New Law, Penal Code 851.87: Easier to Seal Arrest Record in CA

Posted in General FAQ'S on January 5, 2018

If police have arrested you in California but the courts never convicted you, a new state law makes it possible to automatically seal your arrest record. “Sealing” your record means the arrest will not appear on most criminal background checks in the state, although it will still be visible to law enforcement agencies. Learn how California Senate Bill 393 – now California Penal Code 851.87 PC – could affect you as someone with an arrest record.

The Start of Penal Code 851.87

On October 12, 2017, California Governor Jerry Brown signed a Senate Bill into law that authorizes a person who has been arrested but was not convicted to petition the court to seal the arrest record. If prosecution may still charge the individual with any offense upon which they based the arrest, the individual would not qualify for the sealed record. The Judicial Council would legally have to furnish forms to have the arrest record of a qualifying person sealed when petitioned.

An arrested person would only qualify for the sealed record under Senate Bill 393 if prosecution has not charged him/her with domestic violence and certain other violent crimes. A person can still petition for a sealing and win if he or she can show that doing so would “serve the interests of justice.” Under SB 393, the petitioner bears the burden of proof to show that the law entitles him or her to obtain the sealing of the arrest, or to show that the sealing would be just. Once the petitioner satisfies this burden, proof falls on the shoulders of the prosecuting attorney.

Under SB 393, the court would have to issue a written order that states that the arrest never occurred and that the petitioner is free from all penalties and disabilities connected to the arrest. The order would prohibit most parties from disclosing the arrest or information about the arrest. If an unauthorized person were to leak information about a sealed arrest, that person would face a civil penalty. SB 393 is where the new law originated. As of November 2017, the Senate Bill has transitioned into California Penal Code.

What Does the New Law Mean for Arrested Individuals?

In essence, Penal Code 851.87 makes it easier to seal arrest records in California. According to the new law, the legal system will automatically seal arrest records if the prosecution never filed criminal charges against the individual, the courts dismissed criminal charges, or a jury trial found the defendant “not guilty.” An appeal overturning or vacating a conviction, or the defendant completing a pretrial diversion or program such as the Penal Code 1000 defers entry of judgment. If a conviction never happened or was successfully appealed, the courts will automatically seal the arrested individual’s record.

Exceptions to the new law are individuals with an arrest or conviction record for child abuse, elder abuse, and/or domestic violence. However, these individuals can still get their records sealed if a judge says that doing so would service the interests of justice. Getting your arrest record sealed is an important step toward a brighter future. A sealed record means that not just anybody can access your criminal history. An arrest will not follow you to your future housing searches or job applications. Members of the public will no longer be able to see any record of the arrest under the provisions of Penal Code 851.87.