California Penal Code 851.91: Sealing an Arrest Record

California Penal Code 851.91 lets you petition the court to seal an arrest that never led to a conviction, so it no longer appears on public background checks run by employers, landlords, and private screening companies. If your case fits one of the statute’s categories, sealing is a matter of right and the judge must grant it. Sealing does not destroy the record, though, and several agencies, licensing boards, and federal processes can still see it.

Who Qualifies Under 851.91

You can petition to seal an arrest whenever the arrest did not result in a conviction. The statute spells out four scenarios that qualify:

The statute of limitations on every offense tied to the arrest has run out and the prosecutor never filed charges.
Charges were filed but dismissed, and they cannot legally be refiled.
You went to trial and were acquitted.
You were convicted but the conviction was reversed on appeal, all appeals are finished, and the charges cannot be refiled.

If your situation fits any of these, sealing is a matter of right. The court must grant the petition unless one of the exclusions below applies.¹

When the Judge Has Discretion

One category of arrest shifts the standard from automatic approval to the judge’s judgment. If the arrest involved domestic violence, child abuse, or elder abuse, and your record shows a pattern of similar arrests or convictions, the court can deny the petition even though you were never convicted. The statute defines “pattern” precisely: two or more convictions, or five or more arrests, for separate incidents within three years of at least one of the others.¹

Under this “interests of justice” review, the judge weighs the hardship the arrest record causes you, evidence of good character, the circumstances of the arrest, and your overall conviction history. You can submit statements from yourself or others along with supporting documents. A well-prepared petition that shows concrete harm, like a specific job or housing denial tied to the record, carries more weight than a bare-bones filing.

Who Cannot Seal an Arrest Under 851.91

Four situations bar you from using the statute entirely:

The prosecutor can still file charges based on the arrest.
The offense has no statute of limitations (such as murder), unless you were acquitted or found factually innocent.
You evaded prosecution by fleeing the jurisdiction or using identity fraud.
You were separately charged with using a false identity to avoid prosecution of the underlying arrest.

The evasion rule trips up people unnecessarily. A bench warrant or failure to appear that was resolved before the case closed does not count as evasion. If you missed a court date years ago but the case was later dismissed or you were acquitted, you are usually still eligible.¹

Check for Automatic Sealing Before You File

Before preparing a petition, check whether your record is being handled automatically. Under Penal Code 851.93, the California Department of Justice reviews its statewide databases every month and seals eligible arrest records without any petition, court appearance, or fee. The automatic process applies to arrests on or after January 1, 1973, that meet any of these conditions:²

Misdemeanor with charges dismissed, no waiting period beyond the dismissal.
Misdemeanor with no charges filed, after at least one calendar year since the arrest.
Standard felony with no charges filed, after at least three calendar years, where the offense carries less than eight years in prison.
Serious felony with no charges filed, after at least six calendar years, for offenses punishable by eight or more years in prison.
Successful completion of a qualifying diversion program, including prefiling diversion, drug diversion, deferred entry of judgment, or pretrial diversion.

Automatic sealing typically completes within about a month of eligibility. If your arrest qualifies but hasn’t been sealed yet, you can still file a petition under 851.91 to speed things up rather than waiting for the DOJ’s monthly cycle.

How to File the Petition

Pull Your Criminal History First

Before filling out any form, request a copy of your criminal history from the California Department of Justice. The fee is $25, and the transcript lists every law enforcement contact on your record.³ If you cannot afford it, you may qualify for a fee waiver.⁴ This step matters because the clerk needs the dates, agency names, and case numbers on your petition to match the state’s records exactly. People who rely on memory frequently get details wrong and have their petitions denied without any review of the merits.

Fill Out Form CR-409

The petition uses Judicial Council Form CR-409, Petition to Seal Arrest and Related Records.⁵ The form asks for your full legal name, date of birth, the date of the arrest, the arresting agency, and the city and county where the arrest occurred. If the prosecutor filed charges before the case was dismissed, you also need the court case number.⁶

File, Pay or Waive, and Serve

File the completed petition with the superior court in the county where the arrest took place. If you cannot afford the court filing fee, Form FW-001 lets you request a waiver based on low income, receipt of public benefits, or inability to cover basic needs and court costs at the same time.⁷

After filing, serve copies of the petition on both the arresting agency and the prosecuting attorney’s office (typically the District Attorney or City Attorney) in the city or county where the arrest happened. Service must happen at least 15 days before the hearing date, and you then file proof of service with the court.¹ Miss the 15-day window and your hearing gets postponed or the petition dismissed.

