Being arrested for a crime can have serious consequences, even when prosecutors never file criminal charges. Many people assume that if the district attorney declines to prosecute, the arrest automatically disappears from their criminal record. Unfortunately, that is not necessarily true.
In California, an arrest can remain on a person's criminal history even when no charges were filed, the case was dismissed, or the person was never convicted of a crime.
Fortunately, California Penal Code Section 851.91 provides a procedure for eligible individuals to petition the court to seal an arrest record when the arrest did not result in a conviction. In some circumstances, arrest record sealing is available without the need to establish factual innocence.
If you were arrested in Chico, Butte County, Glenn County, Tehama County, Yuba County, or Sutter County but never formally charged with a crime, an experienced Northern California criminal defense attorney can help determine whether your arrest record is eligible for sealing.
Does an Arrest Stay on Your Record If Charges Were Never Filed?
Yes. An arrest may remain on your criminal history even when the district attorney decides not to file charges.
When someone is arrested in California, the arresting agency generally creates a record of the arrest. Information concerning the arrest may also be reported to the California Department of Justice.
The decision not to prosecute does not necessarily eliminate those records.
Consequently, a person may have an arrest history even though they have never been convicted of a criminal offense.
This can be frustrating for individuals who were arrested following allegations that were never substantiated or for whom prosecutors concluded that criminal charges were not warranted.
Although California law restricts how many employers may consider or inquire about arrests that did not result in convictions, arrest records can still create concerns involving professional licensing, certain employment opportunities, and background investigations.
What Is Arrest Record Sealing Under Penal Code Section 851.91?
California Penal Code Section 851.91 allows certain individuals who were arrested but not convicted to petition to have their arrest records sealed.
This procedure is different from expungement under Penal Code Section 1203.4.
Expungement generally concerns relief following a criminal conviction. Arrest record sealing under Penal Code Section 851.91 concerns arrests that did not result in a conviction.
Depending on the circumstances, an individual may be eligible for sealing when:
The person was arrested but the district attorney never filed criminal charges, and prosecution is no longer legally permitted.
Criminal charges were filed but subsequently dismissed, and they cannot be refiled.
The person was charged with a crime and acquitted.
The person successfully completed certain qualifying diversion programs.
Importantly, eligibility depends on the circumstances of the arrest and the statutory requirements.
Can You Seal an Arrest If the Statute of Limitations Has Not Expired?
This is one of the most important questions for individuals who were arrested but never charged.
Under Penal Code Section 851.91, when an arrest did not result in criminal charges, eligibility generally depends on whether the applicable statute of limitations has expired or prosecution is otherwise legally barred.
For example, suppose someone is arrested for misdemeanor battery under Penal Code Section 242, but the district attorney declines to file charges.
If the applicable statute of limitations has not expired, the individual may not yet qualify for relief under the ordinary provisions of Section 851.91.
For many California misdemeanors, the statute of limitations is one year under Penal Code Section 802. However, exceptions exist, and some offenses have longer filing periods.
Similarly, many felony offenses are subject to a three-year limitations period under Penal Code Section 801, although certain felonies have longer periods or no limitations period.
The fact that a prosecutor declined to file charges does not necessarily mean the arrest can immediately be sealed.
A criminal defense attorney can evaluate the particular offense, applicable limitations period, and whether another form of relief may be available.
Do You Have to Prove You Were Innocent to Seal an Arrest?
Not necessarily.
One significant benefit of Penal Code Section 851.91 is that eligible individuals generally do not have to prove factual innocence to obtain relief.
In many qualifying cases, arrest record sealing is available as a matter of right.
However, the statute also establishes exceptions, including circumstances involving certain patterns of arrests or convictions for specified offenses. In those cases, the court may apply an interests-of-justice standard.
This differs from a petition for a finding of factual innocence under Penal Code Section 851.8.
Under Section 851.8, the petitioner must satisfy a more demanding standard relating to the absence of reasonable cause to believe the person committed the offense.
Although factual innocence relief can provide additional benefits, it is not necessary for every arrest record sealing petition.
How Do You Seal an Arrest Record in California?
The process generally involves submitting a petition under Penal Code Section 851.91 to the appropriate superior court.
A typical petition may involve the following steps:
1. Determine eligibility. The first step is to determine whether the arrest qualifies for sealing, including whether charges were filed, the outcome of any criminal proceedings, and whether the applicable limitations period has expired.
2. Obtain the relevant arrest information. The petition must identify the arrest and provide the information required by statute. Police reports, arrest records, and court records may help establish eligibility.
3. Prepare and file the petition. The petition is generally filed in the superior court with jurisdiction over the arrest or criminal proceedings.
