How to Seal an Arrest Record in California Under Penal Code 851.91

Say you've just accepted a job in Burbank, pending a background check, and you remember a 2019 arrest in Van Nuys: a shoving match outside a bar that prosecutors never charged. Nobody ever told you it was officially over.

The short answer: if your arrest never led to a conviction, California lets you ask the court to seal the arrest record (Penal Code section 851.91), and in most cases the judge must grant it as a matter of right. That covers an arrest where no charges were filed and the deadline to file has passed, the charges were dismissed for good, or you were acquitted.

Once it's sealed, the arrest is treated as though it never happened, and the local arrest record, the police report, and the court file can be released only to you and to criminal justice agencies. It isn't erased, though: police, prosecutors, and courts can still see and use the records, and a few kinds of applications still require you to disclose the arrest if they ask directly. The first thing to settle is whether yours qualifies.

Does your arrest qualify under Penal Code 851.91?

It qualifies only if the arrest ended without a conviction on every charge connected to it, not just the most serious one. There are two ways to get there. Either the prosecutor never filed charges and the filing deadline has run on every offense, or charges were filed and the case ended in a dismissal that can't be refiled, an acquittal, or a conviction that was vacated or reversed on appeal, with every appeal finished and no possibility of refiling.

The never-charged path trips people up most. Until the statute of limitations (the legal deadline for filing charges) runs out on every offense the arrest was based on, you're someone who "may still be charged," which makes you ineligible, so for the Van Nuys shoving match, everything turns on whether that deadline has passed. A dismissal that allows refiling works the same way. If you aren't sure whether your charge can be refiled or when the deadline runs out, find out first, because it decides whether you can file now or must wait.

Who can't seal an arrest, even without a conviction?

Three other situations shut you out:

• Any of the arrest charges was murder or another offense with no statute of limitations, unless you were acquitted or found factually innocent of that charge.
• You intentionally evaded law enforcement's efforts to prosecute the arrest.
• You intentionally evaded prosecution through identity fraud and were later charged with a crime for that identity fraud.

A missed court date (a bench warrant or failure to appear) that was resolved before the case closed with no conviction doesn't, on its own, count as intentional evasion, but giving police someone else's name to avoid the case can.

Does the judge have to grant it?

In most cases, yes: if you qualify, you're entitled to sealing "as a matter of right," which means the judge must grant it. The exception turns on your history, not just the charge.

If any of the arrest offenses is domestic violence, child abuse, or elder abuse and your record shows a pattern of arrests or convictions for that same type of offense, sealing is available only "in the interests of justice," which means it's the judge's call. A pattern means two or more convictions, or five or more arrests, for separate offenses on separate occasions within three years of at least one of the others. So a single domestic violence arrest that ended in a dismissal is still sealed as a matter of right if there's no such pattern. Where the interests-of-justice standard does apply, the judge may consider any relevant factor, including the hardship the arrest is causing you, your good character, evidence about the arrest itself, and your record of convictions.

What does sealing an arrest actually do?

The judge's order states that the arrest is "deemed not to have occurred," that you may answer any question about it accordingly, and that you're released from the penalties and disabilities that resulted from it, subject to the exceptions in the next section. The court sends the order to the arresting agency and the local records agency and reports the outcome to the Department of Justice (Penal Code section 851.92). The local record is then marked "arrest sealed," and the police report and court docket are stamped so they aren't released outside the criminal justice system.

Nothing is destroyed, though, and the state's copy is handled differently. The Department of Justice marks its record "arrest relief granted" rather than sealing it, so the arrest can still be released in the limited fingerprint background checks that Penal Code section 11105 allows. Destruction takes a finding of factual innocence, covered further down.

Does a sealed arrest still show up anywhere?

Yes, in a few places. Criminal justice agencies can keep accessing and using sealed records in the regular course of their work, including discussing them in open court and in unsealed court filings, as if the arrest had never been sealed. The law also lists four exceptions to the "deemed not to have occurred" rule:

• A later case. In any later prosecution for a different offense, the prosecutor can still allege and prove the sealed arrest.
• Direct questions on certain applications. If the law otherwise requires you to disclose the arrest when asked directly on an application for public office, for employment as a peace officer, for licensure by a state or local agency, or for contracting with the California State Lottery Commission, sealing doesn't change that.
• Firearms. Sealing doesn't change whether you're authorized to own or possess a firearm, or your exposure to prosecution under the firearm statutes, if the arrest would otherwise affect that.
• Public office. It doesn't affect any prohibition on holding public office that results from the arrest.

