An arrest record does not automatically disappear — even if no charges were ever filed. In California, arrest record sealing is governed primarily by:
Arrest Record Sealing in California
Sealing arrests not resulting in conviction
Factual innocence
Sealing certain convictions (related but distinct relief)
Arrest record sealing is different from expungement. It addresses arrests that did not lead to a conviction — or convictions that were later vacated — and restricts public access to those records.
This relief can significantly affect employment, licensing, and background checks.
When Can an Arrest Be Sealed?
Under Penal Code §851.87, a person is eligible to make an arrest sealing motion when:
- Charges were never filed,
- Charges were filed but later dismissed,
- The person was acquitted at a trial by jury,
- A conviction was vacated on appeal or post-conviction relief,
- The prosecution declined to refile within the statutory period.
What Happens When an Arrest Is Sealed?
When a court grants relief under §851.87:
- The arrest is sealed.
- The record is no longer publicly accessible.
- The person may lawfully state they were not arrested in most contexts.
However:
- Law enforcement agencies retain internal access.
- The record still exists within government systems.
- Certain government licensing agencies may still access sealed records under limited circumstances.
Sealing restricts visibility. It does not erase the historical event from internal databases. (Always assume the government can still see their records)
How Arrest Sealing Differs From Expungement
Expungement (Penal Code §1203.4):
- Applies to convictions.
- Changes the conviction to a dismissal.
- Does not seal the arrest.
Arrest Sealing (§851.87):
- Applies when there was no conviction.
- Removes public access to the arrest.
- Provides broader privacy protection.
Expungement modifies status. Sealing restricts access.
Factual Innocence – Penal Code §851.8
This is a higher level of relief.
Under §851.8, a person may petition the court to declare them factually innocent of the charges.
If granted:
- The arrest is sealed and destroyed.
- The finding affirmatively states the person was factually innocent.
This standard is much higher than simple sealing and requires proof that no reasonable cause existed to believe the person committed the offense. It is rarely granted but powerful when successful.
Timing for Arrest Sealing
A petition under §851.87 may be filed:
- Immediately after dismissal or acquittal,
- After the statute of limitations expires if no charges were filed.
If charges were never filed, sealing generally becomes available once the prosecution can no longer bring the case.
When Arrest Sealing Is Not Available
Sealing may not apply when:
- The person evaded prosecution
- The offense has no statute of limitations (in limited categories)
- There is an ongoing criminal case
Each case requires individualized review.
Practical Benefits of Arrest Sealing
Arrest sealing can:
- Improve employment prospects
- Protect professional licensing
- Reduce housing denials
- Protect reputation
- Prevent unnecessary disclosure of dismissed cases
- Reduce stigma in background checks
For many people, arrest sealing provides stronger privacy protection than expungement.
Government Record vs. Public Record
A sealed arrest:
- Is removed from public-facing DOJ reports
- Will not appear on most employment background checks
However:
- The underlying government record still exists internally
- Law enforcement agencies retain access
- Sealed arrests may still be visible to certain government entities under statutory exceptions
Sealing limits public access — it does not rewrite history.
The Sealing Process
The process generally involves:
- Filing a petition in the court where the arrest occurred
- Serving the prosecuting agency
- Court review (hearing may or may not be required)
- Issuance of a sealing order
- Transmission of the order to the Department of Justice
Processing times vary by county.
Common Misconceptions
“If charges were dropped, the arrest disappears automatically.”
- False.
“Sealing destroys the police file.”
- It restricts access; destruction is rare outside factual innocence findings.
“Expungement and sealing are the same.”
- They are not.
“Sealing fixes immigration consequences.”
- It generally does not affect federal immigration determinations.
Why Timing and Accuracy Matter
Improper filings can result in:
- Incomplete record updates
- Background check discrepancies
- Licensing delays
- Missed statutory deadlines
Strategic timing is especially important if:
- A job offer is pending
- A state license application is underway
- A background check has already flagged an arrest
Bottom Line
Arrest record sealing under Penal Code §851.87 is one of the most powerful privacy tools in California criminal law when no conviction resulted.
It:
- Restricts public access
- Improves employment prospects
- Allows lawful non-disclosure in most contexts
- Does not eliminate internal government records
- Is different from expungement
Understanding eligibility, timing, and procedural requirements is critical to ensuring the relief works as intended.
Next Step
If you or a family member is seeking arrest record sealing under Penal Code §§851.87 or 851.8 in California — and you want a review of eligibility, procedural requirements, and strategic timing — you can send your information to me here:
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