A new California law allows people who were arrested but never convicted to have their California arrest records sealed as a matter of right (automatically). Sealing an arrest means the record will not show up on most criminal background checks in California, other than to law enforcement.1
The new law originated as California Senate Bill 393, which Governor Jerry Brown signed into law on October 11, 2017. SB 393 is now codified in several Penal code sections, including California Penal Code 851.87 PC. Penal Code 851.87 allows people to have their arrest record sealed as a matter of right when:
- No criminal charges were ever filed,
- Criminal charges were filed but later dismissed,
- The defendant was found “not guilty” (acquitted) in a jury trial,
- The defendant's conviction was vacated or overturned on appeal, or
- The defendant successfully completed a pretrial diversion or pre-sentencing program, such as Prop 36 drug treatment or Penal Code 1000 deferred entry of judgment.
An exception to sealing an arrest record as a matter of right is when the person arrested has a history of arrests and/or convictions for:
But even in these cases, an arrest can still be sealed if a judge determines that doing so would serve the interests of justice.
To help you better understand how to seal and destroy an arrest record in California, our California criminal defense lawyers discuss the following, below:
- 1. What are the benefits of sealing an arrest record under SB 393 / PC 851.87?
- 2. Why was California SB 393 needed?
- 3. Who is eligible to seal an arrest under Penal Code 851.87?
- 4. What does it mean to seal an arrest “as a matter of right”?
- 5. Who is NOT eligible to have an arrest record destroyed in California?
- 6. What counts as a "pattern" of domestic violence or abuse for purposes of PC 851.87?
- 7. When can a sealed arrest record be legally used in California?
- 8. Is there a deadline for moving to seal my California arrest record?
- 9. What is the process for sealing and destroying California arrest records?
- 10. How long does it take to seal and destroy an arrest record?
- 11. What remedy do I have if a sealed arrest record is released?
- 12. What is the difference between sealing an arrest records and sealing a juvenile record?
Criminal records are public records. This means that anyone can access another person's criminal history.
Prospective employers, apartment owners, state licensing agencies, insurance companies -- even potential dating partners -- can run a background check and see someone's criminal history. Such people may not care whether an arrest was justified or resulted in a conviction.
California's "ban the box" law (codified in AB 1008) prohibits employers from considering a job applicant's arrests that did not ultimately lead to conviction. Again, however, employers may dismiss some job candidates because of their arrest records without ever stating this.
But once an arrest record is sealed under PC 851.87, members of the public will no longer be able to see it. The arrest record, police investigative reports, photos, fingerprints and court records will be inaccessible except for limited use by the state of California or criminal justice agencies.
Before enactment of SB 393, it was difficult for someone whose arrest did not result in a conviction to get the arrest record sealed. The person essentially had to prove to a judge that he or she was factually innocent -- even when the prosecutor never filed charges or the charges were later dismissed.2
The arrest would then show up on the criminal background checks run by potential employers, landlords and others, leading to unfair discrimination against innocent people.
Under the new law, all a person must do is demonstrate to a judge that the arrest did not result in a conviction. The burden then shifts to the prosecutor to prove that the applicant is NOT entitled to have his or her record sealed (for instance because the person has a background of domestic violence).
Penal Code 851.87 gives people the right to have an arrest record sealed as long as their arrest did not result in a conviction. For purposes of PC 851.87, an arrest did not result in a conviction if any of the following apply:
- No charges were filed and the statute of limitations on each possible charge has expired;3
- Charges were filed but they were later dismissed and cannot be refiled (for example, as the result of a Penal Code 995 motion);4
- Charges were filed but the defendant was acquitted (found "not guilty") at trial;5
- The defendant was convicted, but the conviction was vacated or reversed on appeal and the charge(s) may not be refiled;6 or
- Charges were dismissed after the defendant successfully completed a pretrial or pre-sentencing program such as drug diversion.
Note that only arrests that did not result in a conviction can be sealed. People who have been convicted of a crime may be able to get a conviction expunged under California Penal Code 1203.4 PC.
