How to Seal an Arrest Record in California: Penal Code 851.91 Explained
The short answer: if you were arrested in California and the case was never filed, was dismissed, or ended in an acquittal, Penal Code section 851.91 lets you petition the superior court to seal the arrest and the related records, and for most people the sealing is granted as a matter of right. You file form CR-409, serve the prosecutor and the arresting agency, and the court signs form CR-410 ordering the arrest sealed. Once sealed, the arrest is deemed not to have occurred for most purposes, the records are removed from the reports employers and landlords see, and you can answer that you were not arrested on most applications. This guide explains who qualifies, how the petition works at the Riverside Hall of Justice, the San Bernardino Justice Center, and the Los Angeles County courthouses, what sealing does and does not do, and how it differs from expungement. Gramling Law Group handles sealing petitions as part of its criminal defense practice.
Why an arrest record matters even without a conviction. An arrest generates a booking record, a Department of Justice criminal history entry, a local police report, and often a court docket, and each can surface on a background check. People in Riverside, Ontario, Rancho Cucamonga, Los Angeles, and Anaheim lose job offers, apartment applications, and licensing approvals over arrests that never became convictions. California has narrowed what employers may ask under Labor Code section 432.7 and the fair chance rules in Government Code section 12952, but the record still exists until it is sealed.
Who Qualifies to Seal an Arrest Under Penal Code 851.91
The basic rule. Penal Code section 851.91 applies to a person who was arrested and whose arrest did not result in a conviction. That covers four common situations: the prosecutor never filed charges and the statute of limitations has run; charges were filed and later dismissed; the case went to trial and ended in an acquittal; or a conviction was vacated or reversed on appeal and the case was not retried. In each situation the arrest must be one that can no longer be prosecuted, so a dismissed case that could still be refiled is not yet eligible.
Waiting for the limitations period. When no charges were filed, the sealing petition generally cannot be granted until the time to file has expired, which is one year for most misdemeanors under Penal Code section 802 and three years for most felonies under Penal Code section 801, with longer periods for certain offenses. Prosecutors sometimes issue a written declination that confirms no charges will be filed, and that letter helps the petition. Our guide to what prosecutors look at before filing explains the pre-filing stage.
Who is excluded. The statute does not allow sealing where the person may still be charged, where the arrest was for an offense with no statute of limitations such as murder unless the person was acquitted or found factually innocent, where the person intentionally evaded law enforcement efforts to prosecute, or where the person evaded prosecution by committing identity fraud. A pending case must be resolved first, which is why the sealing petition usually follows a dismissal motion; see our guide to how to get criminal charges dismissed.
Sealing as a matter of right versus interests of justice. For most eligible arrests, the court must grant the petition as a matter of right. The exception is where the person's record shows a pattern of domestic violence, child abuse, or elder abuse arrests or convictions, which the statute defines by a specified number of separate convictions or arrests within a three-year period. In those cases sealing is granted only if the court finds it serves the interests of justice, and the petitioner must present evidence of hardship, rehabilitation, and the circumstances of the arrest. That distinction matters for anyone with more than one domestic violence arrest, and it is where a lawyer earns the fee.
How to File the Petition: Form CR-409 Step by Step
Gather the arrest information. You will need the arresting agency, the date of arrest, the booking number if you have it, the charges listed at arrest, and the court case number and disposition if a case was filed. Request a copy of your Department of Justice criminal history record if you are unsure what the record shows, because the petition must describe the arrest accurately and the court will compare it to the record.
Complete form CR-409. The Judicial Council petition to seal arrest and related records is form CR-409. It asks for the arrest details, the disposition, and the basis for eligibility, and it includes a declaration under penalty of perjury. If you are asking for sealing in the interests of justice because of a domestic violence or child abuse pattern, attach a declaration on form MC-031 explaining the circumstances and supporting documents such as proof of counseling, employment, and community ties.
