What You Need to Know About Sealing and Destroying Your Arrest Records in CA
California law allows judges to seal and destroy arrest records in a few cases. Here’s how to seal and destroy your arrest records.
Individuals have options for judges to seal and destroy their arrest records. First, one must determine what law applies to their situation and if they can seal and destroy the arrest records.
Can California Expunge Arrest Records?
Although true expungement does not exist in California, defendants can have a judge seal and destroy their arrest or conviction records for different reasons.
In California, the term “expunged” is often used interchangeably with “sealed and destroyed,” as one cannot truly expunge arrest records in the state. However, one can functionally expunge them by having them sealed and, in some cases, destroyed.
What are the Different Ways to Seal and Destroy Arrest Records?
In California, different laws apply to different situations for sealing and destroying arrest records. The main process for sealing and destroying arrest records relates to arrests with no conviction, including those factually innocent and those who completed a diversion program.
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Arrests Without a Conviction
If an arrest did not result in a conviction, one might file a petition to have their arrest records sealed under Penal Code section 851.91.
Approval to seal arrest records without a conviction applies when:
- No one filed charges after the arrest.
- Someone filed charges but later dismissed them.
- The defendant completed a diversion or Deferred Entry of Judgment (DEJ).
- The judge did not find the person guilty at trial.
In most cases described by one of the above situations, you can file a Petition to Seal Arrest and Related Records.
Diversion Programs and Record Sealing
In California, defendants can participate in diversion programs to qualify for record sealing. Penal Code 851.87 allows defendants to petition to seal their arrest records after completing a pre-filing diversion program run by the prosecutor.
If the completion of a diversion program leads to the dismissal of charges, Penal Code 1001.9 allows you to petition to seal your arrest records. If the diversion program was a drug diversion program, and its completion leads to dismissed charges, Penal Code 851.90 allows you to petition to seal your arrest records.
Factual Innocence in California
Factual innocence is a difficult bar to meet but can justify a judge sealing and destroying your arrest records. Factual innocence requires proof the officer had no reason to arrest you.
Californians must do this differently depending on the situation.
- If no one filed charges/dismissed them before trial, use the California Department of Justice’s Petition to Seal and Destroy Adult Arrest Records (BCIA-8270) Some courts may have local forms for you to use instead.
- If you were not found guilty at trial or a judge found you factually innocent and set aside your conviction, your trial attorney can file the request to seal and destroy the records.
When using the BCIA-8270, submit a copy to the law enforcement agency responsible for the arrest. If they deny your petition, you must petition the court. If the law enforcement agency grants your request, thus declaring your factual innocence, your records will be sealed for three years, then destroyed.
Related: How to Get a CCW Permit in California
If the law enforcement agency ignores your petition, you should understand the statute of limitations for any charges you may face. The statute of limitations is how long after an arrest one must file charges.
If the statute of limitations timeline has passed, the law enforcement agency has 60 days to respond to your petition after submitting it. If the statute of limitations has not passed, you have until 60 days after that statute of limitations expires to respond. Keep this in mind when deciding how to proceed.
How to File a Petition to Seal Arrest and Related Records
If you are unsuccessful in a petition to be declared factually innocent, you must file a Petition to Seal Arrest and Related Records in the court where the arrest or, if there was a trial, the prosecution occurred.
To file, you can complete and submit a CR-409 form. The form is available in English, Chinese, Spanish, Korean, and Vietnamese. Complete all information correctly to ensure the petition has the best chance of approval.
The form requires:
- Your name and date of birth
- Your street address and mailing address (use your lawyer’s address if you have one)
- Phone number
- Case number and case name (if someone filed charges)
- The arrest date
- The city and county where the arrest took place
- The law enforcement agency that made the arrest (including the county or city)
- The arrest report or police report number, if available)
- A list of charges filed against you
You also must choose to seal the arrest as a matter of right or in the interests of justice. You should choose to seal the arrest as a matter of right if the arrest did not result in a conviction and you satisfy the requirements outlined in Penal Code 851.91, described in the sections above.
If you do not meet these requirements, you should choose to have a judge seal the records in the interests of justice. You must submit a declaration explaining why granting this petition will serve the interests of justice. You should attach this declaration and any supporting documents to your petition. If the judge grants your petition, they will sign an Order to Seal Arrest and Related Records CR-410 form.
Remember you must petition within two years of the arrest or filing charges in court, except in cases with a good reason for not filing a petition earlier.
Do You Need a Lawyer?
Anyone can file a petition for California to seal and destroy their arrest records. However, you might consider consulting a lawyer when navigating the process.
The Clean Slate Act
In 2019, California Governor Gavin Newsom signed into law AB-1076, the criminal records: automatic relief bill, or “Clean Slate Act.” Under this act, the state can offer relief by sealing or setting aside records of those who qualify without those individuals filing their petitions. The process supplants the petition system. The bill only applies to arrests and convictions after January 1, 2021, so it may not apply to all cases that otherwise meet the requirements for a petition.
Noncitizens and Record Cleaning
A noncitizen’s criminal record might affect your immigration status and lead to deportation. You should consult an immigration lawyer to decide the best course of action for cleaning your record.
Before entering a guilty plea, judges and attorneys must inform you that the plea may affect your immigration status. If you did not receive the information or do not understand the information, you can take back a guilty or no contest plea.
You may use form CR-187 to ask to take back your plea if you would not have pled guilty or no contest had you known or understood the implications or ramifications of the plea. If granted, your plea rescinds, and your trial reverts from entering the guilty or no contest plea.
None of this Applies to Me; What Can I Do?
If this information does not apply to you because you were convicted, you may qualify for records sealing. You can file a similar petition for misdemeanor convictions without probation, infraction convictions, completed sentences for certain felonies, or you meet other specific requirements. The CR-180 form may also apply.