California Penal Code section 851.91 allows certain individuals whose arrests did not result in convictions to petition to have their arrest records sealed. Escovar Law, APC recently obtained an order sealing a 15-year-old arrest in San Bernardino County.
Recently, at San Bernardino County courthouse, Superior Court of California, Escovar Law, APC represented a client who had been arrested 15 years ago for an alleged violation of Health and Safety Code 11351(a), Possession for Sales of a Controlled Substance. The arrest was visible on the California Department of Justice (DOJ) Criminal History record, but the record did not indicate how the case was resolved (e.g. Insufficient Evidence, Penal Code section 849(b) release, etc.).
For immigration purposes, the client needed to prove whether the client was convicted and whether the case was closed (i.e. no warrant pending). After a diligent investigation, Mr. Escovar found no open case. Mr. Escovar filed a Penal Code Section 851.91 Motion to Seal. The District Attorney did not oppose Mr. Escovar’s Motion to Seal. The case was heard in court and the judge granted the motion and signed the order, deeming the arrest not to have occurred and sealing the case from public access.
Great result!
The information on the client’s arrest is no longer public. However, Law Enforcement can still see and use the arrest for its investigative needs.
What is a Penal Code Section 851.91 Motion to Seal?
A motion to seal is a petition to the court to make a part of a criminal record private. According to Penal Code Section 851.91(a)(1):
(a) A person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest and related records sealed, as described in Section 851.92.
(1) For purposes of this section, an arrest did not result in a conviction if any of the following are true:
(A) The statute of limitations has run on every offense upon which the arrest was based and the prosecuting attorney of the city or county that would have had jurisdiction over the offense or offenses upon which the arrest was based has not filed an accusatory pleading based on the arrest.
(B) The prosecuting attorney filed an accusatory pleading based on the arrest, but, with respect to all charges, one or more of the following has occurred:
(i) No conviction occurred, the charge has been dismissed, and the charge may not be refiled.
(ii) No conviction occurred and the arrestee has been acquitted of the charges.
(iii) A conviction occurred, but has been vacated or reversed on appeal, all appellate remedies have been exhausted, and the charge may not be refiled.
Is it possible to “clean my criminal record”?
While it is possible to seal your criminal record under specific circumstances, such as a motion to seal under Penal Code Section 851.91, sealing a criminal record does not “clean” wipe out or delete information from a criminal record.
According to Penal Code Section 851.92 (2) The arrest record shall be updated, as follows:
(A) The local summary criminal history information shall include, directly next to or below the entry or entries regarding the sealed arrest, a note stating “arrest sealed” and providing the date that the court issued the order, and the section pursuant to which the arrest was sealed. This note shall be included in all master copies of the arrest record, digital or otherwise.
(B) The state summary criminal history information shall include, directly next to or below the entry or entries regarding the sealed arrest, a note stating “arrest relief granted,” providing the date that the court issued the order and the section of the Penal Code pursuant to which the relief was granted. This note shall be included in all master copies of the arrest record, digital or otherwise.
Thus, practically the criminal record is not “cleaned” because the arrest is still present on the criminal record. However, directly next to or below the entry or entries regarding the sealed arrest is a note stating, “arrest sealed.” Information regarding a sealed arrest under Penal Code Section 851.91 is not public information and clerk’s in courthouses are instructed not to release the sealed information.
How does a Penal Code Section 851.91 Motion to Seal Affect Me for Job Applications?
Generally, getting your arrest sealed under Penal Code Section 851.91 makes the sealed arrest private. Thus, employers may not see a sealed arrest upon a search of your criminal record.
However, employers often hire private companies to gather information regarding arrest records. If the private data-collecting companies database of criminal records was gathered before the arrest was sealed, employers may still see an arrest on your record (that they obtained prior to the sealing).
Thus, even though you have sealed your record, there may still exist some private or on line evidence of your prior arrest.
Is It Worth It To Seal My Criminal Record?
Generally, it is better to get your arrest sealed under Penal Code Section 851.91, than to leave ambiguity regarding an arrest on your record.
A Penal Code Section 851.91 Motion to Seal may not be reflected in all private data-collecting companies’ databases, if the private data-collecting companies database of criminal records was gathered before the arrest was sealed.
Even so, it is better to get your record sealed because A Penal Code Section 851.91 Motion to Seal followed by an order signed by a judge is a court’s statutory finding that the arrest is deemed did not to have occurred and that the arrest did not result in a conviction.
Without a Penal Code Section 851.91 Motion and a court order, there is remaining ambiguity about the criminal record that could cause additional issues in the future.
There are no guarantees and results may vary depending on the specific facts of each case.
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