File in the right court. The petition is filed in the superior court where the accusatory pleading was filed or, if no charges were ever filed, in the superior court of the county where the arrest occurred. An Ontario or Fontana arrest with no filing goes to the San Bernardino Justice Center or the court's designated location; a Riverside or Moreno Valley arrest goes to the Riverside Hall of Justice; a Los Angeles arrest goes to the Clara Shortridge Foltz Criminal Justice Center or the regional courthouse that handled the case. Check the court's website for the current filing location and whether a filing fee applies, because practices differ by county.
Serve the prosecutor and the law enforcement agency. A copy of the petition must be served on the prosecuting attorney and on the law enforcement agency that made the arrest, and proof of service is filed with the court. The prosecutor may file an opposition, which is unusual in matter-of-right cases and more common in interests-of-justice cases. Serve early; the court will not hear the petition until the agencies have had the statutory notice period.
The hearing and the order. Many matter-of-right petitions are granted on the papers without a hearing. When a hearing is set, it is short: the judge confirms eligibility, hears any opposition, and signs the order on form CR-410. The court then sends the order to the Department of Justice and the arresting agency, and the sealing takes effect. Keep a certified copy of the order, because you may need to show it to a background check company that has not updated its data.
What Sealing Does and Does Not Do
The arrest is deemed not to have occurred. Under Penal Code section 851.92, once the order issues the arrest is deemed not to have occurred, the police report and related records are sealed, and the arrest may not be disclosed by the agency to anyone other than the person and criminal justice agencies. The Department of Justice updates the state summary criminal history to reflect the sealing. For most job, housing, and loan applications, you may respond that you were not arrested.
Exceptions you must know. The statute preserves the arrest for criminal justice purposes, so law enforcement and prosecutors can still see it and can plead and prove it in a later case where the arrest is relevant. The person must still disclose the sealed arrest when applying to be a peace officer, when running for public office, when applying for a license from a state or local agency, or when contracting with the state lottery. A sealed arrest also does not affect the DMV's records of a driver's license action or any pending civil matter arising from the same events.
Sealing versus expungement. Sealing under Penal Code section 851.91 is for arrests without a conviction. If you were convicted, the remedy is a dismissal under Penal Code section 1203.4 on form CR-180, which reopens the case, withdraws the plea, and dismisses it but does not erase the record. Our guide to how to expunge a criminal record explains that process, and our guide to reducing a felony to a misdemeanor covers the related motion under Penal Code section 17, subdivision (b).
Sealing versus factual innocence. Penal Code section 851.8 offers a stronger remedy, a finding of factual innocence with destruction of the arrest records, but it requires proof that no reasonable cause existed to believe you committed the offense and generally must be sought within two years of the arrest. Most people cannot meet that standard, which is why the Legislature created the 851.91 petition in 2018. Where the facts support it, counsel may pursue both.
Automatic Relief, Diversion Sealing, and Other Routes
Automatic arrest relief. Penal Code section 851.93 directs the Department of Justice to grant arrest record relief automatically for certain arrests that did not result in a conviction, on a schedule set by the statute. Automatic relief is limited to the state summary record, applies only to arrests within the statute's date ranges, and does not generate a court order you can show a background check company. A petition under Penal Code section 851.91 remains the reliable route for anyone who needs certainty or whose arrest falls outside the automatic program.
Sealing after diversion. If your case was resolved through diversion rather than a conviction, the diversion statute usually provides its own sealing. Misdemeanor diversion under Penal Code section 1001.95, drug diversion under Penal Code section 1000, and mental health diversion under Penal Code section 1001.36 each provide that the arrest is deemed not to have occurred after successful completion, and Penal Code section 851.87 provides a sealing procedure after certain diversion programs. Our guides to misdemeanor diversion and mental health diversion explain how those programs end.
Detention that was not an arrest. If you were detained and released without being booked, Penal Code section 849.5 provides that the release is recorded as a detention rather than an arrest, and the agency issues a certificate describing it that way. Ask the arresting agency for that certificate before filing anything, because a detention record may not need sealing at all.
