Information on sealing and destroying an arrest record can be found at California penal code section 851.87 through 851.92. For purposes of PC 851 motions the defendant is referred to as the Petitioner. A petitioner’s request to seal and destroy an arrest record may be sought in several situations, including after the successful completion of a diversion program or after the defendant was arrested but not convicted of the crime for which he or she was arrested.

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Diversion Related 851 Motion: Diversion is program whereby an accusatory pleading is placed on hold while the defendant completes terms of diversion. Terms of diversion are similar to probation terms and usually include an order to pay fines, stay out of trouble, complete classes, etc. If the terms of diversion are successfully completed the defendant’s criminal case is dismissed (diverted). Thereafter, the defendant may request that the court seal and destroy the defendant’s arrest and diversion sentence (PC 851.87 Abbrev.). More information on diversion programs may be found at Diversion.

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Note: For arrest records that are sealed after the successful completion of diversion the defendant may state that he or she has not been arrested except in certain circumstance, including, but not limited to, a response to a direct question in an application to become a peace officer.

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Employment: The petitioner may not have his or her criminal record that is sealed and destroyed after a diversion program used against him or her to deny employment (PC 851.87).

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No Conviction after Arrest: Per PC 851.91(a) a person who is arrested but not convicted of a crime may petition the court to have his or her arrest related records sealed (PC 851.91 Abbrev.).

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For purposes of PC 851.91 motions, an arrest does not result in a conviction if any of the following is true:

 

• The statute of limitations has run on every offense upon which the arrest is based;

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• the prosecutor timely filed criminal charges, but the arrest did not lead to a conviction because the criminal charges were dismissed and may not be refiled, or

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• because the defendant was acquitted of the criminal charges.

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Exception: If the defendant intentionally evaded law enforcement efforts to prosecute the arrest then he or she may be denied the sealing and destruction of his or her criminal record. This is true even if the any of the above required condition would otherwise apply to the defendant’s 851 petition.

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PC 851.91 After Appeal: If the defendant was found guilty at a criminal trial but his or her conviction was reversed on appeal and any of the condition above apply then the defendant may petition to have his or her arrest sealed pursuant to PC 851.91.

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Limitations: A petition may have his or her criminal arrest and related records sealed and destroyed as a matter of right if the arrest is not based upon domestic violence with a pattern of domestic violence, child abuse with a pattern of child abuse, or elder abuse with a pattern of elder abuse, unless the court finds that granting the petition serves the best interest of justice.

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Note: A pattern of abuse 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.” (PC 851.91)

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In determining whether the granting the 851.91 petition would be in the interest of justice (despite the fact that the defendant has a pattern of abuse prior to the current arrest) the court will consider the following: the hardship to the petitioner, the good conduct of the petitioner, the circumstances of the petitioner’s prior arrests, and more. In other words, if the petitioner is arrested for a crime, and that arrest never leads to a criminal conviction, then the petitioner may have his or her arrest sealed.

 

In Sum, If the arrest was for a crime that did not involve a pattern of abuse against a child, a person domestically related to the petitioner, or an elder, then the petitioner may have his or her arrest sealed as a matter of right; but, if the arrest did involve a crime for which the petitioner has a pattern of abuse against a child, a domestically related person, or an elder, then the defendant will be required to show that the sealing of his or her arrest record would be in the best interest of justice (PC 851.91).

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Petition Procedure: PC 851 petitions start with the filing of a petition to seal and destroy arrest and related records with the proper court (the court that has jurisdiction over the matter where the arrest occurred). Copies of the petition must be served on the arresting law enforcement agency and on the prosecutor no less than fifteen days before the petition is heard in criminal court. Thereafter, the prosecuting attorney may file a response to the petition. The district attorney’s response may include police reports and other records in his or her efforts to show that the petition should not be granted the requested relief. If the district attorney objects at the initial hearing on the matter, the hearing will be continued at least sixty days so that the prosecuting attorney can prepare a more thorough response.

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Note: In cases where the defendant has a right to the sealing and destruction of arrest and related records as a matter of right the district attorney is less likely to file a response to the petition (PC 851.91).

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If the petition to seal and destroy an arrest and related records is granted, whether the request is made after the successful completion of diversion (PC 851.87) or pursuant to a PC 851.91 motion, the petitioner’s arrest and related records will be sealed and destroyed according to the following: The court will send a report to the Department of Justice, the prosecuting attorney, and the relevant law enforcement agency stating that the relief sought was granted. The report will indicate that the arrest is deemed not to have occurred and the petitioner may answer question relating to the sealed arrest that he or she has not been arrested for the offense; however, as stated, the arrest is not sealed and destroyed for all purposes.

 

For example, a prosecuting attorney may use an arrest record against the defendant in subsequent prosecution even if that arrest record was sealed and destroyed pursuant to PC 851.87 or 851.91. In addition, a sealed and destroyed arrest record may not be denied in response to any direct question contained in a questionnaire or application for public office, for employment as a peace officer, for licensing by any state or local agency, or for contracting with the CA State Lottery Commission.

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Statistical Info Not Sealed: A sealing and destruction of an arrest record does not destroy the booking information related to that arrest. For example, the petitioner’s fingerprints, photographs, or DNA collected during the booking process remains in the records of the Department of Justice. Also, the destruction of an arrest record does not mean that an agency authorized to search the petitioner’s criminal history will not know the defendant was arrested; rather, the facts and circumstances of the arrest are sealed but petitioner’s criminal record may continue to reflect that an arrest was “sealed.”

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Court Records Sealed:  The records sealed means files, and materials created, compiled, or maintained by or for the court in relation to court proceedings, and includes, but is not limited to, indexes, registers of actions, court minutes, court orders, court filings, court exhibits, court progress and status reports, court history summaries, copies of state summary criminal history information and local summary criminal history information, and any other criminal history information contained in any of those materials (PC 851.92 Abbrev.).

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To learn more about how to seal and destroy a criminal arrest record and related documents, or PC 851.87 & 851.91 motions, contact our criminal defense lawyers today for a free consultation. Our criminal defense lawyers have experience with motions to seal and destroy arrest records and we can help you too. Call today!

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