Sealing Arrest Records in CA | Ronald Dinan & Associates

I've been arrested but I was never convicted of the crime for which I was arrested. Can I have my arrest record sealed? The short answer is “YES,” but the path to having the arrest record sealed depends on how and why the case did not result in a conviction.

Sealing an arrest record is different than having a conviction expunged from a criminal record. Expungement occurs after a person has been convicted of a crime, whereas sealing an arrest record is appropriate where (1) an arrest does not lead to a conviction, (2) the charges are never filed by the District Attorney or (3) the charges are filed by the District Attorney but are dismissed during the course of the case.

When a person acquires an expungement, the arrest record and conviction records are not erased, but rather, an additional favorable entry is added to their criminal history showing that the case has been "dismissed" per Penal Code 1203.4." When a criminal record has actually been sealed, no one who checks someone's criminal record can see the arrest record except law enforcement This is extremely adventagious to someone who is having their criminal record/history checked, such as during the course of a housing application, loan application, or employment application. A criminal incident that has been sealed does not appear on their criminal record.

Sealing of an arrest record is appropriate where (1) charges were never filed by the District Attorney, (2) charges were filed by the District Attorney but later dismissed prior to conviction, (3) charges resulted in a not guilty verdict at a trial, (4) a defendant was referred to a diversion program and successfully completed the program, and (5) in the interest of justice.

California Penal Code § 851.91[i], which became effective on January 1, 2019, explains who may be eligible to have their arrest record sealed and the process by which a person can petition to have their arrest record sealed. It is important to make certain that a criminal defense attorney is involved in this complicated process. Generally, our criminal defense lawyers in Sonoma, Napa, Marin, Lake, Mendocino and Humboldt counties can have this process completed in approximately 60-90 days.

A. PC 851.91 - Sealing as a Matter of Right

In some cases, a person is entitled to have their arrest record sealed as a matter of right. That is to say, that the court must seal the arrest record when a Petition to Seal has been properly filed. This is the case when a District Attorney never actually files charges, when the district attorney files charges but dismisses them before a conviction, when the defendant goes to trial and receives a "not guilty" verdict, when someone charged with a crime is successfully referred to a diversion program, when someone successfully completes diversion after an arrest, or when charges are filed but the arrested individual is found not guilty.

1) Charges Were Never Filed

For every criminal offense, the District Attorney must file charges within a proscribed period of time following an arrest. This time period is known as the Statute of Limitations. If the District Attorney does not file charges within the Statute of Limitations period following an arrest, he/she is forever barred from filing criminal charges for that crime. When this is the case, an arrested person is entitled to have their arrest record sealed.

For example, Bob is stopped at a DUI checkpoint and is arrested for driving under the influence of alcohol. The police who arrested Bob forward the arrest report to the District Attorney and recommend they charge Bob with a DUI. The District Attorney's office has one year from the date of Bob's arrest to charge him with a DUI, but they fail to do so within the one year Statute of Limitations. As soon as one year has passed, Bob may petition the court to have his DUI arrest record sealed, and the court must grant the petition as a matter of right. Criminal defense attorneys in our Santa Rosa, Napa, San Rafael, Lakeport, Ukiah and Eureka offices are able to advise you as to whether you are entitled to have your criminal record sealed.

There are, however, some crimes for which there is no statute of limitations. That is to say, the District Attorney can file charges any time after an arrest, no matter how much time has passed. For example, there is no statute of limitations for the crime of murder. If Bob had been arrested for murder, the District Attorney may file charges any time following Bob's arrest, no matter how much time has passed.

2) Charges Were Filed but Dismissed by the District Attorney

In some cases, the District Attorney will file charges against the arrested individual but for any number of reasons will choose to dismiss the charges before trial. This might be the case because further investigation by the District Attorney's office or evidence developed by the defense team and presented to the District Attorney or the court demonstrated that the charges should be dismissed. This dismissal of the charges often occurs because the alleged incident did not occur but rather, because the district Attorney is unable to prove the case beyond every reasonable doubt. Alternatively, a proactive and well-prepared defense team may choose to file a pretrial motion, such as a Motion to Suppress Evidence, that results in the exclusion of evidence necessary to prove an element of the crime for which the arrested individual is charged. In this case, the District Attorney must dismiss the charge.

