POST-CONVICTION RELIEF LAW — CALIFORNIA
Sealing Arrest Records in California — PC §851.8 and PC §851.91
An arrest that did not result in conviction can be sealed and destroyed under California law. A sealed arrest record cannot be disclosed to employers and is treated as if the arrest never occurred.
Reviewed by Daniel S. Rubin, CA Bar 302093 · Los Angeles Criminal Defense Attorney
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Sealing Arrest Records California — At a Glance
- Law / Code
- PC §851.8 / PC §851.91
- Classification
- Post-Arrest Relief — Record Sealing
- Maximum Penalty
- N/A — relief for arrests
- Probation Eligible
- N/A
- Strike Offense
- N/A
- Related Codes
- PC §851.8PC §851.91PC §1203.4WIC §781
What Is Sealing Arrest Records California Under California Law?
Legal Framework. California provides two principal routes to seal arrest records when an arrest did not lead to a conviction. Penal Code § 851.8 permits a person who was arrested and released, or whose charges were dismissed, to petition for a finding of factual innocence. The petitioner must show that no reasonable cause exists to believe he or she committed the offense; this is a demanding standard, not merely proof that the prosecution could not prove guilt beyond a reasonable doubt. Penal Code § 851.91 provides the broader arrest-record sealing procedure. Subject to statutory exceptions, a person may petition to seal records of an arrest where no accusatory pleading was filed, the case was dismissed, an acquittal occurred, or a conviction was vacated or reversed and the case cannot be retried. The court may order arrest records sealed and, in appropriate circumstances, destroyed under the governing statutes.
The Prosecution's Burden. A petition under PC § 851.8 generally must be filed within two years of the arrest or the filing of the accusatory pleading, whichever is later, unless the court finds good cause for a late petition. The petitioner bears the burden of establishing factual innocence. By contrast, PC § 851.91 ordinarily creates an entitlement to arrest-record sealing if the statutory eligibility criteria are met, unless the petitioner falls within a listed exception or the court finds that sealing would not serve the interests of justice. A pending criminal charge can delay relief. The statute also excludes certain matters, including arrests for conduct for which the petitioner may still be charged, specified patterns involving domestic violence, child abuse, or elder abuse, and cases in which the petitioner intentionally evaded law enforcement by fleeing the jurisdiction. The precise procedural route depends on the case disposition and the agency holding the records.
Potential Consequences. Arrest sealing is different from expungement under PC § 1203.4. Section 1203.4 generally addresses a conviction after probation has been completed; it does not erase the fact of an arrest or create factual innocence. PC §§ 851.8 and 851.91 concern arrests that did not end in a sustainable conviction. In Los Angeles County, relevant records may be held by LAPD, LASD, the arresting municipal agency, the Los Angeles County District Attorney, the court, and the California Department of Justice. A court order may require each identified agency to seal its records. Under PC § 851.91, a person whose arrest is sealed is generally released from the obligation to disclose the arrest and may answer as if it did not occur, with limited statutory exceptions such as applications for peace officer employment and certain state or local licenses. Sealed records can still be accessed in limited circumstances authorized by law.
05 — Defense Strategies
How Rubin Law Defends Sealing Arrest Records California Charges
Rubin Law, P.C. attacks the elements of PC §851.8 / PC §851.91 and drives outcomes that avoid conviction where possible.
Select the Correct Statutory Remedy
The first issue is whether the facts support a factual-innocence petition under PC § 851.8, a broader arrest-sealing petition under PC § 851.91, or both in the alternative. A dismissal, declined filing, acquittal, or reversed conviction may qualify for sealing under § 851.91 without proving factual innocence. But a successful § 851.8 petition carries the stronger judicial finding that no reasonable cause existed to believe the person committed the offense. We review the disposition, charging history, dates, and remaining limitations issues before choosing the remedy. Filing under the wrong statute can create avoidable delay or invite opposition based on a standard the client does not need to meet.
U.S. Const. amend. IV
Build a Factual Innocence Record
For PC § 851.8, the defense must establish more than a favorable case outcome. The statutory question is whether reasonable cause existed to believe the petitioner committed the charged offense. We obtain police reports, body-worn-camera material when available, dispatch records, witness statements, forensic results, and the prosecutor’s stated basis for rejection or dismissal. Alibi evidence, mistaken identification, recantation, objective video, unreliable informant information, and evidence identifying another perpetrator can be central. The petition should explain why the arrest itself lacked reasonable cause in light of the complete record, not simply argue that the evidence was insufficient for trial. This distinction is often decisive.
17 CCR §1219.3
Address Section 851.91 Exceptions Early
PC § 851.91 is broad, but it is not automatic in every non-conviction case. The petition must confront any claimed statutory exception, including whether the conduct remains chargeable, whether another case is pending, or whether the arrest falls within an exception involving specified abuse-related allegations or intentional flight from the jurisdiction. We analyze the procedural record and charging limitations period, then submit documentation showing that the case is genuinely resolved or that an exception does not apply. If an interests-of-justice determination is required, the petition should give the court concrete reasons to grant relief, including the disposition, the absence of later allegations, and the ongoing harm caused by accessible arrest data.
NHTSA SFST
Serve Every Record-Holding Agency
An arrest record may exist in more places than the courthouse file. In a Los Angeles matter, records may be maintained by LAPD or LASD, another arresting agency, the Los Angeles County District Attorney, the Superior Court, and the California Department of Justice. A sealing order is most useful when it identifies the arrest by date, agency, booking or report number, and case number, and directs the appropriate entities to seal responsive records. We verify which agencies generated or received records rather than assuming that a court dismissal alone removed them. Careful agency identification helps prevent a sealed court case from continuing to appear through a separate law-enforcement or criminal-history record.