Expungement is a more difficult process since the defendant has pleaded guilty or “no contest” to, or been convicted of, a crime.
Under the old law (Penal Code 851.8 PC) the person who was arrested had the burden of proving that he or she was “factually innocent.”
SB 393 / PC 851.87 shifts the burden of proof to the prosecutor to prove that someone is not entitled to seal their record -- for instance due to a pattern of domestic violence or because charges can still be filed.
Almost everyone else is entitled to have their arrest records sealed as a matter of right (automatically). The key is that the arrest did not result in a conviction and no exceptions apply.
A person is not eligible to have an arrest record sealed if any of the following apply:
- He or she may still be charged with any of the offenses upon which the arrest was based;7
- The arrest was for murder or another crime for which there is no statute of limitations (unless the person was acquitted or found factually innocent of the charge);8
- The person was not charged because he or she intentionally evaded law enforcement efforts to prosecute the arrest, such as by absconding from the jurisdiction.9
- The person evaded efforts to prosecute the arrest by engaging in identity fraud and was subsequently charged with a crime for that act of identity fraud.10
People are not entitled to seal a California arrest as a matter of right if their criminal record shows a “pattern” of:
- Domestic violence,
- Child abuse, or
- Elder abuse.
Under SB 393 and new California Penal Code 851.91 a “pattern” is defined as two or more convictions, or five or more arrests, within a three-year period.11
However people who fall into this category can still petition to have their records sealed on the grounds that doing so would “serve the interests of justice.”
In determining whether the interests of justice would be served by sealing an arrest, the judge may consider any relevant factors, including (but not limited to):
- Hardship to the petitioner caused by the arrest that is the subject of the petition;
- Declarations or evidence regarding the petitioner's good character;
- Declarations or evidence regarding the arrest; or
- The petitioner's record of convictions.
Although sealing a record effectively destroys it for most purposes, it does not entirely cease to exist.
The sealed arrest may be pleaded and proved if the petitioner is subsequently prosecuted for any other offense.12
Additionally, a criminal justice agency may, in the regular course of its duties, access and disclose the arrest to other law enforcement agencies to the same extent as if it had not been sealed.13
Sealing also does not relieve the petitioner from:
- Any existing duty to register as a sex offender pursuant to California Penal Code 290 PC;
- Any legal prohibition against holding public office that may result from the arrest;14
- Any prohibition against owning or possessing a firearm or susceptibility to conviction for violating California's “felon with a firearm” law;15 or
- The obligation to disclose the arrest as otherwise required by law in response to a direct question on an application for:
- Public office,
- Employment as a peace officer,
- Licensing by any state or local agency, or
- A contract with the California State Lottery Commission.16
Finally, it should be noted that sealing an arrest applies solely to the specific arrest being contested. It does not erase one's entire criminal record. People must submit a separate petition for each arrest on their record that did not result in a conviction.
Under prior California Penal Code 851.8 people had just two years from the later of their arrest or the filing of charges to petition to seal their arrest record. Penal Code 851.87 contains no time limit for petitioning.
However, the new law has not yet been tested in court.
Accordingly we recommend filing a petition to seal an arrest as soon as soon as it is no longer possible for the prosecutor to file or refile charges.
An experienced California criminal lawyer can help you determine when you are eligible to file for relief.
A petition to seal an arrest record in California must be filed either:
- In the court in which charges based on the arrest were filed or,
- If charges were not filed, in the city or county in which the arrest occurred.17
The petition must then be legally served on both:
- The prosecuting attorney of the city or county in which the arrest occurred, and
- The law enforcement agency that made the arrest.18
The petition must include the following information:
- The petitioner's name and date of birth.
- The date of the arrest for which sealing is sought.
- The city and county where the arrest took place.
- The name of the law enforcement agency that made the arrest.
- Any other information identifying the arrest, such as a case or court number.
- The alleged offenses upon which the arrest was based or charges were filed.
- A statement that the petitioner is entitled to have his or her arrest sealed either as a matter of right or in the interests of justice, as applicable.
