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SEALING ARREST RECORDS IN CALIFORNIA

Often the remedy of an expungement is either not applicable to certain situations. These are generally three distinct situations:

-- The individual was arrested, but no charges were ever filed.

-- The individual was arrested, charges were later filed and dismissed, or the individual was acquitted.

-- The individual was arrested, charges were filed, and the case was dismissed because of diversion.

All three situations are common in California, and each has a different remedy for sealing the arrest records. Read below to see how the law applies to your facts.

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The individual was arrested but no charges were filed:

In this situation the relevant statute that controls is Penal Code §851.8.

• First, the arresting agency and the District Attorney need to be petitioned for a determination of factual innocence.
• If the petition is denied, or no response is given within 60 days, then the individual arrested has a right to petition the court.
•  The individual has up to two years from the arrest date to file the petition; although the court can allow a later filing if good cause is shown.
• The burden is on the petitioner, and they must show that “facts exist which would lead no person of ordinary care and prudence to believe or conscientiously entertain any honest and strong suspicion that the person arrested is guilty.” People v Adair (2003) 29 C4th 895

The individual was arrested, charges were later filed and dismissed, or the individual was acquitted:

In this situation the relevant statute that controls is Penal Code §851.8.

•  The individual can petition at the time of the dismissal, if this is not done, the individual can later petition the court.
•  The individual has up to two years from the dismissal date to file the petition; although the court can allow a later filing if good cause is shown.
•  The burden is on the petitioner, and they must show that “facts exist which would lead no person of ordinary care and prudence to believe or conscientiously entertain any honest and strong suspicion that the person arrested is guilty.” People v Adair (2003) 29 C4th 895
•  At the hearing, the prosecution can include evidence that was suppressed in the original case.
•  The procedure is the same for a situation where there was an acquittal.

The individual was arrested, charges were filed, and the case was dismissed because of diversion:


The statute that controls this situation is Penal Code §851.90. The defendant files the motion with the court after successfully completing the diversion. If the motion is granted, the defendant can legally state they were never arrested or granted any type of diversion.

• If the county has a “Back on Track” deferred entry of judgment diversion program, the same relief is available to a defendant that successfully completes the program.

Attorney Michael Rehm - (800) 978-0754

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