Record Sealing (PC 851.8/851.87) FAQ

Expungement and record sealing are two distinct forms of post-conviction relief in California that serve different purposes and provide different types of relief. Expungement under Penal Code Section 1203.4 applies to criminal convictions where you were granted probation, successfully completed it, and the court dismisses your case by withdrawing your guilty plea and entering a not guilty plea. The conviction remains visible on background checks but must be shown as dismissed, and you gain the right to deny the conviction to most private employers. However, law enforcement and certain licensing agencies can still see the conviction.

Record sealing, on the other hand, completely seals and destroys arrest records and related court documents under various statutes including PC 851.8 (arrests not resulting in conviction), PC 851.87 (arrests and convictions after completing sentence), and PC 851.91 (factual innocence). When records are sealed under these provisions, they are physically sealed or destroyed, and you can legally deny the arrest or conviction ever occurred in virtually all circumstances. Record sealing provides more comprehensive relief than expungement because the records become completely inaccessible rather than just dismissed. Many individuals pursue both remedies when eligible—expungement for probation cases and record sealing for arrests or other qualifying situations.

California Penal Code Section 851.8 allows individuals to petition the court to seal and destroy arrest records when the arrest did not result in a conviction. This statute is designed to protect individuals who were arrested but ultimately not convicted from the ongoing negative consequences of having an arrest record. To qualify for relief under PC 851.8, you must meet one of several criteria. First, you were arrested but no charges were ever filed by the prosecutor, and the statute of limitations has expired for filing charges. Second, charges were filed but later dismissed and cannot be refiled. Third, you were acquitted (found not guilty) at trial. Fourth, the conviction was reversed on appeal and the case was dismissed or the prosecution declined to refile charges. Fifth, you successfully completed a pretrial diversion program and the charges were dismissed pursuant to the diversion agreement.

When a petition under PC 851.8 is granted, the court orders that the arrest be deemed not to have occurred, and the petitioner may answer questions about the arrest as though it never happened. All records of the arrest, including police reports, booking photos, court filings, and fingerprints, are sealed and subsequently destroyed. Law enforcement agencies, the Department of Justice, and the court must seal their records within specified timeframes. The relief provided under PC 851.8 is comprehensive, as sealed records cannot be accessed by employers, landlords, licensing agencies, or even most government entities, with very limited exceptions for certain law enforcement purposes.

California Penal Code Section 851.87, enacted as part of criminal justice reform in recent years, provides for automatic and petition-based sealing of arrest records and certain convictions after you complete your sentence. This statute differs significantly from PC 851.8 in both scope and application. PC 851.87 applies to arrests and convictions where you completed your entire sentence, including probation, parole, and mandatory supervision, while PC 851.8 only applies to arrests that did not result in conviction. Under PC 851.87, if you were arrested but not convicted, you may petition to seal the arrest record one year after the date of arrest, provided no charges are pending and the statute of limitations has expired.

If you were convicted of a misdemeanor or felony, you may petition to seal the conviction record after completing your sentence, including all imprisonment, probation, and parole, with certain waiting periods. For misdemeanors, there is typically a one-year waiting period after completion; for felonies, it may be longer. Importantly, PC 851.87 mandates automatic sealing in certain circumstances without requiring a petition. When records are sealed under PC 851.87, they are treated as though the arrest and conviction never occurred. However, PC 851.87 has more extensive exceptions and disqualifying offenses, including serious and violent felonies, sex offenses requiring registration, and offenses committed against minors.

A petition for finding of factual innocence under California Penal Code Section 851.91 (formerly 851.8(c)) is the most powerful form of record relief available in California, but also the most difficult to obtain. Factual innocence means you can demonstrate to the court that no reasonable cause existed to believe you committed the offense for which you were arrested. This is a higher standard than being found not guilty at trial; it requires showing that you were actually innocent and should never have been arrested in the first place. To prevail on a factual innocence petition, you must prove by a preponderance of the evidence that you were factually innocent of the charges.

This typically requires presenting affirmative evidence of innocence, such as alibi evidence, proof that someone else committed the crime, evidence that no crime actually occurred, or other compelling proof that you did not and could not have committed the alleged offense. The petition must be filed within two years of the arrest, though some exceptions apply. When a finding of factual innocence is granted, the relief is comprehensive and immediate. The court orders that the arrest be deemed not to have occurred, and all records are sealed for three years and then destroyed. You can legally state that you were never arrested for the offense, and sealed records cannot be used for any purpose, with extremely narrow law enforcement exceptions.

Yes, California law provides relief for situations where you were detained by law enforcement but not formally arrested or booked. While detention alone may not create an official arrest record in the same way a formal booking does, law enforcement agencies often maintain incident reports, field interview cards, and other documentation of the detention that can appear in background checks or law enforcement databases. If you were detained but released without being arrested, and no charges were filed, you may be able to petition for destruction or sealing of those records under several legal theories.

First, if the detention was unlawful or unsupported by reasonable suspicion, you can petition under PC 851.8 arguing there was no lawful basis for the detention. Second, you can request that the law enforcement agency voluntarily destroy or seal records of the detention, particularly if no arrest occurred and no charges were filed. Third, if the detention is documented in a police report that appears in background checks, you may be able to petition the court for relief under PC 851.8 or general equity powers. To pursue relief for detention records, you should first request your records from the law enforcement agency through a public records request to determine what documentation exists, then consult with an attorney about the best legal avenue for sealing or destruction.