In Bob's situation, discussed above, assume Bob was arrested for suspicion of driving under the influence of drugs. The arresting agency will draw a blood sample at the time of Bob's arrest and send it to a laboratory for testing. If the blood test results show that Bob did not have any drugs in his system at the time of his arrest, the charges would have to be dropped because there is no evidence that he was under the influence. Alternatively, assume that Bob was initially stopped because the police believed he was driving without his lights on during nighttime hours. However, the defense team requested the prosecution provide copies of the police dashboard videos from the arrest and the video clearly shows that Bob's headlights were, in fact, on prior to the stop. The court would find that the police stopped Bob without a valid justification and any evidence gathered after the stop must be excluded. The DUI charges would have to be dismissed because all evidence gathered to support a DUI charge was excluded and the prosecution could not support their case. Our criminal defense attorneys file numerous Motions to Suppress throughout the year and when, we receive a favorable decision from the Court in this regard, almost inevitably the case is dismissed. It is then that we file a Petition to Seal for our clients in our offices in Sonoma, Napa, Marin, Lake, Mendocino and Humboldt counties.

**3) Charges Resulting in a Not Guilty Verdict at Trial**

In other cases, the District Attorney files criminal charges after an arrest, but the charges do not ultimately lead to a conviction. This may be the case for a variety of reasons:

a. The charges have been dismissed and cannot be refiled.

b. The person arrested and charged was found not guilty following a jury trial or a trial by a judge known as a bench trial).

c. The person arrested and charged was convicted following a jury or bench trial, but the appellate courts reversed or vacated the conviction and the charges cannot be refiled.

Referring to our earlier example, in the case of Bob's arrest, assume the District Attorney filed DUI charges within the Statute of Limitations period. If the District Attorney dismisses the charges and they cannot be refiled, Bob would be entitled to have his arrest record sealed. Further, if Bob takes his case to trial and is found not guilty, he would also be entitled to have his arrest record sealed. Finally, if Bob takes his case to trial and is found guilty, but he appeals his case and his conviction is reversed (and the case cannot be reheard), he is entitled to have his arrest record sealed. Experienced criminal defense attorneys can analyze anyone's criminal situation to determine if they are entitled to a Petition to Seal.

A person is not eligible to have his arrest record sealed as a matter of right in some circumstances. If the person intentionally evaded law enforcement attempts to prosecute the arrest by fleeing the jurisdiction or by engaging in identity fraud, he may not be eligible to have his arrest record sealed. Also, as mentioned above, if charges may still be filed, either because there is no Statute of Limitations for the charge (i.e., murder) or the Statute of Limitations has not run, a person is not entitled to have their record sealed as a matter of right.

4) Diversion granted and successfully completed

There are some charges for which a defendant may be eligible for a program known as pre-trial diversion. Misdemeanor charges involving assault, theft, burglary, public intoxication, and prostitution are among the crimes for which a diversion program may be generally available. If the arrested person is charged with one of the “divertible” offenses and is deemed qualified for the appropriate diversion program, he or she will be referred to a probation office to enroll in the diversion program. Typically, if the arrested individual successfully completes all of the requirements of the diversion program within 12 months, the individual will be deemed to have successfully completed diversion and the pending charges against him/ her will be dismissed. The arrested individual is then entitled to have his or her arrest record sealed as a matter of right.

Even if the charges for which the arrested individual are “divertible,” some circumstances may disqualify the individual from participating in a diversion program. Failure to appear in the past on the same charges, successfully completing a diversion program within five years of the present charges, a prior felony conviction at any time, a misdemeanor conviction within the previous five years, other pending criminal charges, previous unsuccessful completion of a diversion program, previous commitment to the California Youth Authority, and reduction of the present pending charges from a felony to a misdemeanor are all examples of possible disqualifying factors. It is important to consult a knowledgeable criminal defense attorney regarding your current charges and past history to determine if you may be eligible for a diversion program.

In addition to a misdemeanor pre-trial diversion program, some defendants may be eligible for other diversion programs such as PC 1001.80 Military Diversion, PC 10001.36 Mental Health Diversion, Bad Check Diversion and PC 1000 Drug Diversion.

B. PC 851.91- Sealing Arrest Records in the Interest of Justice

A person who is not entitled to have their arrest record sealed as a matter of right may still petition the court to seal their arrest record in the interest of justice. In such cases, the court is not obligated to grant an individual's Petition to Seal their arrest record but may do so when the petitioner demonstrates that the arrest has resulted in a hardship and the interest of justice would be served by sealing their arrest record. Criminal defense lawyers in our Santa Rosa, Napa, San Rafael, Lakeport, Ukiah and Eureka offices can explain the intricacies of the application for a Petition to Seal and the relevant circumstances. These circumstances arise when the person is arrested for domestic violence, elder abuse, or child abuse, and the person has demonstrated a “pattern” of arrests or convictions for similar offenses. California Penal Code § 851.91 describes a “pattern” as two or more previous convictions or five or more previous arrests for similar offenses within three years of the current arrest.