What Happens Next

The prosecutor can file a written objection. If they do, the court schedules a hearing where both sides present arguments. For straightforward petitions that qualify as a matter of right, prosecutors often don’t object and the judge rules on the paperwork alone. From filing to court order, expect roughly 90 days. Once the judge grants the petition, the court notifies law enforcement agencies and the Department of Justice within 30 days.

What Sealing Actually Does for You

Once your arrest is sealed, the law treats it as though it never happened. You can legally answer “no” if an employer, landlord, or anyone else asks whether you’ve been arrested. The statute puts it directly: “the arrest is deemed not to have occurred” and “the petitioner may answer any question relating to the sealed arrest accordingly.”¹

Private background check companies are not supposed to report sealed arrests. The Federal Trade Commission has stated that including sealed or expunged criminal records in a background report indicates the screening company’s procedures do not comply with federal law.⁸

Where You Still Have to Disclose

The right to treat the arrest as nonexistent has four carved-out exceptions where you still must disclose:¹

Running for or applying to hold public office.
Applying for peace officer employment.
Applying for a state or local license from a regulated profession’s board.
Contracting with the California State Lottery Commission.

The sealed arrest can also be used against you in any future criminal prosecution. If you are later charged with a different offense, the prosecutor can reference the sealed arrest and it carries the same weight as if it had never been sealed.

What Sealing Does Not Reach

Firearms Rights

Sealing an arrest does not restore or change your right to own or possess firearms. The statute says this directly: if the arrest would otherwise affect your authorization to have a firearm or make you subject to prosecution under California’s prohibited-persons laws, sealing changes nothing.¹ If you are trying to resolve a firearms prohibition, 851.91 is not the path.

Immigration and Federal Applications

Federal agencies do not honor California’s sealing order the way private employers do. USCIS requires naturalization applicants to disclose sealed and expunged arrests on Form N-400 and to provide the court order that sealed the record. The instructions state that failing to disclose “offenses that have been expunged” can result in denial of your application, even if the underlying arrest would not otherwise disqualify you.⁹

The FBI may also retain records of your arrest in its databases even after state-level sealing. The FBI removes nonfederal arrest data only at the request of the submitting state agency, through a process separate from the state court’s sealing order.¹⁰ If you have pending immigration matters or are applying for federal employment or a security clearance, treat the arrest as fully visible to the federal government regardless of what your California court order says, and consult an attorney before completing the application.

Law Enforcement

The sealing order changes the public status of the record but does not destroy it. Law enforcement and criminal justice agencies can still view the sealed arrest when carrying out their official duties, including investigating later crimes.

If a Sealed Arrest Still Shows on a Background Check

Background screening companies sometimes report sealed arrests because their databases haven’t been updated. Under the Fair Credit Reporting Act, these companies must follow reasonable procedures to ensure maximum possible accuracy, and reporting sealed records falls short of that standard.⁸

Request a copy of your file from the screening company that produced the report, then compare it against your sealed court records. Send a dispute letter by certified mail with your identifying information, a copy of the report, a copy of the sealing order, and a clear statement that the information is inaccurate. The company has 30 days to investigate and must notify you of the result within five days of completing its review. If the company ignores you or refuses to correct the report, the FCRA gives you a private right of action to sue.

Landlords and employers who deny you based on a background report must tell you which screening company produced it. That notice is your starting point for the dispute. Keep a certified copy of your sealing order accessible so you can respond quickly if a sealed arrest surfaces during a time-sensitive application.

1
California Legislative Information. California Penal Code 851.91
2
California Legislative Information. California Penal Code 851.93
3
California Department of Justice – Office of the Attorney General. Criminal Records – Request Your Own
4
California Department of Justice – Office of the Attorney General. Apply for a Fee Waiver
5
California Courts. Petition to Seal Arrest and Related Records (CR-409)
6
Judicial Council of California. CR-409 Petition to Seal Arrest and Related Records
7
California Courts. Request to Waive Court Fees
8
Federal Trade Commission. What Employment Background Screening Companies Need to Know About the Fair Credit Reporting Act
9
USCIS. Form N-400, Instructions for Application for Naturalization
10
Federal Bureau of Investigation. Identity History Summary Checks Frequently Asked Questions