Sealing Criminal Records in California After an Arrest

An arrest in California, whether charges are never filed or a case is dismissed (e.g., for insufficient evidence), can impact our client’s employment, licensing, and firearm rights. California law offers several methods to seal arrest and related court records, each with specific eligibility criteria and implications. This article outlines these options, their processes, and their effects on firearm rights, helping our client clear their record after an arrest. Penal Code § 851.92 governs the procedural implementation of sealing orders under the methods below, ensuring records are marked as sealed and restricted from public access.

Methods for Sealing Records

Below are the primary methods to seal records after an arrest, listed in numerical order of the Penal Code sections, applicable whether charges were never filed or were filed and dismissed. Sealing orders are executed per § 851.92, which restricts record access to criminal justice agencies and allows our client to state they were not arrested in most contexts.

1. Factual Innocence (Penal Code § 851.8)

• Overview: This method seals and destroys arrest and court records if the court finds our client factually innocent, meaning no reasonable cause exists to believe they committed the offense.
• Eligibility: Available for arrests where no charges were filed, charges were dismissed (e.g., for insufficient evidence), or our client was acquitted. Our client must prove factual innocence, a high standard requiring strong evidence (e.g., alibi, mistaken identity).
• Process: Our client files a petition with the arresting agency or court if charges were filed. If denied, they can petition the court. A hearing may be held.
• Firearm Rights: No conviction means firearm rights are unaffected. Sealing ensures the arrest doesn’t appear in background checks, protecting firearm purchase eligibility. It doesn’t restore firearm rights, as no prohibition exists.
• Suitability: Suitable if our client has compelling evidence of innocence and seeks to eliminate both arrest and court records. It’s comprehensive but challenging due to the high evidentiary burden.

2. Sealing After Prefiling Diversion (Penal Code § 851.87)

• Overview: This method allows sealing of arrest records for our client who successfully completes a prefiling diversion program offered by a prosecutor instead of filing charges.
• Eligibility: Applies to arrests where our client completed a prefiling diversion program (Penal Code § 950), avoiding charges.
• Process: Our client petitions the superior court, serving the prosecutor and arresting agency, who may request a hearing within 60 days. If granted, records are sealed per § 851.92, and our client can state they were not arrested.
• Firearm Rights: No conviction means no firearm prohibition. Sealing ensures the arrest doesn’t affect background checks (e.g., NICS). Like § 851.93, it doesn’t affect firearm authorization if the arrest would otherwise apply.
• Suitability: Suitable if our client completed a prefiling diversion program. Note that § 851.93 may automatically seal such arrests, reducing the need for a petition.

3. Sealing After Drug Diversion or Deferred Entry of Judgment (Penal Code § 851.90)

• Overview: This method seals arrest records for our client who successfully completes a drug diversion program (Penal Code § 1000.5) or deferred entry of judgment program (§§ 1000, 1000.8).
• Eligibility: Applies to arrests where our client completed the specified program, avoiding conviction.
• Process: The court may order sealing upon motion or its own initiative, notifying all parties. Records are sealed per § 851.92, and our client can state they were not arrested.
• Firearm Rights: No conviction means no firearm ban. Sealing protects firearm eligibility. It doesn’t affect firearm authorization if the arrest would otherwise apply.
• Suitability: Suitable if our client completed a drug diversion or deferred entry program. Overlaps with § 851.93 for some diversion cases.

