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How To Seal and Destroy Arrest Records - Penal Code 851.87 PC

Posted by Dmitry Gorin | Mar 31, 2022

What Does It Mean to Seal and Destroy Arrest Records?

Under California law, anyone arrested for a crime but not convicted can get their arrest records sealed and destroyed as a matter of right. It won't appear on most criminal background checks after it has been sealed.

Seal and Destroy Arrest Records in California
If you were arrested but never charged, you could be eligible to get the arrest record sealed.

It also means that any arrest records, such as the police report, jail booking photo, fingerprints, and rap sheet, will be deleted. It's not available for everyone arrested, and there are several requirements and restrictions.

When an arrest record is sealed, it's not made available to the public. California law under Penal Code 851.87 PC states that an individual has a right to have their record sealed if one of the following circumstances is present:

  • The individual was detained but not arrested,
  • The individual was arrested but not criminally charged by the prosecutor,
  • The individual was charged, but the charges were ultimately dismissed, or
  • The individual was charged and tried, but the case did not result in a conviction.

If an individual was arrested, criminally charged, and convicted, the only way to remove the arrest record is to seek and obtain an expungement of the conviction.

In California, the petition to request that arrest records are sealed and destroyed must be filed in the county where the arrest occurred. The petition has to be served on the prosecuting agency and the police department that made the arrest.

Next, a hearing will occur where a judge will decide whether to grant or deny the petition. A lawyer can deal with the entire process for you. In this article by our Los Angeles criminal defense attorneys, we will examine this topic in more detail below.

Who is Eligible?

Penal Code 851.87 PC is part of California Senate Bill 393, which took effect in October 2017.  It allows people to have their arrest record sealed as a “matter of right” under the following circumstances:

  • No criminal charges were filed,
  • Criminal charges were filed but were dismissed later,
  • You were found not guilty in a jury trial,
  • Your conviction was vacated or overturned on appeal, or
  • You completed a pretrial diversion program, such as Penal Code 1000 PC deferred entry of judgment.

An exception to PC 851.87 sealing an arrest record is when the arrested person has a history of arrest or convictions for domestic violence, elder abuse, and child abuse. However, a judge could still decide to grant the petition if they determine it will serve the interest of justice.

Before Senate Bill 393, it was harder for people to get their arrest records sealed after being arrested but never charged. They were required to file a petition for factual innocence under Penal Code 851.8 PC even in a situation when the prosecutor never filed charges, or they were filed but dismissed later.  Their arrest would remain on their criminal background checks.

Who is Ineligible for Arrest Record Sealing?

There are exceptions under PC 851.87 that would make you ineligible to have your arrest record sealed, such as the following:  

  • You have a history of arrest or convictions for domestic violence, elder abuse, or child abuse;
  • You could still be criminally charged with a crime based on the arrest because the statute of limitation has not expired or charges can be refiled;
  • The arrest was for murder or other serious offenses that don't have a statute of limitations;
  • You intentionally evaded efforts by law enforcement to prosecute the arrest by leaving the jurisdiction;
  • You evaded efforts of prosecution by engaging in identity theft.

Can a Sealed Arrest Record Still Be Used?

Yes. Although sealing an arrest record mostly destroys the information, it does not mean it can't ever be legally used against you. The sealed arrest could be used if the petitioner is subsequently prosecuted for any other offense. 

Further, in the performance of their duties, a law enforcement agency could still access and disclose the arrest record. Sealing an arrest record doesn't provide relief from any of the following circumstances:

  • A mandatory duty to register as a sex offender under Penal Code 290 PC;
  • Prohibiting someone from owning or possessing a firearm or criminal liability for violating the felon with a firearm law;
  • An obligation to disclose arrest when applying to become a police officer, obtaining a professional license, or running for public office.

Readers should note that Penal Code 851.87 PC sealing an arrest record only applies to the specific arrest in question. In other words, it doesn't erase a person's entire criminal history.

What are the Benefits?

If an individual successfully has their arrest records sealed and destroyed, they can enjoy several benefits. If a background check is initiated, sealed and destroyed arrest records will not appear in the results. This can be beneficial when the individual:

  • Applies for a job,
  • Applies for housing,
  • Applies for a professional license,
  • Applies for school,
  • Applies for financing.

As you can see, simply having an arrest record can make any of the above tasks more difficult or even impossible. If individuals are arrested for domestic violence, they can lose Second Amendment rights to own a firearm. If the individual successfully gets arrest records sealed and destroyed, they can have gun rights restored.

If you have no other criminal record, sealing and destroying your arrest record will clear your criminal history. If a record is sealed and later gets improperly released, then the person or entity that released the record is subject to a civil penalty between $500 and $2,500.

What is the Process of Sealing an Arrest Record?

The recent law under California Penal Code 851.91 PC doesn't mean your arrest will be automatically sealed if you are acquitted of the crime. You will need a lawyer to guide you through the court process of filing a petition to seal your arrest.

Process of Sealing an Arrest Record
You should retain an attorney to guide you through the process of sealing an arrest record.

The petition must be submitted in the court where charges based on the arrest were filed or in the county where the arrest occurred. The petition to seal your record of arrest has to be served on both:

  • the law enforcement agency who arrested you, and
  • the prosecuting attorney in the city where the arrest occurred.

The petition to seal your record of arrest must include the information:

  • name, date of birth, and the date of arrest;
  • name of the law enforcement agency that made the arrest;
  • city and county where it occurred;
  • information about the arrest, such as the court and case number;
  • the alleged crime upon which the arrest was based.

Once the prosecuting agency receives the petition to seal an arrest record, they could request a hearing to challenge it within 60 days after being served.

At the hearing, a judge will review your arrest record and decide whether the interests of justice would be served by granting your petition. Your attorney can argue on your behalf why the petition should be granted. The entire process of sealing an arrest record in California takes about three months.

If you need assistance in getting your arrest record sealed under Penal Code 851.97, content our office to review your situation. Eisner Gorin LLP is located in Los Angeles County and serves people across Southern California. You can reach us for an initial case review by calling (877) 781-1570 or filling out our contact form.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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