, the court will order your arrest record sealed and destroyed. This means all law enforcement, including local, state, and federal agencies must destroy the records of arrest and the request to destroy such records.

If you have questions about sealing and destroying your arrest records, call the Law Offices of Susan L. Hartman today. We offer a free, confidential phone consultation, so you can learn about your rights and options with no obligation. Call us at 619-260-1122 or use the “Contact Us” form on this page.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a criminal defense attorney in your area.