4. Provide the required notice. The petition must be served as required by law, including on the prosecuting agency and law enforcement agency.
5. Attend a hearing if necessary. The court may schedule a hearing to determine whether the petitioner qualifies for relief.
6. Obtain an order sealing the arrest. If relief is granted, the court issues an order directing the appropriate agencies to seal the arrest records in accordance with California law.
A criminal defense attorney can help ensure the petition is properly supported and that the applicable procedural requirements are satisfied.
What Happens After an Arrest Record Is Sealed?
When an arrest record is sealed under Penal Code Section 851.91, the arrest generally is not disclosed to ordinary members of the public through the affected official records.
The statute also provides that a sealed arrest is generally treated as though it did not occur, subject to important statutory exceptions.
For many individuals, this can provide meaningful relief from the stigma associated with an arrest that never resulted in a conviction.
However, sealing an arrest does not mean that every record of the incident is physically destroyed or that the arrest becomes invisible for every legal purpose.
Certain government agencies may retain access to sealed records under circumstances authorized by law.
Likewise, sealing may not eliminate independent records maintained by private entities or information previously published online.
Will a Sealed Arrest Appear on a Background Check?
In many ordinary employment and housing screening situations, a properly sealed arrest should no longer appear through the official criminal history records covered by the sealing order.
However, there are exceptions.
Certain government agencies and licensing authorities may have access to sealed records when authorized by statute.
In addition, private background reporting companies may possess information collected before the arrest was sealed. Separate laws may govern whether those companies can continue reporting that information.
For these reasons, individuals should not assume that a sealing order guarantees that every reference to the arrest will disappear from every database.
Nevertheless, obtaining an arrest sealing order can be an important step toward protecting employment opportunities and personal reputation.
Can You Seal an Arrest for Domestic Violence or DUI?
Potentially, yes.
California Penal Code Section 851.91 is not limited to minor offenses.
For example, an individual arrested for domestic violence under Penal Code Section 243(e)(1) or 273.5 may potentially qualify for arrest record sealing if the case did not result in a conviction and the applicable eligibility requirements are satisfied.
Similarly, someone arrested for DUI under Vehicle Code Section 23152 who was never formally charged may become eligible for relief.
However, the circumstances of the arrest, the applicable statute of limitations, and any other statutory restrictions must be evaluated.
The nature of the original allegation does not, by itself, determine eligibility.
What Is the Difference Between Arrest Record Sealing and Expungement?
Although the terms are sometimes used interchangeably, arrest record sealing and expungement are different legal remedies.
Arrest record sealing under Penal Code Section 851.91 generally applies when an arrest did not result in a conviction. The purpose is to restrict disclosure of the arrest record.
Expungement under Penal Code Section 1203.4 generally applies to eligible individuals who were convicted of a crime and subsequently satisfy the requirements for dismissal of the conviction.
An expungement does not ordinarily erase the historical fact of the conviction. Instead, it provides a statutory dismissal with certain legal benefits and limitations.
Determining which remedy is appropriate depends primarily on whether the individual was convicted and the procedural history of the case.
What If You Were Arrested but Never Went to Court?
It is possible to be arrested, released from custody, and never receive a court date because prosecutors declined to file charges.
However, the absence of a court appearance does not necessarily mean that the arrest has been removed from your criminal record.
If you were arrested and never received notice of formal charges, an attorney can help determine whether the district attorney filed a case, whether prosecution remains possible, and whether you qualify for arrest record sealing.
In some circumstances, obtaining confirmation that no charges were filed may be useful in preparing the petition.
Why Should You Consider Sealing an Arrest That Never Resulted in Charges?
An arrest can carry a stigma even when the allegations were never proven.
Individuals may be concerned about how an arrest could affect employment, professional licensing, educational opportunities, or their personal reputation.
California's arrest record sealing laws recognize that individuals who were never convicted should have opportunities to limit the continuing consequences of an arrest.
For eligible individuals, obtaining a sealing order can provide meaningful protection against the unnecessary disclosure of criminal history information.
Contact a Northern California Criminal Defense Attorney About Arrest Record Sealing
If you were arrested but never charged with a crime, you may have legal options to seal the arrest record.
However, eligibility depends on several factors, including the nature of the alleged offense, whether charges were ever filed, the applicable statute of limitations, and the circumstances surrounding the arrest.
An experienced criminal defense attorney can evaluate whether you qualify for relief under Penal Code Section 851.91 or whether another remedy, such as a factual innocence petition under Penal Code Section 851.8, may be appropriate.
If you are seeking to seal an arrest record in Chico, Butte County, Glenn County, Tehama County, Yuba County, Sutter County, or elsewhere in Northern California, consulting a criminal defense attorney can help you understand the process and pursue the relief available under California law.
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