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Seal Arrest Record – Penal Code Section 851.91

If you have been arrested but not convicted you may ask the court to seal your arrest records.

Arrested but not convicted – What does it mean?

(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; or

(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:

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

(2) No conviction occurred and you have been acquitted of the charges.

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

You are not eligible to Seal Your Arrest Records under Penal Section 851.91:

If you may still be charged with any of the offenses upon which the arrest was based.

(a) 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.

(b) If you 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 handled before the case closed with no conviction does not establish intentional evasion.

(c) You intentionally evaded law enforcement efforts to prosecute the arrest by engaging in identity fraud and were later charged with identity fraud.

For Some Charges, You Must Show Sealing Serves The Interests Of Justice

A petition to seal an arrest record may be granted as a matter of right or in the interests of justice.

You may have your 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:

(a) Domestic violence, if your record demonstrates a pattern of domestic violence arrests, convictions, or both.

(b) Child abuse, if your record demonstrates a pattern of child abuse arrests, convictions, or both.

(b) Elder abuse, your record demonstrates a pattern of elder abuse arrests, convictions, or both.

If your petition to seal your arrest record under PC section 851.91 is granted, the court must:

Send a disposition report to the Department of Justice, stating that relief was granted under this Penal Code section 851.91.

Issue a written ruling and order to you, the prosecuting attorney, and to the law enforcement agency that made the arrest that states all of 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, except as provided in Section 851.92 and as follows:

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.

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.

The sealing of an arrest pursuant to this section does not affect your 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.

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 sealing is accomplished as follows:

The court shall provide copies of the order and a report on the disposition of the arrest, as follows:

(1) Upon issuing the order, the court shall provide a copy to you and to the prosecuting attorney.

(2) Within 30 days of issuing the order, the court shall forward a copy of the order to the law enforcement agency that made the arrest, to any other law enforcement agency that participated in the arrest, and to the law enforcement agency that administers the master local summary criminal history information that contains the arrest record for the sealed arrest.

(3) Within 30 days of issuing the order, the court shall send a disposition report to the Department of Justice indicating that relief has been ordered and providing the section of the Penal Code under which that relief was granted and the date that relief was granted.

(4) A sealing order made under Penal Code Section 851.92(b) shall not be forwarded to the Department of Justice to be included or notated in the department’s manual or electronic fingerprint image or criminal history record systems. Any sealing order made pursuant to Penal Code Section 851.92(b) and received by the Department of Justice shall not be processed by the department.

(5) A police investigative report related to the sealed arrest shall, only as to the person whose arrest was sealed, be stamped “ARREST SEALED: DO NOT RELEASE OUTSIDE THE CRIMINAL JUSTICE SECTOR,” and shall note next to the stamp the date the arrest was sealed and the section pursuant to which the arrest was sealed. The responsible local law enforcement agency shall ensure that this note is included in all master copies, digital or otherwise, of the police investigative report related to the arrest that was sealed.

(6) Arrest records, police investigative reports, and court records that are sealed under Penal Code Section 851.92 shall not be disclosed to any person or entity except the person whose arrest was sealed or a criminal justice agency. Nothing shall prohibit the disclosure of information between criminal history providers.

(7) Notwithstanding the sealing of an arrest, a criminal justice agency may continue, in the regular course of its duties, to access, furnish to other criminal justice agencies, and use, including, but not limited to, by discussing in open court and in unsealed court filings, sealed arrests, sealed arrest records, sealed police investigative reports, sealed court records, and information relating to sealed arrests, to the same extent that would have been permitted for a criminal justice agency if the arrest had not been sealed.

Your arrest record shall be updated, as follows:

The local summary criminal history information shall include, directly next to or below the entry or entries regarding the sealed arrest, a note stating “arrest sealed” and providing the date that the court issued the order, and the section pursuant to which the arrest was sealed. This note shall be included in all master copies of the arrest record, digital or otherwise.

The state summary criminal history information shall include, directly next to or below the entry or entries regarding the sealed arrest, a note stating “arrest relief granted,” providing the date that the court issued the order and the section of the Penal Code pursuant to which the relief was granted. This note shall be included in all master copies of the arrest record, digital or otherwise.

If you have been arrested but not convicted, contact The Law Office of Richard Wagner for a FREE Consultation (714) 721-4423 about sealing your arrest records.