4. Petition to Seal Arrest Records (Penal Code § 851.91)

• Overview: This method allows our client to petition to seal arrest records for non-conviction arrests since January 1, 1976, if sealing serves the “interests of justice” for certain offenses.
• Eligibility: Applies to arrests where no charges were filed (statute of limitations expired), charges were dismissed and cannot be refiled, or our client was acquitted. Ineligible if charges can still be filed or for certain serious offenses (e.g., murder). For domestic violence, child abuse, or elder abuse with a pattern (2+ convictions or 5+ arrests in 3 years), sealing requires showing it serves justice.
• Process: Our client files a verified petition with the court, serving the prosecutor and arresting agency. A hearing may be held, and evidence presented. Records are sealed per § 851.92.
• Firearm Rights: No conviction means no firearm ban. Sealing protects firearm eligibility. Per § 851.91(e)(2)(B)(iii), sealing does not affect firearm authorization or susceptibility to convictions (e.g., Penal Code § 29800) if the arrest would otherwise apply.
• Suitability: Suitable if our client’s arrest predates 2021, automatic sealing under § 851.93 hasn’t occurred, or they can show sealing serves justice (e.g., for employment).

5. Automatic Sealing of Arrest Records (Penal Code § 851.93)

• Overview: This method provides automatic relief by sealing arrest records for non-conviction arrests since January 1, 1973, without requiring a petition, operative from October 1, 2024.
• Eligibility: Applies to arrests where:
  • Misdemeanor charges were dismissed (e.g., for insufficient evidence).
  • No misdemeanor charges were filed, 1 year has elapsed, and no conviction occurred.
  • No felony charges were filed, 3 years (or 6 years for serious felonies) have elapsed, and no conviction occurred.
  • Our client completed a diversion program (e.g., prefiling, drug, or pretrial).
• Process: The Department of Justice (DOJ) reviews records monthly and grants relief if eligibility is confirmed, marking records as “arrest relief granted” per § 851.92. Courts are notified to restrict record access.
• Firearm Rights: No conviction means no firearm prohibition. Sealing ensures the arrest doesn’t affect background checks. Per § 851.93(d)(4), relief does not affect firearm authorization or susceptibility to convictions if the arrest would otherwise apply.
• Suitability: Suitable if our client’s arrest meets the criteria (e.g., dismissed case or no charges) and occurred post-1973, especially for recent arrests. It’s the most accessible option due to automation.

6. Sealing for Human Trafficking Victims (Penal Code § 851.865)

• Overview: This allows sealing of arrest records for our client who was a human trafficking victim at the time of arrest for specific offenses.
• Eligibility: Limited to arrests for nonviolent offenses (e.g., Penal Code §§ 647(a), 647(b), 653.22) caused by human trafficking victimization.
• Process: Our client files a court petition, proving victimization by a preponderance of evidence. If granted, records are sealed and destroyed per § 851.92.
• Firearm Rights: No conviction means no firearm ban. Sealing ensures the arrest doesn’t affect firearm checks. It doesn’t restore firearm rights, as no ban applies.
• Suitability: Suitable if our client was arrested for a qualifying offense and was a trafficking victim.

7. Dismissal and Record Clearance (Penal Code § 1203.4)

• Overview: Known as “expungement,” this dismisses a case or conviction but doesn’t seal records. It’s typically for cases involving probation.
• Eligibility: Available for misdemeanors or felonies with completed probation, or some dismissed cases. Not applicable for arrests without charges or certain serious offenses.
• Process: Our client files a court petition. If granted, the record shows a dismissal, but records remain accessible.
• Firearm Rights: Per § 1203.4(a), it does not restore firearm rights. With no conviction, our client’s firearm rights are unaffected, but unsealed records could cause background check issues.
• Suitability: Less suitable, as our client’s arrest led to no conviction, and § 1203.4 doesn’t seal records.

8. Sealing Juvenile Records (Welfare and Institutions Code § 781)

• Overview: This seals juvenile arrest and court records.
• Eligibility: Applies to juvenile arrests, typically after our client turns 18.
• Process: Our client files a juvenile court petition. If granted, records are sealed and may be destroyed.
• Firearm Rights: Juvenile adjudications may impose firearm bans. Sealing doesn’t restore rights if a ban exists. For non-conviction arrests, sealing protects firearm eligibility.
• Suitability: Suitable if our client was a minor at the time of arrest.

