Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

  1. Home
  2.  » 
  3. Criminal Defense
  4.  » 
  5. General Defense Representation
  6.  » Sealing Arrest & Court Records

Petitions to Seal Arrest Records Under Penal Code Section 851.91

On October 11, 2017, Governor Newsom signed Senate Bill No. 393 into law. (Stats. 2017, ch. 680.) The purpose of this bill, known as the Consumer Arrest Record Equity Act, was to “authorize a person who has suffered an arrest that did not result in a conviction, as specified, to petition the court to have his or her arrest sealed.” (Stats. 2017, ch. 680.) In other words, if you were arrested but ultimately never convicted, you can petition a court to have your arrest records sealed. This can be very helpful for individuals applying for jobs that require background checks.

Who is eligible to have their arrest records sealed?

California Penal Code section 851.91, subdivision (a), states that a person is eligible to have their arrest records sealed if they “suffered an arrest that did not result in a conviction.” (Pen. Code, § 851.91, subd. (a).) The section specifies that an arrest did not result in a conviction if any of the following are true:

  1. 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.
  2. 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 the arrestee has 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.

(Pen. Code, § 851.91, subd. (a)(1).)

Nevertheless, an individual is not eligible to have their arrest records sealed under any of these circumstances:

  1. He or she may still be charged with any of the offenses upon which the arrest was based.
  2. 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.
  3. The petitioner 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 that were adjudicated before the case closed with no conviction does not establish intentional evasion.
  4. The petitioner intentionally evaded law enforcement efforts to prosecute the arrest by engaging in identity fraud and was subsequently charged with a crime for that act of identity fraud.

(Pen. Code, § 851.91, subd. (a)(2).)

What is the process for having your arrest records sealed?

 Subdivision (b)(1) of section 851.91 outlines all of the requirements of a petition to seal an arrest record. (Pen. Code, § 851.91, subd. (b)(1).) Included in these are that the petition be served on the prosecuting agency where the arrest occurred at least fifteen days prior to the hearing on the petition and that it contain sufficient information regarding the arrest. (Pen. Code, § 851.91, subd. (b)(1).)

Under what circumstances will a court grant a petition to seal arrest records?

 Subdivision (c) of section 851.91 states that “[a] petition to seal an arrest record pursuant to this section may be granted as a matter of right or in the interests of justice.” (Pen. Code, § 851.91, subd. (c).) Thus, there are two different types of petitions to seal arrest records.

As a matter of right

“As a matter of right” is the default for a petition to have an arrest record sealed. Section 851.91, subdivision (c)(1) states that “[a] petitioner who is eligible for relief under subdivision (a) is entitled to have his or her arrest sealed as a matter of right unless he or she is subject to paragraph (2).” (Pen. Code, § 851.91, subd. (c)(1).)

In the interests of justice

There are three types of cases where a petitioner must show that having their arrest record sealed would serve the interests of justice. More specifically, a petitioner who was arrested or charged with one of the following offenses must show that granting the petition would be in the interests of justice:

  1. Domestic violence, if the petitioner’s record demonstrates a pattern of domestic violence arrests, convictions, or both.
  2. Child abuse, if the petitioner’s record demonstrates a pattern of child abuse arrests, convictions, or both.
  3. Elder abuse, if the petitioner’s record demonstrates a pattern of elder abuse arrests, convictions, or both.

(Pen. Code, § 851.91, subd. (2)(A)(i).) In this context, a pattern is defined as “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, subd. (2)(A)(ii).)

When determining whether sealing an arrest record would be in the interests of justice, courts are permitted to consider any relevant factors, including hardship caused by the arrest, evidence regarding the petitioner’s good character, evidence regarding the arrest, and the petitioner’s record of convictions. (Pen. Code, § 851.91, subd. (2)(B).)