Orange County Criminal Defense

Close this search box.

Sealing Arrest Records

June 22, 2018

Fred Thiagarajah

When someone is accused of a crime, but never convicted of a crime, that person can file a motion to seal their arrest records.  A motion to seal arrest records can apply when someone:
(a) Has been arrested for a crime but never charged with a crime;
(b) Has been charged with a crime, but the case was dismissed*;
(c) Has been charged with a crime and was acquitted after trial.

*If the person pled guilty but the case was dismissed through diversion, then a petition to seal arrest records may not be available.

There are currently two types of petitions that seal arrest records. Penal Code section 851.8 allows someone to file a petition for factual innocence and to seal their arrest records. Penal Code section 851.91 only allows a person to seal their arrest records. The purpose of this article is to compare the advantages and disadvantages of a motion to seal records pursuant to PC 851.8 and PC 851.91.

Motion for Factual Innocence – Penal Code 851.8

Penal Code section 851.1 allows a petitioner to request a finding of factual innocence from the judge and then have their arrest records sealed. This petition provides the most comprehensive relief. When someone is accused of a crime, but never convicted, the assumption is that there was not enough evidence to convict the person beyond a reasonable doubt. However, that doesn’t mean that the person is actually innocent of the crime. A petition pursuant to PC 851.8 requests that the court make a finding that the petitioner is actually innocent. Once that finding is made, the person’s arrest records get sealed.

Timeline – These petitions must be filed within two years of the arrest date unless the petitioner can establish good cause.

Difficulty – These petitions are very difficult to win. When a person is accused of a crime, the burden is on the prosecution to show guilt. In a petition for factual innocence, the burden is on the petitioner to show that he or she should never have been arrested in the first place. Since police officers only need probable cause to arrest someone, proving that the police lacked probable cause to make an arrest is a difficult standard to meet. These petitions are almost always opposed by the prosecution. In cases where there was no trial, the judge will often rely on the police report in making a decision.

Relief provided – These petitions provide the most relief. First, there is a finding of innocence. Second, the arrest records are completely sealed. Nobody is allowed to have access to them without a court order. And then three years after the records are sealed, the arrest record is destroyed and the order sealing the record is destroyed. That means, there will no record the arrest ever taking place. Once this petition is granted, the petitioner will never have to reveal that they were ever arrested.

CARE Act – Penal Code section 851.91

The Consumer Arrest Record Equity Act, also known as the CARE Act, became effective January 1, 2018. The CARE Act allows for arrest records to be sealed under Penal Code section 851.91 in an easier fashion than having arrest records sealed under Penal Code section 851.8 (see above). The CARE Act requires the court to seal arrest records in certain cases and gives the court discretion to seal arrest records in other cases. There is no finding of factual innocence necessary. However, there are limitations to the relief provided by the CARE Act. Arrest records sealed pursuant to Penal Code section 851.91 are not deleted from law enforcement databases, are still available for law enforcement access, can still be used in future criminal prosecutions, must still be disclosed to licensing agencies, applications for law enforcement employment and applications for public office. However, these arrest records, once sealed, cannot be shared with anyone outside the criminal justice system and defendants can otherwise state they have never been arrested. The purpose of the CARE Act is to provide relief to defendants with respect to employment and other non-criminal issues.

Timeline – The earliest that a petition to seal arrest records can be done is after any statute of limitations has expired and there is no chance that charges can be filed, or re-filed. In cases where the crime is a wobbler, the felony statute of limitations applies.  There is no deadline to seal arrest records under 851.91 however, unlike a factual innocence motion which has to be done within two years of the arrest. The petition to seal arrest records under Penal Code 851.91 must be served upon the prosecutor at least 15 days in advance of the hearing.

Difficulty – The good news is that these petitions are lot easier to win than petitions for factual innocence under 851.8. In most cases, the court has to grant these petitions as long as the petitioner can demonstrate they meet all the various requirements of 851.91. There are some cases – petitioners accused of domestic violence, child endangerment or elder abuse who also have a history of those crimes – where the court can exercise discretion. Even in those cases, however, a petitioner can get their arrest records sealed if they can show that this relief is in the “interests of justice”. In either scenario, it’s important to have a knowledgeable attorney preparing the petition and arguing it before the court.

Relief Provided – Penal Code section 851.91 allows a person to state that they have never been arrested and prevents sealed arrest records from being disclosed outside the criminal justice system. However, there are lots of exceptions as to who has access to these records. First, arrest records are marked “sealed’ but they are not deleted from any law enforcement database. All law enforcement and court personnel still have access to these arrest records. The records can be used as part of future criminal prosecutions and must be disclosed in applications for professional licensing and public office, and employment with law enforcement. Also, sealing arrest records under the CARE Act does not allow a prohibited person from having access to firearms. The primary purpose the CARE Act is to help people clear their “consumer” record, not their “criminal” record.


PC 851.8 and PC 851.91 both allow a petitioner to seal their arrest records but there are important differences between the two.  The important thing to remember is the two-year deadline for a PC 851.8.   In misdemeanor cases where charges were never filed, you sometimes have the choice of deciding which petition you want to file, because both can be filed after one year of the arrest date.   However, in felony cases where charges were never filed, then you can only pursue a factual innocence motion within two years of the arrest date, and then if that doesn’t work, you can only pursue a CARE Act petition at least three years from the arrest date.  In cases where charges were dismissed or a defendant was acquitted, the PC 851.91 petition can be filed anytime but the 851.8 petition can only be filed two years from the arrest date.

It’s important to speak with an experienced lawyer regarding these petitions and which one is best for you and which time the petition can be filed.


Related Post