What if you're applying to be a police officer?

Here's where the unsealed state record matters. For peace officer hiring, Penal Code section 11105 tells the Department of Justice to release every arrest except one that ended in exoneration, such as a factual innocence finding, so an arrest sealed under section 851.91 can still show up. For other criminal justice jobs, the same statute tells the Department not to release an arrest that was granted relief under section 851.91. And if a peace officer application asks you directly, answering "no" because the arrest was sealed is a mistake the statute doesn't protect.

Can an employer ask about an arrest that didn't lead to a conviction?

For most jobs in California, no, even before you seal anything. Labor Code section 432.7 bars employers from asking you to disclose an arrest or detention that didn't result in a conviction, from seeking that information from any source, and from using it as a factor in hiring, promotion, termination, or any other condition of employment.

The rule has limits, though:

• An employer can still ask about an arrest for which you're out on bail or on your own recognizance pending trial.
• The statute doesn't cover people applying for or holding peace officer jobs, or people applying for jobs with the Department of Justice or other criminal justice agencies.
• A health facility may ask applicants for jobs with regular patient access about arrests under any section specified in Penal Code section 290 (the sex-offender registration law), and applicants for jobs with access to drugs and medication about certain drug arrests.
• An employer that state, federal, or local law requires to run criminal background checks, or to restrict hiring based on criminal history, can comply with that law.

Sealing protects you from the other direction, by working on the records rather than the employer: it restricts the court and the police department from releasing the arrest in the first place, which limits what a background-check company can lawfully obtain from those files, and it gives you an order to point to if a report gets it wrong. Licensing boards follow separate rules, and the guide to what a Penal Code 1203.4 dismissal actually does explains which boards may ask about criminal history at all.

Did the state already clear it automatically?

Possibly. Under Penal Code section 851.93, the Department of Justice reviews its records monthly and marks some qualifying arrests "arrest relief granted" without a petition or any notice to you. That's a notation on the state record, though, not a court order, and a felony charge that was filed in court and later dismissed doesn't qualify unless it ended with a completed diversion program, at least until October 1, 2029, when a 2026 amendment starts covering felony arrests whose charges were all dismissed at least a year earlier and not refiled. Automatic relief doesn't limit your right to petition under section 851.91, and the guide to California's automatic record relief explains who qualifies and how to check.

How do you seal an arrest record in California?

You complete the Judicial Council's petition (form CR-409), file it in the right court, serve it on the prosecutor and the arresting agency at least 15 days before the hearing, and, if the judge grants it, receive a signed order on form CR-410. In order:

1. Gather the facts and the proof. You'll need the arrest date, the city and county, the arresting agency, the charges, the police report number if you have it, and the case number if a case was filed, plus proof of how the case ended, such as the minute order showing the dismissal or acquittal.
2. Fill out form CR-409. The Petition to Seal Arrest and Related Records (opens in a new window) also asks for your name and date of birth, and has one checkbox for sealing as a matter of right and another for sealing in the interests of justice. You sign it under penalty of perjury, and the instruction sheet, CR-409-INFO (opens in a new window), walks through it. The petition and order also come in Chinese, Korean, Spanish, and Vietnamese.
3. File in the right court, on time. That's the court where the prosecutor filed the case, or, if no case was ever filed, a court with criminal jurisdiction in the city or county where the arrest happened, at least 15 days before the hearing. Fees and costs vary, so ask the clerk's office what, if anything, applies to your filing.
4. Serve the prosecutor and the arresting agency. Both must be served at least 15 days before the hearing, by hand or by mail, or electronically only if the office you're serving accepts electronic service, and you then file a proof of service (CR-409-INFO suggests form CR-106). Because the prosecutor is entitled to respond, skipping service or cutting it short gives the court a reason to deny or postpone the petition.
5. Be ready to make your showing. The court can decide the petition on declarations, police reports, and other relevant, reliable evidence. It's up to you to show first that you're entitled to sealing, and if you do, the burden of proof shifts to the prosecutor.
6. Keep the order. If the petition is granted, the judge signs the order on form CR-410 (opens in a new window), which goes to you, the prosecutor, and the arresting agency.

