SEALING YOUR ARREST RECORD "AS A MATTER OF RIGHT" UNDER PENAL CODE SECTION 851.91
On January 1, 2018, Penal Code Section 851.91 went into effect. This newly enacted statute allows arrestees to seal their arrest records "as a matter of right" or "in the interests of justice" if the arrest did not result in a conviction.
Eligibility as a Matter of RightPreviously, arrest records could only be sealed under Penal Code Section 851.8, which required one to prove they were "factually innocent" of the charges. Even if one did prove factual innocence, the records would not be sealed if an arrestee filed a civil action against police officers who made the arrest. The burden to prove factual innocence in these cases was quite high and motions to seal arrest records were rarely pursued or granted.
Under the new statute, one may have their arrest record sealed "as a matter of right" and destroyed if: 1. the arrest did not result in a pleading being filed by the prosecuting attorney and the statute of limitations has run on all charges; 2. a pleading was filed but no conviction occurred and the case was dismissed and the charges may not be refiled; 3. no conviction occurred and the defendant was acquitted; or 4. a conviction occurred that was overturned on appeal.
Non-eligible Arrest RecordsArrest records are not eligible under this statute if: 1. the charges may still be filed by the prosecuting attorney; 2. the arrest was made for a charge such as murder in which there is no statute of limitations; or 3. the defendant purposely evaded "law enforcements efforts to prosecute the arrest" by leaving the jurisdiction or engaging in identity fraud.
Eligibility In the Interest of JusticeIn cases where one has a pattern of arrests and/or convictions for Domestic Violence, Child Abuse, or Elder Abuse, the arrestee must prove that sealing his/her arrest records would be in the interests of justice. A pattern means 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." This means if there is a pattern of arrests or convictions for violence in a domestic setting, the records will not be sealed as a matter of right.
To determine whether the interests of justice would be served in the cases above, courts considering the following factors: 1. hardship to the petitioner caused by the arrest that is the subject of the petition; 2. declarations and evidence regarding the petitioner's good character; 3. any evidence concerning the arrest; 4. the petitioners criminal history, if any; and 5. any other factors the court deems relevant.
In all cases, the petitioner has the burden to prove their arrest record should be sealed as a matter of right or in the interests of justice. If the petitioner meets this burden, then the burden shifts to the prosecuting attorney to provide reasons why the court should deny the petition.