Practical Tips From Southern California Courtrooms
Start with the DOJ record. Petitions are denied or delayed when the arrest date, agency, or charges on the CR-409 do not match the state record. Pull the record first, list every arrest you want sealed, and file a separate petition for each arrest if they arose from separate events.
Time the petition to the limitations period. For unfiled cases, count the limitations period from the date of the alleged offense, not the arrest, and add a margin. Filing early invites an opposition stating that charges may still be filed, and a denial on that ground requires a second filing later.
Prepare the interests-of-justice showing if it applies. If your record includes more than one domestic violence arrest, treat the petition like a sentencing memorandum: declarations, program certificates, employment records, and a candid account of the events. Judges at the Riverside Hall of Justice and the San Bernardino Justice Center grant these petitions when the showing is real and deny them when it is thin.
Follow up with background check companies. Commercial databases lag behind court orders. After the CR-410 issues, send the certified order to the major consumer reporting agencies and any company that reported the arrest, and dispute the entry under the Fair Credit Reporting Act if it reappears. Our guide to what happens after an arrest in the Inland Empire explains the records an arrest creates.
Do not wait to address a pending case. Sealing is the last step. If your case is still open, the priority is a dismissal, an acquittal, or a diversion outcome that qualifies. Read our guides to what makes a case weak, the 1538.5 motion, and the pretrial conference.
Frequently Asked Questions
Can I seal an arrest if charges were never filed?
Yes, once the time to file has passed. Penal Code section 851.91 allows sealing when no accusatory pleading was filed and the statute of limitations has run, which is generally one year for misdemeanors under Penal Code section 802 and three years for most felonies under Penal Code section 801. A written declination from the prosecutor strengthens the petition.
What form do I use to seal an arrest record in California?
Form CR-409, with the order on form CR-410. The petition is filed in the court where the case was filed or, if no case was filed, in the county of arrest, and it must be served on the prosecuting attorney and the arresting agency. A supporting declaration on form MC-031 is used when the petition relies on the interests of justice.
Does sealing an arrest erase it completely?
Not completely. Under Penal Code section 851.92 the arrest is deemed not to have occurred and is removed from what the public and most employers can see, but criminal justice agencies retain access and you must still disclose it when applying to be a peace officer, for public office, for a state or local license, or to contract with the state lottery.
Is sealing the same as expungement?
No. Sealing under Penal Code section 851.91 is for arrests that did not end in a conviction. A conviction is addressed by a dismissal under Penal Code section 1203.4 on form CR-180, which changes the disposition but does not seal the record.
Can the court deny my petition to seal?
Rarely, if you are eligible. Most eligible petitions are granted as a matter of right. The court has discretion only where the record shows a statutory pattern of domestic violence, child abuse, or elder abuse arrests or convictions, and it must deny a petition where the person can still be charged, evaded prosecution, or was arrested for an offense with no limitations period without an acquittal or innocence finding.
Do I need a lawyer to seal an arrest record?
Not always, but it helps in three situations. A lawyer is valuable when the limitations period or refiling question is unclear, when the record shows more than one domestic violence arrest and the interests-of-justice showing is required, and when a pending case must be resolved first. Gramling Law Group offers flat-fee options for sealing and expungement petitions.
Talk to a Criminal Defense Lawyer About Sealing Your Arrest
Gramling Law Group files arrest sealing and expungement petitions at the Riverside Hall of Justice, the Southwest Justice Center, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, the Clara Shortridge Foltz Criminal Justice Center, the Orange County justice centers, and courthouses throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so the cost of clearing your record is known up front. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our criminal defense practice serving the Inland Empire, Los Angeles County, and Southern California.
Gramling Law Group files arrest sealing petitions from our Riverside criminal defense, San Bernardino criminal defense, and Los Angeles criminal defense pages, and our Inland Empire criminal defense guide covers the rest of the region.
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