VC §23152
Correct Disposition and Identity Errors
Arrest-record relief can be delayed when databases show an inaccurate charge, an unresolved disposition, duplicate booking entries, a misspelled name, or a mistaken identity match. These errors matter because PC § 851.91 eligibility depends on the actual disposition and because a record under the wrong identity may survive an otherwise valid order. We compare the arrest report, booking sheet, complaint, minute orders, Department of Justice information, and any background report obtained by the client. Where needed, we ask the court and agencies to correct the underlying record as part of, or before, the sealing request. An accurate record gives the court a clear basis to order complete relief.
17 CCR §1219.1
Use Sealing Relief in Related Negotiations
When a case is still pending, the resolution should be structured with future arrest-record relief in mind. A dismissal after completion of diversion, completion of a treatment program, or a negotiated reduction may affect which statute applies and whether the record remains eligible for sealing. We evaluate the consequences before the client accepts a disposition, including whether a plea, deferred-entry arrangement, or probationary sentence would create a conviction that must instead be addressed under PC § 1203.4. If dismissal is available, the record should clearly reflect the final disposition. That documentation supports a later PC § 851.91 petition and reduces disputes about whether the arrest resulted in a conviction.
VC §23103.5
Constitutional Sources: Fourth Amendment — U.S. Constitution
Questions
Frequently Asked — Sealing Arrest Records California
Can I seal an arrest record if charges were never filed?
Usually, yes. Penal Code § 851.91 permits a petition to seal an arrest record when no accusatory pleading was filed and the person was not convicted of the offense. This commonly applies when a prosecutor declines to file charges after an LAPD, LASD, or other agency arrest. The petition should identify the arresting agency, arrest date, report or booking number, and the lack of filing. Eligibility is not unlimited: § 851.91 contains exceptions, including situations in which the person may still be charged for the conduct, certain specified abuse-related arrests, intentional flight from the jurisdiction, and pending criminal charges. If the arrest was baseless, PC § 851.8 may also be considered, but it requires proof of factual innocence under a substantially higher standard.
What is the difference between PC 851.8 and PC 851.91?
PC § 851.8 is a factual-innocence procedure. The petitioner must show that no reasonable cause exists to believe he or she committed the offense. A dismissal or acquittal alone does not establish that standard. If granted, the court orders the arrest record sealed and destroyed as provided by the statute. PC § 851.91 is the more broadly available arrest-record sealing law for many arrests that did not result in conviction, including declined filings, dismissals, acquittals, and certain reversed or vacated convictions. It does not ordinarily require the petitioner to prove factual innocence, though statutory exclusions and interests-of-justice issues can matter. The remedies may overlap, but the proof, timing, and practical benefits can differ.
Does a sealed arrest mean I can tell employers I was never arrested?
Generally, yes. Under PC § 851.91, once an arrest record is sealed, the person is released from all penalties and disabilities resulting from the arrest and may answer questions relating to that arrest as if it did not occur. The statute specifically provides that the person need not disclose the arrest to an employer. Important exceptions remain. The arrest may have to be disclosed when applying for a position as a peace officer, and when applying for certain state or local licenses where disclosure is required by law. Sealing also does not prevent lawful access or use of sealed records in every government context. A person should read the exact wording of an employment or licensing question before responding.
How long do I have to file a factual innocence petition?
Under PC § 851.8, a petition for a finding of factual innocence generally must be filed within two years of the arrest or the filing of the accusatory pleading, whichever is later. The court may permit a late filing on a showing of good cause. Because factual innocence requires proof that no reasonable cause existed to believe the petitioner committed the offense, it is wise to preserve evidence before records become harder to obtain. The two-year deadline applies to the § 851.8 procedure, not necessarily to every request under PC § 851.91. Still, waiting can create practical problems, including lost agency records, unavailable witnesses, and difficulty proving the final case disposition. The applicable procedure should be evaluated promptly after the case ends.
Can I seal an arrest after my case was dismissed following diversion?
Often, but the answer depends on the type of diversion and the final court disposition. PC § 851.91 covers arrests where the accusatory pleading was dismissed, which may include a dismissal following successful diversion if no conviction remains. The petition should include the minute order or other reliable proof showing completion and dismissal. Some diversion statutes contain their own record-relief provisions or limitations, and a plea entered as part of a program can affect the analysis. A conviction followed by relief under PC § 1203.4 is not the same as an arrest that never resulted in conviction. Before filing, review whether the case was dismissed outright, whether judgment was entered, and whether the court record accurately reflects the program’s final outcome.
Will sealing remove the arrest from every background check and government database?
A sealing order under PC § 851.91 is powerful, but it is not a guarantee that every private database immediately updates or that no government entity can ever access the information. The court order should reach the agencies that hold the official arrest records, such as the arresting police or sheriff’s department, the court, the prosecutor, and the California Department of Justice when applicable. Commercial background-check companies may retain outdated data and may need to be sent the order or asked to reinvestigate under applicable consumer-reporting law. Sealed records also remain subject to limited statutory access and disclosure exceptions. If an old arrest continues appearing after relief is granted, obtain the order and seek correction from the reporting source. For a case-specific review, call (213) 723-2337.
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