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Seal Adult Records

Sealing of Adult Record & Penal Code Section 851.91

Posted By Mark Raymond McDonald || 24-April-2018

The California legislature has revised the law allowing individuals to petition the court to seal their criminal arrest records under Penal Code section 851.91. This statute is applicable to both felony and misdemeanor arrests. Due to an unfortunate social stigma and embarrassment that attaches to an arrest, the legislature enacted this remedy for those that would suffer hardship as a result of an incident that did not lead to a conviction.

Previous and still existing law permitted an individual to petition to seal their arrest records if the petitioner satisfied the heavy burden of proving factual innocence, or successfully completed drug diversion under Penal Code Section 1000. Although that law is still in existence, there is another statutory method for sealing records from public view for non-drug offenses and without having to petition for factual innocence. PC 851.91 will allow arrestees that were not convicted to seal their records far from public view and gain the confidence that a misunderstanding is well behind them.

What Does Criminal Record Sealing Do?

The only method for sealing your arrest record is to obtain an order from a judge in the jurisdiction where your case was filed or arrest occurred. An arrest record can only be sealed by filing a specific petition with the court and serving the appropriate parties. A hearing will be held to determine the specifics of your case/arrest and eligibility for this remedy. If the court orders your record sealed, it will prevent any member of the public from obtaining records relating to your arrest or documents within your court case.

Eligibility Requirements to Seal Your Arrest and/or Record – PC 851.91

To be eligible to seal your arrest records and/or court case, you must meet certain prerequisites. A person is eligible for relief if their arrest did not result in a conviction and the prosecution does not have the capabilities of charging you.

Three instances that can meet this requirement are:

  1. The statute of limitations has run and the prosecutor is barred from filing charges.
  2. Charges were filed against you but they were ultimately dismissed and cannot be refiled.
  3. You were found not guilty by a judge or jury.

If you fall into the eligibility category, then you may be able to seal your records as a matter of right. In certain circumstances however, the judge will have the discretion to grant or deny your petition.

A judge could have a say in the approval or denial of your record sealing case if your arrest was for domestic violence, child abuse, or elder abuse, and there is reason to believe you have a pattern of such conduct. A pattern is defined as either having two or more convictions for such crimes, or being arrested five or more times within three years for such criminal accusations.

If you fall within the above eligibility but the court has discretion to grant or deny your petition, then the judge will only be permitted to grant your petition if the interests of justice would be served. The judge will consider any hardship caused by your arrest, declarations or evidence regarding your good moral character and the circumstances of your arrest, and your prior criminal record. You have the initial burden to prove that you qualify for this remedy. Once it is deemed that you are statutorily eligible, the burden will shift to the prosecution to prove whether this remedy should be given to you if this remedy is discretionary.

Persons Ineligible to Seal Their Criminal Record

A person is not eligible to seal their record under PC 851.91 if:

  • Charges may still be filed by the prosecutor.
  • The charge was murder or an offense with no statute of limitations, except if you were found not guilty by a judge or jury or you were deemed factually innocent.
  • You intentionally evaded law enforcement via identify fraud.

Difference Between & Expungement and Record Sealing?

Contrary to popular belief, an expungement does not erase your conviction. It merely adds a notation to your formal record reflecting that the conviction was dismissed (Penal Code Section 1203.4). An expungement permits a person to legally answer that they have no criminal convictions on most employment applications. However, an expungement will not seal the arrest or court records. Accordingly, a member of the public may still obtain court records despite your record ordered expunged.

On the other hand, sealing your record is only available if the arrest did not lead to a conviction. Sealing your record under Penal Code 851.91 pc will order all records relating to your case to be closed and not available for viewing by any member of the public. This prevents any person from the public from obtaining any arrest information or court documentation about your matter.

What Happens After the Court Grants My Petition?

If the court grants your petition to seal under PC 851.91, then there are statutory formalities that must be followed:

  • The court will transmit a disposition report to the California Department of Justice.
  • Issue a written order to you, the prosecution, and arresting agency that your records are ordered sealed.
  • Issue an order that the arrest is deemed not to have occurred and the petitioner will be released from all penalties or disability as a result of your arrest.
  • The police agency must seal all investigative reports relating to your arrest and not be accessible by any member of the public.
  • The court records will be sealed and be made public.
  • Order that it is a civil penalty to disseminate sealed court and arrest records.

Does PC 851.91 Destroy My Arrest Records?

The statute expressly states that it does not destroy arrest or court records. This remedy ensures that your records are not disseminated to the public upon a search. Those interested in sealing and destroying their records must file a petition for factual innocence. If a petition for factual innocence is granted, all records relating to the arrest and/or court documents must be destroyed.

Consult with an Inland Empire Record Repair Attorney

As in all criminal law matters, it is important to seek competent legal service to accomplish your goals. Having the right attorney can make a difference in the outcome of your legal issue. Contact our San Bernardino record repair attorney by dialing 909.443.1599 and requesting a free initial consultation. We serve San Bernardino, Riverside, and the entire Inland Empire.