When is a different route the better fit?

Two alternatives are worth knowing before you file, since each does something sealing doesn't.

Is factual innocence better than sealing?

It's stronger, but it's harder to get. With a finding of factual innocence (Penal Code section 851.8), the records are sealed for three years from the date of the arrest and then destroyed, you receive a written declaration that you're "thereby exonerated," and the arrest is deemed not to have occurred. In exchange, you have to prove more than how the case ended.

You have to show that "no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made," which the court's self-help guide warns "can be difficult to prove." Where you file depends on how the case ended, and if no charges were filed, you start with the law enforcement agency with jurisdiction over the offense, using Department of Justice form BCIA 8270. The petition generally must be filed within two years of the arrest or the filing of charges, whichever is later, though the court can waive that for good cause if the delay doesn't prejudice the other side. Section 851.91 doesn't set a filing deadline of its own, so if that window has closed or the evidence won't support the finding, sealing is often the practical route.

What if your case ended through diversion?

Two separate statutes seal arrests that ended in diversion, a program that lets a case end without a conviction if you complete it. Section 851.87 covers a completed prefiling diversion program run by the prosecutor's office (offered instead of filing charges), and section 851.90 covers completed superior court drug diversion (Penal Code section 1000.5) or deferred entry of judgment (section 1000 or 1000.8). Unlike section 851.91, both leave sealing up to the judge, since the court "may" seal. Under both, the Department of Justice will still disclose the arrest to a peace officer employer that requests it, you still have to disclose it on a peace officer application that asks directly, and criminal justice agencies keep their access.

Section 851.91 may still be open to you, though. The court's self-help guide lists completed diversion or deferred entry of judgment that ended with the charges dismissed among the outcomes that may qualify, since that's a charge that was dismissed and can't be refiled, so ask which route fits your case. For charges dismissed after other kinds of diversion, the guide points to Penal Code section 1001.9, and the article on California drug diversion programs explains how the programs differ.

What should you do next?

Start with your Department of Justice record and the court's minute order, so you know how the case ended and what the state shows. Then settle the timing questions (has the limitations period run, and can a dismissed charge be refiled?), because they decide whether you can file yet and which route fits. Boyadzhyan Legal Shield handles record clearing in California, and if you're not sure whether your arrest is ready to seal or which route fits it, Knarik Boyadzhyan, a former Deputy Public Defender, can go through your arrest record and court file with you in a consultation.

Official sources

• California Penal Code § 851.91 (petition to seal arrest and related records) (opens in a new window)
• California Penal Code § 851.92 (effect of sealing) (opens in a new window)
• California Penal Code § 851.8 (factual innocence) (opens in a new window)
• California Penal Code § 851.87 (sealing after prefiling diversion) (opens in a new window)
• California Penal Code § 851.90 (sealing after drug diversion or DEJ) (opens in a new window)
• California Penal Code § 851.93 (automatic arrest record relief) (opens in a new window)
• Senate Bill 1342 (Stats. 2026, ch. 702), amending § 851.93 (dismissed felonies, operative Oct. 1, 2029) (opens in a new window)
• California Penal Code § 11105 (release of state criminal history) (opens in a new window)
• California Labor Code § 432.7 (employer use of arrest records) (opens in a new window)
• Judicial Council Form CR-409, Petition to Seal Arrest and Related Records (Rev. Jan. 1, 2024) (opens in a new window)
• Judicial Council Form CR-409-INFO, instructions (Rev. Jan. 1, 2024) (opens in a new window)
• Judicial Council Form CR-410, Order to Seal Arrest and Related Records (new Jan. 1, 2019) (opens in a new window)
• California Courts Self-Help Guide: Record cleaning, arrest with no conviction (opens in a new window)
• California Attorney General: Automatic Record Relief (Penal Code §§ 851.93 and 1203.425) (opens in a new window)
• California Attorney General: Record Relief, Penal Code section 851.92 (opens in a new window)
• California Attorney General: Criminal Records, Request Your Own (opens in a new window)