Sealing Arrest and Related Records

Penal Code (PC) §851.91 has only been available for a few years.  A Google search of California Penal Code §851.91 will provide you with the entire text of the law.  It is sort of hybrid between what is commonly referred to as an Expungement and a Request for a Certificate of Detention Only, except that it proposes to actually seal the record of arrest.  With an Expungement, under Penal Code (PC) §1203.4, an individual is permitted to withdraw the plea or verdict in a criminal case and the charges are dismissed.  It doesn’t actually seal the record though, and the individual is still required to disclose the matter in certain instances.  A Request for a Certificate of Detention Only changes the record of an arrest to one of a detention so that it appears more like a traffic stop.  There are certain limitations as to eligibility in both code sections.

PC §851.91 also has limitations but may be a better way to clear up your record if your case qualifies.  First and foremost, whether you were arrested and charged by the prosecution with a crime or you were arrested but never charged with the crime, you must not have suffered a conviction.  If this applies to you, we invite you to contact us for a free consultation.

One of the considerations that you should be aware of is that the Statute of Limitations must have run.  This means that the prosecution no longer has the ability to file charges for the offense.  For Misdemeanor offense, there is a one (1) year Statute of Limitations.  The Statute of Limitations varies for Felony cases.

The section of PC §851.91, that I mentioned that is similar to the language and limitation of PC §1203.4, is found at the end of the code section and reads as follow;  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 of local agency, or for contracting with the California State Lottery Commission. Still, this appears to be a valuable tool for masking arrests from potential employers.

If the court grants the motion, certain procedures take place.  If the court issues the Order, they provide a copy to the person whose arrest was sealed and to the prosecuting attorney.  Within 30 days of issuing the Order the court shall forward a copy to the law enforcement agency that made the arrest and any other law enforcement agency that participated in the arrest and to the master local summary criminal history information that contains the arrest record for the sealed arrest. 

Also, within 30 days the court shall furnish a disposition report to the Department of Justice indicating relief has been ordered and shall include the Penal Code and the date the relief was granted.  Then the arrest record shall be updated as follows; the local summary criminal history shall include a note stating “arrest sealed” and shall be included in all master copies of the arrest record, digital or otherwise.  If there were co-defendants, the record will only be sealed as to the person whose arrest was sealed.

Don’t confuse PC §851.91 with PC §851.8, as it is a Petition for destruction of arrest records based on a finding of Factual Innocence.  This code section requires a determination that the person arrested is factually innocent and requires the concurrence of the law enforcement agency that made the arrest and the prosecution attorney.  Even then, the record is sealed for three (3) years from the date of the arrest and only after that, the arrest record and the petition are destroyed.   

There are even penalties for the unauthorized disclosure of sealed arrest records under Penal Code §851.92.  The code states that a person or entity other than a criminal justice agency or the person whose arrest record was sealed, who disseminates information relating to a sealed arrest record is subject to a civil penalty of not less than five hundred ($500) and not more than twenty-five hundred ($2500) per violation.  

For the better part of the last 25 plus years my practice has focused on DUI defense.  Still, I have long been an advocate for programs and laws that allow people a second chance such as Diversion and Delayed Entry of Judgement, etc.  This newer code section is especially valuable to persons seeking employment that wish to do so without the stigma of the blemish on their record.