When filing a petition to seal an arrest record in the interest of justice, the arrested person must demonstrate that the arrest is causing hardship. This might take the form of financial hardship because the arrest is preventing the person from finding or keeping a job. It could also be preventing the person from finding or keeping their housing or preventing them from maintaining a relationship with family members. In such cases, the person seeking to have their arrest record sealed must present evidence of the hardship, and the court may consider any evidence that is “material, relevant, and reliable.” Declarations regarding the arrested person's good character, employment history, efforts towards rehabilitation, and financial stability are all examples of evidence that the court may consider.

C. Filing a Petition to Seal an Arrest Record

If a person meets the qualifications to have their arrest record sealed, either as a matter of right or in the interest of justice, that person must file a Petition to Seal an Arrest Record. A properly filed Petition to Seal must be served in the jurisdiction where the arrest occurred, be filed at least 15 days prior to the hearing on the petition, and be served on the District Attorney, the arresting agency, and the court. It must also include the following information:

The petitioner's name and date of birth;
The date of the arrest;
The city and county where the arrest took place;
The law enforcement agency that made the arrest;
The arresting agency's case number and, if charges were filed, the court case number;
The specific offenses for which the person was arrested or, if charges were filed, the specific charges the petitioner wishes to have his arrest record sealed; and
A verified statement that the petitioner is entitled to have his arrest record sealed and why.

Remember, Ronald Dinan and Associates is a firm of experienced and aggressive criminal defense lawyers who can help in achieving the best outcome in your case. Many times, criminal case dispositions will include reduction or outright dismissal of the number and/or severity of criminal charges, diversion programs, probation, reduced fines with installment payments, alternatives to jail, etc.

To get immediate help with your criminal matter, we invite you to call us to discuss your case. We answer all telephone calls in a polite, professional and helpful manner.

Santa Rosa – 707-571-5550

Napa – 707-252-0102

Marin – 415-491-0223

Lakeport – 707-262-0503

Ukiah – 707-462-5950

Eureka – 707-445-1348

The Actual Law Itself: Sealing Arrest Records- California Penal Code 851.91

(a) A person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest and related records sealed, as described in Section 851.92.

(1) For purposes of this section, an arrest did not result in a conviction if any of the following are true:

(A) The statute of limitations has run on every offense upon which the arrest was based and the prosecuting attorney of the city or county that would have had jurisdiction over the offense or offenses upon which the arrest was based has not filed an accusatory pleading based on the arrest.

(B) The prosecuting attorney filed an accusatory pleading based on the arrest, but, with respect to all charges, one or more of the following has occurred:

(i) No conviction occurred, the charge has been dismissed, and the charge may not be refiled.

(ii) No conviction occurred and the arrestee has been acquitted of the charges.

(iii) A conviction occurred, but has been vacated or reversed on appeal, all appellate remedies have been exhausted, and the charge may not be refiled.

(2) A person is not eligible for relief under this section in any of the following circumstances:

(A) He or she may still be charged with any of the offenses upon which the arrest was based.

(B) Any of the arrest charges, as specified by the law enforcement agency that conducted the arrest, or any of the charges in the accusatory pleading based on the arrest, if filed, is a charge of murder or any other offense for which there is no statute of limitations, except when the person has been acquitted or found factually innocent of the charge.

(C) The petitioner intentionally evaded law enforcement efforts to prosecute the arrest, including by absconding from the jurisdiction in which the arrest occurred. The existence of bench warrants or failures to appear that were adjudicated before the case closed with no conviction does not establish intentional evasion.

(D) The petitioner intentionally evaded law enforcement efforts to prosecute the arrest by engaging in identity fraud and was subsequently charged with a crime for that act of identity fraud.

(b) (1) A petition to seal an arrest shall:

(A) Be verified.

(B) Be filed in the court in which the accusatory pleading based on the arrest was filed or, if no accusatory pleading was filed, in a court with criminal jurisdiction in the city or county in which the arrest occurred.

(D) Be served, by copy, upon the prosecuting attorney of the city or county in which the arrest occurred and upon the law enforcement agency that made the arrest at least 15 days prior to the hearing on the petition.

(E) Include all of the following information:

(i) The petitioner's name and date of birth.

(ii) The date of the arrest for which sealing is sought.

(iii) The city and county where the arrest took place.

(iv) The law enforcement agency that made the arrest.

(v) Any other information identifying the arrest that is available from the law enforcement agency that conducted the arrest or from the court in which the accusatory pleading, if any, based on the arrest was filed, including, but not limited to, the case number for the police investigative report documenting the arrest, and the court number under which the arrest was reviewed by the prosecuting attorney or under which the prosecuting attorney filed an accusatory pleading.

(vi) The offenses upon which the arrest was based or, if an accusatory pleading was filed based on the arrest, the charges in the accusatory pleading.