- If the petition is based on the interests of justice, a statement of how those interests would be served by granting the petition and declarations in support.19
If the D.A. contests the petition the court will schedule a hearing.
The county in which you live will determine whether you must personally appear in court for the proceedings or whether your criminal defense attorney can appear on your behalf.
At the hearing the judge will examine the arrest record and, if necessary, evidence of why sealing is in the interests of justice.
Because the judge has so much discretion in deciding whether to grant or deny your motion to seal and destroy your California arrest records -- and because the judge can deny your motion with prejudice so that you may not re-file your request -- it is critical to hire a skilled California criminal defense attorney.
A responsible attorney will thoroughly research your case and make sure all paperwork is done correctly the first time to ensure that no time is lost due to incomplete or inadequate forms. S/he will also conduct the PC 851.87 hearing and argue your case to the judge.
It typically takes about ninety (90) days after filing a petition to get a court order to seal an arrest record in California.
Within 30 days of the court's issuance of the order to seal an arrest record, the court will notify:
- The law enforcement agency or agencies that made or participated in the arrest,
- The law enforcement agency that administers the master criminal history records, and
- The California Department of Justice.
The petitioner's master criminal record and court record will then be updated to note that the arrest has been sealed. The file will be stamped that the record may not be released outside the criminal justice sector.
The responsible local law enforcement agency will ensure that this information is included in all master copies, digital or otherwise, of the police investigative report related to the arrest that was sealed.
Arrest records, police investigative reports, and court records that are sealed under this section shall not be disclosed to any person or entity except:
- The person whose arrest was sealed, or
- A criminal justice agency (which may use the information to the same extent as if the arrest had not been sealed).20
Improper dissemination of a sealed arrest can be punished by a civil penalty of between $500 and $2,500 per violation. The penalty may be enforced by a city attorney, district attorney, or the Attorney General.
Our California personal injury lawyers offer free consultations to people who have suffered damages as a result of their arrest record being unlawfully released.
Sealing and destroying an adult arrest record under PC 851.87 is a completely different process from sealing a juvenile record. You are eligible to seal your California juvenile criminal record if
- You are currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,
- As an adult, you have not been convicted of any crimes involving moral turpitude (that is, crimes that involve dishonesty or immoral behavior), and
- There is no pending civil litigation based on the juvenile incident.21
Need help sealing a criminal record in California? Call us…
If you or a loved one needs help having an arrest record sealed under Penal Code 851.87 PC we invite you to contact us for a free consultation.
Call us at (855) 396-0370 or complete the form on this page to speak to an experienced California defense lawyer.
We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
We can also help if you need to seal a juvenile record or appeal or expunge a California criminal conviction.
Additionally, our Las Vegas criminal defense attorneys can help if you need to seal and destroy a criminal record in Nevada.
- Penal Code 851.91; 851.92(b)(2)(B).
- See old Penal Code 851.8 PC.
- Penal Code 851.91(a)(1)(A).
- Penal Code 851.91(a)(1)(B)(i).
- Penal Code 851.91(a)(1)(B)(ii).
- Penal Code 851.91(a)(1)(B)(iii).
- Penal Code 851.91(a)(2)(A).
- Penal Code 851.91(a)(2)(B).
- Penal Code 851.91(a)(2)(C). Note that the mere existence of bench warrants or failures to appear that were adjudicated before the case closed with no conviction do not establish intentional evasion.
- Penal Code 851.91(a)(2)(D).
- Penal Code 851.91(c)(2).
- Penal Code 851.91 (e)(2)(B)(i).
- Penal Code 851.92 (b)(6).
- Penal Code 851.91 (e)(2)(B)(iv).
- Penal Code 851.91 (e)(2)(B)(iii).
- Penal Code 851.91 (e)(2)(B)(ii).
- Penal Code 851.91 (b)(1)(B).
- Penal Code 851.91 (b)(1)(D).
- Penal Code 851.91(b)(1)(E).
- Penal Code 851.92(b)(2)(B)(6).
- California Welfare and Institutions Code 781 and 781.5.