California law excludes certain serious and violent offenses from record sealing relief under PC 851.87 and related statutes, even if you completed your sentence and have been rehabilitated. First, convictions requiring sex offender registration under Penal Code Section 290 generally cannot be sealed, with very limited exceptions. This includes offenses such as rape, child molestation, sexual assault, and other sex crimes. Second, serious felonies as defined in Penal Code Section 1192.7, such as murder, voluntary manslaughter, mayhem, rape, robbery, and arson of an inhabited structure, are typically ineligible for sealing. Third, violent felonies as defined in Penal Code Section 667.5(c), including murder, mayhem, kidnapping, robbery, and carjacking, cannot be sealed.

Fourth, offenses for which you were sentenced to state prison (rather than county jail under realignment) are often excluded from PC 851.87 relief, though there are exceptions. Fifth, convictions involving abuse of children or elder abuse may be ineligible for sealing. Sixth, if you have subsequent convictions or are currently required to register as a sex offender or arson offender, sealing may be denied even for otherwise eligible offenses. It's important to note that even if you're ineligible for record sealing under PC 851.87, you may still qualify for expungement under PC 1203.4 if you were granted probation, or for a Certificate of Rehabilitation if you served state prison time.

Petitioning for record sealing under PC 851.8 or 851.87 involves several detailed steps that vary depending on which statute applies and the specific circumstances of your case. First, determine which statute applies to your situation. Use PC 851.8 if you were arrested but not convicted, or PC 851.87 if you completed your sentence for a conviction. Second, obtain copies of all relevant records, including the police report, court docket, minute orders showing case disposition, and proof of sentence completion if applicable. You may need to submit public records requests to law enforcement agencies and obtain certified copies from the court.

Third, prepare the petition using Judicial Council forms or local court forms specific to record sealing. For PC 851.8, use Form CR-409 (Petition to Seal and Destroy Adult Arrest Records). Fourth, draft a detailed declaration explaining the circumstances of your arrest, why the charges were not filed or were dismissed (for PC 851.8), or how you've been rehabilitated since completing your sentence (for PC 851.87). Include evidence such as employment records, education, community involvement, and character references. Fifth, file the petition with the superior court in the county where the arrest occurred, pay the filing fee (or request a fee waiver), and serve copies on the district attorney and the arresting agency. Finally, attend the hearing if one is scheduled.

The timeline for record sealing in California varies considerably depending on which statute you're petitioning under, the county where you're filing, and whether your petition is contested. For PC 851.8 petitions (arrests not resulting in conviction), the process typically takes three to six months from filing to final order. After you file the petition, the court serves notice on the district attorney and the arresting law enforcement agency, who each have 60 days to respond or file an opposition. If neither opposes the petition, the court may grant it without a hearing, potentially within 90 to 120 days of filing.

If there is opposition, a hearing will be scheduled, usually 30 to 60 days after the opposition is filed, and the entire process may extend to four to six months or longer. For PC 851.87 petitions (relief after completing sentence), timelines are similar but may be longer due to the complexity of reviewing rehabilitation evidence. For PC 851.91 petitions (factual innocence), the process is often more contentious because law enforcement and prosecutors typically oppose these petitions vigorously. These petitions may take six months to a year or more, especially if an evidentiary hearing is required. Once a sealing order is granted, law enforcement agencies have specific timeframes to seal their records—typically 30 to 90 days.

After your records are sealed under PC 851.8, 851.87, or 851.91, several important legal effects occur that provide substantial relief from the consequences of the arrest or conviction. First, the court issues an order directing all custodians of records, including law enforcement agencies, the Department of Justice, the FBI, and the court itself, to seal all records relating to the arrest and any associated court proceedings. This includes police reports, booking records, fingerprints, photographs, court filings, and any other documentation. Second, the sealed records are physically segregated from public files and marked to prevent disclosure. After being sealed for a specified period (typically three years), the records are destroyed entirely.

Third, you are legally permitted to state that the arrest or conviction never occurred in virtually all circumstances. When applying for employment, housing, education, or other opportunities, you can answer "no" to questions about whether you've been arrested or convicted, with very limited exceptions. Fourth, the sealed records cannot be accessed or disclosed by employers, landlords, licensing agencies, educational institutions, or most government entities. Fifth, law enforcement agencies may still access sealed records for very limited purposes, such as during criminal investigations or if you're arrested for a subsequent offense, but these records cannot be used against you in most civil contexts. Sixth, the sealing applies retroactively, meaning any records that were previously disseminated must be recalled or sealed as well.

While record sealing provides comprehensive relief in California, there are limited circumstances under which sealed records can be accessed or potentially unsealed. First, law enforcement agencies may access sealed records for legitimate investigative purposes if you become a suspect in a new criminal investigation. Officers investigating crimes are permitted to review sealed records to determine if there are patterns of conduct or relevant information, though this is narrowly restricted. Second, if you are arrested for a new offense, prosecutors and courts can access sealed records for purposes of charging decisions, bail determinations, and sentencing if you're convicted of the new offense.

Third, certain government agencies responsible for issuing licenses for positions involving public safety, such as law enforcement, childcare, or healthcare, may have limited statutory authority to access sealed records. Fourth, if you apply for a position with a law enforcement agency or certain sensitive government positions requiring high-level security clearance, you may be required to disclose sealed arrests and the agency may be permitted to access them. Fifth, if you make a claim against law enforcement or the government based on alleged wrongful arrest or prosecution, sealed records may become relevant and potentially accessible. Finally, if records were improperly sealed or you obtained the sealing order through fraud, the court may vacate the sealing order and restore public access.