Criminal Record Sealing | Penal Code 851.91 PC

December 31, 2017

The California legislature has revised the law allowing individuals to petition the court to seal their criminal arrest records under Penal Code 851.91 pc. This statute is applicable to both felony and misdemeanor arrests. Because of the unfortunate social stigma and embarrassment that attaches to an arrest, the legislature enacted this remedy for those that would suffer hardship as a result of an incident that did not lead to a conviction.

Previous and still existing law permitted an individual to petition to seal their arrest records if the petitioner satisfied the heavy burden of proving factual innocence[1] or successfully completed drug diversion under Penal Code 1000.[2] Although that law is still in existence, there is another statutory method for sealing records from public view for non-drug offenses and without having to petition for factual innocence.

PC 851.91 will allow arrestees that were not convicted to seal their records far from public view and gain the confidence that a misunderstanding is well behind them. This article will address some important points you should know about sealing your arrest record. For more information, contact the Law Offices of John D. Rogers for a free eligibility evaluation.


What Does a Criminal Record Sealing Do?

The only method for sealing your arrest record is to obtain an order from a judge in the jurisdiction where your case was filed or arrest occurred. An arrest record can only be sealed by filing a specific petition with the court and serving the appropriate parties. A hearing will be held to determine the specifics of your case/arrest and eligibility for this remedy. If the court orders your record sealed, it will prevent any member of the public from obtaining records relating to your arrest or documents within your court case.

Eligibility Requirements to Seal Your Arrest and/or Record – PC 851.91

To be eligible to seal your arrest records and/or court case, you must be eligible for this remedy. A person is eligible for relief if their arrest did not result in a conviction and the prosecution does not have the capabilities of charging you, meaning:

  1. The statute of limitations has run and the prosecutor is barred from filing charges; or
  2. Charges were filed against you but they were ultimately dismissed and cannot be refiled; or
  3. You were found not guilty by a judge or jury.

If you fall into the eligibility category, then you may be able to seal your records as a matter of right. In certain circumstances however, the judge will have the discretion to grant or deny your petition. Those instances are as follows:

  • The charge or arrest is domestic violence and you have a pattern of this conduct;
  • The charge or arrest was child abuse and you have a pattern of this conduct;
  • The charge or arrest was elder abuse and you have a pattern of this conduct;

The term “pattern” is defined as either:

  • Two of more convictions of the above crimes; or
  • Five or more separate arrests each within 3 years from each other.

If you fall within the above eligibility but the court has discretion to grant or deny your petition, then the judge will only be permitted to grant your petition if the interests of justice would be served. To determine whether the interests of justice would be served, the judge will consider the following factors:

  • Any hardship caused by your arrest;
  • Declarations or evidence regarding your good moral character;
  • Declarations or evidence regarding and surrounding your arrest;
  • Your prior criminal record.[3]

You have the initial burden to prove that you qualify for this remedy. Once it is deemed that you are statutorily eligible, the burden will shift to the prosecution to prove whether this remedy should be given to you if this remedy is discretionary.

Ineligible Persons to Seal Their Criminal Record

A person is not eligible to seal their record under PC 851.91 if:

  1. Charges may still be filed by the prosecutor;
  2. The charge was murder or an offense with no statute of limitations, except if you were found not guilty by a judge or jury or you were deemed factually innocent;
  3. You intentionally evaded law enforcement via identify fraud.

What is the Difference Between an Expungement versus Record Sealing?

Contrary to popular belief, an expungement does not erase your conviction. It merely adds a notation to your formal record reflecting that the conviction was dismissed per Penal Code 1203.4. An expungement permits a person to legally answer that they have no criminal convictions on most employment applications. However, an expungement will not seal the arrest or court records. Accordingly, a member of the public may still obtain court records despite your record ordered expunged.

On the other hand, sealing your record is only available if the arrest did not lead to a conviction. Sealing your record under Penal Code 851.91 pc will order all records relating to your case to be closed and not available for viewing by any member of the public. This prevents any person from the public from obtaining any arrest information or court documentation about your matter.

What Happens After the Court Grants My Petition?

If the court grants your petition to seal under PC 851.91, then there are statutory formalities that must be followed:

  • The court will transmit a disposition report to the California Department of Justice;
  • Issue a written order to you, the prosecution, and arresting agency that your records are ordered sealed;
  • Issue an order that the arrest is deemed not to have occurred and the petitioner will be released from all penalties or disability as a result of your arrest;
  • The police agency must seal all investigative reports relating to your arrest and not be accessible by any member of the public;
  • The court records will be sealed and not be made public;
  • Order that it is a civil penalty to disseminate sealed court and arrest records.[4]

Does PC 851.91 Destroy My Arrest Records?

The statute expressly states that it does not destroy arrest or court records. This remedy ensures that your records are not disseminated to the public upon a search. Those interested in sealing and destroying their records must file a petition for factual innocence. If a petition for factual innocence is granted, all records relating to the arrest and/or court documents must be destroyed.

Contact Us to Schedule a Free Consultation

If you were arrested and your case was subsequently rejected or dismissed in court, then there is no reason why you should not obtain this remedy. Contact the Law Offices of John D. Rogers to speak with an experienced criminal defense attorney about filing your record sealing petition under Penal Code 851.91 pc. Our office provides free confidential consultations and handles petitions in Orange County, Los Angeles, Riverside, San Diego, Ventura, and San Bernardino counties. Those who do not qualify to have their records sealed may be interest in other available remedies:

Legal References:

[1] Penal Code 851.8 et seq.

[2] See Penal Code 1000 et seq.

[3] Penal Code 851.91(c)(2)(B)(i)-(iv).

[4] See Penal Code 851.92

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