Petition to Seal Arrest Record Under Penal Code Section  851.91

In January 2018, a new law came into effect, Penal Code section 851.91, that allows arrest records to be sealed without having to prove factual innocence. (Stats 2017 ch 680 § 4 (SB 393).) Previously, the only way to seal an adult arrest record was to prove factual innocence under Penal Code section 851.8. The primary requirements under Penal Code section 851.91 are that the statute of limitations has expired for the crime for which the person was arrested, and no charges were filed or the district attorney dismissed the charges in court and the person cannot be charged again. Although the sealing provided under the new law is not as complete as that provided under Penal Code section 851.8 through a factual innocence proceeding, it is much better than not having the arrest sealed at all.

The primary requirements to have an arrest record sealed under Penal Code section 851.91 are 1) the statute of limitations has expired for all of the crimes for which the person was arrested, and 2) there was no conviction. The statute of limitations for almost all misdemeanors is one year, while the statute of limitations for felonies range from two, three, and four years to a lifetime (for murder and certain sex offense crimes). That there is no conviction means no charges were ever filed, charges were filed but the case was dismissed prior to a conviction, or the person was acquitted at trial. In short, the case has to be final and no longer being prosecuted. Detentions are considered arrests for purposes of this section.

Ineligibility occurs when the person can still be charged with the crime, the arrest was for murder or another crime with a lifetime statute of limitations, or the person intentionally evaded law enforcement to avoid prosecution. However, if the charge was murder or another crime with a lifetime statute of limitations, relief can be granted under this section only if the person was acquitted at trial or found factually innocent.

If the petitioner meets these requirements, sealing the arrest record shall be granted as “a matter of right,” meaning automatically. There are some exceptions, however. First, the record shall not be sealed as a matter of right, and only in the interests of justice (the court has discretion), if the arrest was for domestic violence, elder abuse, or child abuse, and the person has “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.” (Pen. Code, § 851.91.)  If a person falls into this category, the court will determine whether the interests of justice favor sealing the arrest record. The criteria and information used include, but are not limited to, hardship to the petitioner caused by the arrest, declarations or evidence regarding the petitioner’s good character, declarations or evidence regarding the arrest, and the petitioner’s record of convictions. 

​Given the different requirements for relief, some petitions are more simple to prepare than others. A sealing as a matter of right requires a petition with a verification, information about the arrest, and a statement whether relief is warranted as a matter of right or in the interests of justice, typically filed on the California Judicial Council forms. The petition should be filed in the county where the arrest occurred, and served on the arresting police department or agency before the hearing. For instance, an arrest in Oakland, Berkeley, or San Leandro should be filed in Alameda County. And arrests in Walnut Creek, Martinez, and Pleasanton should be filed in Contra Costa County. The case will then go to a hearing that is scheduled at least 15 days after the motion was filed; the hearing date will likely be later because of the court’s schedule in most counties. At the hearing, the court can grant the petition on the basis of declarations, police reports, or criminal history information. 

​If granted, the court will sign an order stating that the record has been sealed and explaining certain rights the sealing provides. One of these rights is the following: “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.” (Pen. Code, § 851.91, subd. (E)(2)(b).) However, there are some exceptions. The arrest can still be used in any subsequent prosecution of the person. The arrest can still be used in professional licensing eligibility (like obtaining a law, medical, or real estate license), eligibility for public office, and for employment as a peace officer. Although most arrests do not affect firearm ownership whether sealed or not, if sealed under this section, and there is a law affecting firearm ownership, the sealing would not affect that law.
 
The court is required to distribute the order to the prosecution, the arresting police agency, and the police agency in charge of local criminal records. A disposition report shall also be sent to the California Department of Justice. In the local criminal record registry (usually maintained by the sheriff), a note shall be added near the arrest entry that says, “arrest sealed” with the date that the court issued the order, and the section pursuant to which the arrest was sealed. The State criminal history (California Department of Justice report) shall add a note below the entry of the arrest record which says “arrest relief granted,” and provides the date and under which code section it was granted. The arrest record itself will not be deleted in the registry, however. The counties have, generally, been removing records sealed under this section from the public online case information system.
 
The police report for the person arrested shall be stamped “ARREST SEALED: DO NOT RELEASE OUTSIDE THE CRIMINAL JUSTICE SECTOR.” The court records from the arrest shall also be stamped, ““ARREST SEALED: DO NOT RELEASE OUTSIDE OF THE CRIMINAL JUSTICE SECTOR.” The records of the arrest, reports, and court file “shall not be disclosed to any person or entity except the person whose arrest was sealed or a criminal justice agency.” (Pen. Code, § 851.92, subd. (b)(5).) However, sealed arrests under this section can still be used by the district attorney and other law enforcement agencies for their own purposes, in both open court and in unsealed court filings. On the other hand, people or businesses who use sealed arrest records, but who are not authorized to use a sealed arrest under this section, can be sued in civil court for damages.
 
The partial sealing under Penal Code section 851.91 is different than that granted for factual innocence (PC 851.8). Under Penal Code section 851.8, which is the factual innocence statute, the record is completely sealed and then later destroyed - for all purposes. However, in many (if not not most) cases it is difficult to prove factual innocence, so section 851.91 is a good middle ground for employment and personal purposes. There is no time limit to file a petition, apart from waiting for the statute of limitations to expire. A petition for factual innocence, on the other hand, must be filed within two years of the arrest.