What Is Supposed to Happen If an Order to Seal Is Granted?

Under the CARE Act signed into law by Governor Brown, under Penal Code § 851.87 adults can request to their arrest and court files sealed under Penal Code §§ 851.91 and 851.92 if the adult meets certain criteria.

In other words, this new law does not allow just anyone asking to receive the relief, as many who have called our office seem to believe.

One must have been arrested, but the arrest did not lead to a conviction. More specifically, section 851.91 requires that the statute of limitations has run on every offense upon which the case 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.

Alternatively, one can seek relief under 851.91 if the prosecuting attorney filed an accusatory pleading based on the arrest, but, with respect to all charges, one or more of the following 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 charge; or (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.

If the individual seeking an order to seal the arrest and court file meets these threshold requirements, he still must show to the judge four things, which start with showing he or she cannot still be charged with any of the offenses upon which the arrest was based. This would most commonly require that the statute of limitations for the offenses has passed or expired.

Compton CourthouseIf a Court grants an order to seal an arrest record and court file, the sealing shall be accomplished by the provisions outlined under California Penal Code § 851.92. First, the judge shall provide a copy of the order to the person whose arrest was sealed and to the prosecuting attorney. Within 30 days of issuing the order, the court shall forward a copy of the order to the law enforcement agency that made the arrest, to any other law enforcement agency that participated in the arrest and the law enforcement agency that administers the master local summary criminal history information that contains the arrest record for the sealed arrest.

Also, within 30 days of issuing the order, the court shall furnish a disposition report to the Department of Justice indicating that relief has been ordered and providing the section of the Penal Code under which that relief was granted and the date that relief was granted. Lastly, it should be noted that a sealing order made pursuant to this subdivision shall not be forwarded to the Department of Justice to be included or notated in the department’s manual or electronic fingerprint image or criminal history record system.