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Criminal Record Sealing in California

Arrest With No Conviction: The CARE Act

  • If you had an arrest that did not result in a conviction, you may be able to seal your record under Penal Code section 851.91
  • Sealing an arrest with no conviction applies in the following situation:
    • You were arrested but no charges were filed
    • You were arrested and charged but the charges were dismissed
    • You completed diversion and the charges were dismissed
    • You completed “DEJ” (deferred entry of judgment) and the charges were dismissed;
    • You went to trial and were found not guilty

To request sealing: Use ‘Petition to Seal Arrest and Related Records Form CR-409’

Exceptions to sealing a client's criminal record as a matter of right:

  • Domestic Violence:
    • Defined under Penal Code 243(e)(1) “domestic battery”
  • Child abuse, and/or
    • Penal Code 273d PC defines child abuse, or corporal injury on a child, as imposing physical injury or cruel punishment on a minor under the age of 18.
  • Elder abuse
    • Penal Code 368 PC defines the crime of elder abuse as physical or emotional abuse, neglect, or financial exploitation of a victim who is 65 years of age or older.

The process to seal criminal records under Penal Code Section 851.91

A petition to seal an arrest record in California must be filed either:

  • In the Superior 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

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

Penal Code 851.91 requires the following information to be provided with the petition to seal the arrest record:

  • 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

How soon do you have to file under Penal Code 851.91?

  • No time limit under Penal Code 851.91 However, Under prior California Penal Code 851.8, petitioners had 2 years from the later of their arrest or the filing of charges to petition to seal their arrest record. (check to see if this still applies)

Sealing a Criminal Record under Penal Code 851.8: Factual Innocence (Not as easy to prove)

In order to prove factual innocence under Penal Code 851.8, the petitioner has to show that there was NO REASONABLE CAUSE FOR AN ARREST.

  • A successful petition for a finding of factual innocence will show that there was no reasonable cause to believe a person committed the offense for which he was arrested.
  • A PC 851.8 factual innocence motion is used when someone was wrongfully accused and must be filed within 2 years of the arrest.
  • There are cases where a prosecutor files formal charges, but later decides to drop the case before trial. Even in this situation, an individual still has an arrest record which can have a negative consequence for someone seeking employment.

Determining Your Eligibility Under PC 851.8:

  • A person can seek a petition for factual innocence where he or she:
    • Has been detained by an arresting agency, but not officially arrested by police for a crime
    • Has been arrested for an offense, but not formally charged
    • Was formally charged for a crime, but the prosecuting attorneys dropped the charge, and,
    • Was formally charged for a crime and tried for that crime, but there was no criminal conviction

How to Submit your Petition to Seal & Destroy Arrest Records:

  • Penal Code 851.8 requires the petitioner to submit a “petition to Seal and Destroy Arrest Records” to the arresting law enforcement agency that has jurisdiction over the offense. (link to PC 851.8 Form below)
  • If the LEA does not respond within 60 days after receiving the petition, or if the petition is denied, you can make a subsequent petition to the court which has jurisdiction over the case to grant an order requiring them to seal and destroy the arrest record. Which will lead to a factual innocence hearing.

Factual Innocence Hearing: (Petitioner starts w/ the burden of proof)

  • Examples of evidence to attempt to prove factual innocence:
      1. Photos
      1. Witness testimony
      1. Receipts
      1. Surveillance video
      1. Cell phone records
      1. DNA
  • During the hearing it is the attorney's responsibility to present an argument of factual innocence by showing affidavits, police reports, and items listed above.
  • If an attorney can prove there was no reasonable cause for arrest, burden of proof switches to the prosecutor/arresting officer who will have to demonstrate reasonable cause to prove that the client committed the alleged crime.
  • After all evidence has been presented, the Judge will make final ruling on whether to grant or deny your factual innocence petition.

Link for Penal Code 851.91 Petition Form:

How soon do you have to file under Penal Code 851.8?

  • here is a two year statute of limitations from the date that you were arrested or the date that you were charged by the prosecutor, whichever occurred later

Key differences between Penal Code 851.8 and Penal Code 851.91:

  • The main difference in terms of eligibility of these two Penal Codes comes down to the difference between being “legally innocent” and “factually innocent”
    • PC 851.8 involves persons who are “factually innocent” of the crimes. In other words, “no reasonable cause” exists to believe that you committed the offense and you should never have been arrested in the first place.
    • PC 851.91 involves persons who are “legally innocent” of the crime they were arrested for. In other words, you were never found guilty beyond a reasonable doubt and were never convicted of any crime.
      • To have your petition to seal your arrest record granteed, 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 interest of justice to grant your petition to seal your arrest record.

Expunging your criminal record under Penal Code 1203.4 (Used if client was convicted of a crime)

California Penal Code 1203.4: Expungement Motions

  • Any individual who was placed on probation, and has successfully completed their probation, is entitled to be able to petition the court to have their entire case expunged under PC 1203.4
    • Important to note: This motion does not remove the entire case from your record, but it will erase the conviction from your record. Thus, instead of your record now saying that you’re convicted of a crime, instead it will say that your case was dismissed.

Who is eligible to have a conviction expunged?

  • Penal Code 1203.4 is available to defendants convicted of either a felony or misdemeanor provided that:
    • The defendant has successfully completed probation for the offense, and
    • The defendant Did not serve time in state prison for the offense, or

Who is not eligible for a California Expungement?

  • If the client:
    • Is currently charged with a criminal offense
    • Is on probation for a criminal offense or
    • Is serving a sentence for a criminal offense
      • Sex crimes against children will also prohibit you form pursuing this relief

Penal Code Link:

California Expungement Form: CR-180

Step by step analysis for expunging your record:


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