(vii) A statement that the petitioner is entitled to have his or her arrest sealed as a matter of right or, if the petitioner is requesting to have his or her arrest sealed in the interests of justice, how the interests of justice would be served by granting the petition, accompanied by declarations made directly and verified by the petitioner, his or her supporting declarants, or both.

(2) The court may deny a petition for failing to meet any of the requirements described in paragraph (1).

(3) (A) The Judicial Council shall furnish forms to be utilized by a person applying to have his or her arrest sealed pursuant to this section. The petition form shall include all of the information required to be included in the petition by paragraph (1) of subdivision (b), shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the petition form is available in additional languages and the Internet Web site where the form is available in alternative languages. The forms shall include notice of other means to address arrest records, including a determination of factual innocence under Section 851.8 and deeming an arrest a detention under Section 849.5.

(B) (i) A facility at which an arrestee is detained shall, at the request of an arrestee upon release, provide the forms furnished by Judicial Council pursuant to subparagraph (A) to the arrestee.

(ii) A facility at which an arrestee is detained shall post a sign containing the following information: “A person who has been arrested but not convicted may petition the court to have his or her arrest and related records sealed. The petition form is available on the Internet or upon request in this facility.”

(c) A petition to seal an arrest record pursuant to this section may be granted as a matter of right or in the interests of justice.

(1) A petitioner who is eligible for relief under subdivision (a) is entitled to have his or her arrest sealed as a matter of right unless he or she is subject to paragraph (2).

(2) (A) (i) A petitioner may have his or her arrest sealed only upon a showing that the sealing would serve the interests of justice if any of the offenses upon which the arrest was based, as specified by the law enforcement agency that made the arrest, or, if an accusatory pleading was filed, any of the charges in the accusatory pleading, was one of the following:

(I) Domestic violence, if the petitioner's record demonstrates a pattern of domestic violence arrests, convictions, or both.

(II) Child abuse, if the petitioner's record demonstrates a pattern of child abuse arrests, convictions, or both.

(III) Elder abuse, if the petitioner's record demonstrates a pattern of elder abuse arrests, convictions, or both.

(ii) For purposes of this subparagraph, “pattern” means two or more convictions, or five or more arrests, for separate offenses occurring on separate occasions within three years from at least one of the other convictions or arrests.

(B) In determining whether the interests of justice would be served by sealing an arrest record pursuant to this section, the court may consider any relevant factors, including, but not limited to, any of the following:

(i) Hardship to the petitioner caused by the arrest that is the subject of the petition.

(ii) Declarations or evidence regarding the petitioner's good character.

(iii) Declarations or evidence regarding the arrest.

(iv) The petitioner's record of convictions.

(d) (1) At a hearing on a petition under this section, the petitioner, the prosecuting attorney, and, through the prosecuting attorney, the arresting agency may present evidence to the court. Notwithstanding Section 1538.5 or 1539, the hearing may be heard and determined upon declarations, affidavits, police investigative reports, copies of state summary criminal history information and local summary criminal history information, or any other evidence submitted by the parties that is material, relevant, and reliable.

(2) The petitioner has the initial burden of proof to show that he or she is entitled to have his or her arrest sealed as a matter of right or that sealing would serve the interests of justice. If the court finds that petitioner has satisfied his or her burden of proof, then the burden of proof shall shift to the respondent prosecuting attorney.

(e) If the court grants a petition pursuant to this section, the court shall do all of the following:

(1) Furnish a disposition report to the Department of Justice, pursuant to Section 13151, stating that relief was granted under this section.

(2) (A) Issue a written ruling and order to the petitioner, the prosecuting attorney, and to the law enforcement agency that made the arrest that states all of the following:

(B) The record of arrest has been sealed as to petitioner, the arrest is deemed not to have occurred, the petitioner may answer any question relating to the sealed arrest accordingly, and the petitioner is released from all penalties and disabilities resulting from the arrest, except as provided in Section 851.92 and as follows:

(i) The sealed arrest may be pleaded and proved in any subsequent prosecution of the petitioner for any other offense, and shall have the same effect as if it had not been sealed.

(ii) The sealing of an arrest pursuant to this section does not relieve the petitioner of the obligation to disclose the arrest, if otherwise required by law, in response to any direct question contained in a questionnaire or application for public office, for employment as a peace officer, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.

(iii) The sealing of an arrest pursuant to this section does not affect petitioner's authorization to own, possess, or have in his or her custody or control any firearm, or his or her susceptibility to conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6, if the arrest would otherwise affect this authorization or susceptibility.

(iv) The sealing of an arrest pursuant to this section does not affect any prohibition from holding public office that would otherwise apply under law as a result of the arrest.

The Actual Law Itself: Sealing Arrest Records- California Penal Code 851.91