9. Compassionate Release or Clemency (Penal Code § 4852.01 et seq.)

• Overview: Involves a pardon or certificate of rehabilitation, rarely leading to sealing.
• Eligibility: For convicted individuals, not arrests without convictions.
• Process: Apply through the Governor’s Office or court.
• Firearm Rights: May restore rights for felonies, but irrelevant for non-conviction arrests.
• Suitability: Not suitable, as our client has no conviction.

Quick Summary

For an arrest where charges were dismissed (e.g., for insufficient evidence), the following options are most appropriate:

• Primary Recommendation: Penal Code § 851.93
  The most accessible method for post-1973 arrests, with automatic sealing from October 1, 2024, for dismissals like our client’s case. Our client should verify DOJ sealing or pursue other methods if ineligible.
• Alternative: Penal Code § 851.91
  Suitable for pre-2021 arrests or if automatic sealing hasn’t occurred. Our client must petition the court, showing sealing serves justice, ideal for dismissed cases.
• Consider Penal Code § 851.8
  Ideal if our client has strong evidence of factual innocence, sealing and destroying records. It’s comprehensive but has a high evidentiary burden.
• Penal Code §§ 851.87 or 851.90
  Relevant if our client completed a prefiling diversion (§ 851.87) or drug diversion/deferred entry program (§ 851.90). Note that § 851.93 may cover these automatically.
• Penal Code § 851.865
  Applicable if our client was a human trafficking victim arrested for specific offenses.
• Juvenile Cases
  Use Welfare and Institutions Code § 781 if our client was a minor.
• Avoid Penal Code § 1203.4
  Unnecessary, as it doesn’t seal records and is irrelevant without a conviction.

Impact on Firearm Rights

No conviction means no firearm prohibition under California (Penal Code § 29800) or federal law (18 U.S.C. § 922(g)). Unsealed arrest records could cause firearm purchase delays if flagged in the CA DOJ records or in NICS. Key points:

• Sealing Protects Eligibility: Sealing under §§ 851.93, 851.91, 851.87, 851.90, 851.8, or 851.865 ensures records don’t appear in background checks, safeguarding firearm rights. Per §§ 851.93(d)(4) and 851.91(e)(2)(B)(iii), sealing does not affect firearm authorization or susceptibility to convictions if the arrest would otherwise apply (e.g., if it led to a prohibition). Sections 851.87, 851.90, and 851.865 have similar implications.
• Penal Code § 1203.4 Limitation: Does not restore firearm rights. It is not a true sealing of the records. Irrelevant here, but unsealed records could cause issues.
• No Restoration Needed: Our client’s firearm rights are intact; sealing prevents complications.

Next Steps for Our Client

1. Confirm Arrest Details: Verify arrest date, offense, whether charges were filed, and if adult or juvenile. This can be accomplished by requesting your records via the California Department of Justice using the BOF 8016crr form.
2. Check DOJ Records: For § 851.93, confirm automatic sealing (post-2024) or file petitions under §§ 851.91, 851.87, or 851.90 if needed.
3. Gather Evidence for § 851.8: Collect proof of innocence for factual innocence petitions.
4. Evaluate § 851.865: Gather victimization evidence if applicable.
5. Consult County Procedures: Check local court forms (e.g., Los Angeles, San Francisco).
6. Ensure Firearm Compliance: Use Live Scan BOF8016crr to confirm record status before firearm purchases.

Conclusion

Sealing records after an arrest—whether charges were never filed or dismissed—is vital for our client’s future. Penal Code § 851.93 offers automatic sealing for recent arrests, § 851.91 provides a petition-based option for older cases, and § 851.8 is ideal for proving innocence. Sections 851.87, 851.90, and 851.865 apply to specific diversion or trafficking cases. Per § 851.92, sealing orders ensure records are restricted, protecting firearm rights and opportunities. Legal counsel and county-specific procedures will maximize success.