Seal Arrest Records Lawyers (PC 851.91)

An arrest that never led to a conviction is still following you. Under PC 851.91, you can seal it. Our San Diego lawyers handle the entire petition process. Call 24/7.

A single arrest, even one that never resulted in charges, can show up on every background check you go through. Employers see it. Landlords see it. Licensing boards see it. And most of them draw their own conclusions long before you get a chance to explain what actually happened.

The circumstances that lead to an arrest without a conviction are rarely black and white. A misunderstanding that got out of hand. An accusation from someone with an agenda. Being in the wrong place at the wrong time. Charges the DA reviewed and decided not to file. A case that went to trial and ended in acquittal. None of these scenarios should define the rest of your life.

What matters now is the defense you build, not against criminal charges this time, but against the lasting damage an arrest record can cause. California law, specifically Penal Code Section 851.91, gives you the right to petition the court to seal your arrest record so that for most purposes it is treated as though it never happened.¹

At David P. Shapiro Criminal Defense Attorneys, we’ve helped clients throughout San Diego County clear arrest records that were holding them back from jobs, housing, professional licenses, and peace of mind. As experienced San Diego expungement and record clearing lawyers, we handle the entire petition process, from pulling your DOJ criminal history to presenting the case in court.

The bottom line is this: if your arrest didn’t result in a conviction, you likely have the right to seal it. The process is straightforward when handled correctly, but the details matter. Time matters. Early action creates options that disappear later.

Quick Reference: PC 851.91 Arrest Record Sealing

Type of Relief	Petition-based sealing of arrest records
Eligibility	Arrests that did not result in a conviction
Burden on Petitioner	Preponderance of the evidence
Burden on Prosecution (to oppose)	Clear and convincing evidence that sealing is not in the interests of justice
Filing Location	Superior court in the county where the arrest occurred
Waiting Period	None (if charges were never filed, dismissed, or resulted in acquittal)
Legal Effect	Arrest deemed never to have occurred for most purposes
Federal Limitation	Federal agencies (immigration, military) may still access sealed records

What Does “Sealing” an Arrest Record Actually Mean?

So what does it mean to “seal” an arrest record under California law? Well, Penal Code Section 851.90 defines the legal effects, and they’re significant.²

When an arrest record is sealed, it is removed from public view. Standard background checks, the kind run by employers, landlords, and most licensing boards, will not show the arrest. For all intents and purposes, the arrest is legally deemed never to have occurred.³

That means you can truthfully answer “no” on employment applications that ask whether you’ve been arrested. You can truthfully answer “no” on housing applications. You can truthfully answer “no” on most professional licensing applications.

Now here’s the critical distinction: sealing is not destruction. The records still exist in law enforcement databases. Certain agencies retain access, and understanding those exceptions is just as important as understanding the benefits.

What Sealing Does

• Removes the arrest from standard criminal background checks
• Allows you to legally deny the arrest occurred on most applications
• Prevents employers from using the arrest against you in hiring decisions
• Prevents landlords from using the arrest to deny housing
• Removes the arrest from your DOJ criminal history (RAP sheet) for most purposes

What Sealing Does NOT Do

This is where many attorneys and websites oversell the remedy. We think you deserve the full picture.

Federal agencies are not bound by state sealing orders. This is critical for anyone dealing with immigration matters. U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) can still access sealed California arrest records and consider them in immigration proceedings.⁴ If you have immigration concerns, we strongly recommend consulting with an immigration attorney in addition to pursuing record sealing.

Certain state agencies retain access. The Commission on Peace Officer Standards and Training (POST) can still see sealed records when evaluating candidates for law enforcement positions. Prosecutors can access sealed records for charging decisions in subsequent cases.

Military background investigations may still uncover sealed records. For service members and applicants with security clearances, federal investigators have access that goes beyond state sealing orders. More on this below.

Who Qualifies to Seal an Arrest Record?

Under PC 851.91, you may petition to seal your arrest record if the arrest did not result in a conviction.⁵ What does that look like in practice? Well, it covers a wide range of scenarios:

1. No charges were ever filed. You were arrested, booked, maybe spent a night in jail, and then nothing happened. The DA reviewed the case and declined to file. This is one of the most common situations we see.

2. Charges were filed but later dismissed. The case started moving through the system, but at some point the charges were dropped. Maybe the evidence didn’t hold up. Maybe a witness recanted. Maybe the prosecution realized they couldn’t meet their burden.

3. You were acquitted at trial. A jury heard the evidence and returned a not guilty verdict. Despite that, the arrest still shows on your record unless you take action to seal it.

4. Your conviction was vacated or reversed on appeal. A court determined that the conviction should not stand, and it was overturned. The underlying arrest can now be sealed.

5. You completed a pre-trial diversion program. Under PC 851.92, if you successfully completed a diversion program and the charges were dismissed as a result, you can petition to seal the arrest.⁶

6. The statute of limitations has expired. For arrests where no charges were filed, once the SOL runs out, there is no possibility of future prosecution, which strengthens the case for sealing.

Who Does NOT Qualify?

Sealing is not available in every situation. You cannot seal an arrest record if:

• Charges are still pending from the arrest. You must resolve the case first.
• You are required to register as a sex offender under Penal Code Section 290.⁷
• There is an active warrant related to the arrest.
• The prosecution demonstrates by clear and convincing evidence that sealing would not be in the interests of justice.⁸

There are also specific considerations for arrests involving domestic violence allegations, even without a conviction. If you have questions about whether your specific situation qualifies, that’s exactly the kind of thing we evaluate during a consultation.

Automatic Sealing vs. Petition-Based Sealing

Here’s something that confuses a lot of people, and understandably so. California actually has two pathways to seal arrest records, and they work differently.

Automatic Sealing (PC 851.87)

Under PC 851.87, the California Department of Justice is required to review arrest records on an ongoing basis and automatically seal those that qualify.⁹ This was significantly expanded by Senate Bill 731 in 2022.

Arrests that qualify for automatic sealing include those where no charges were filed and the statute of limitations has expired, charges were dismissed, or the person was acquitted.

Sounds great, right? Well, here’s the reality of the situation: the automatic process is slow and unreliable. The DOJ is processing millions of records. Many eligible arrests that should have been sealed months or even years ago remain unsealed. We’ve had clients come to us who qualified for automatic sealing but whose records were still showing up on background checks.

Petition-Based Sealing (PC 851.91)

Filing a petition under PC 851.91 puts you in control of the timeline. You file the petition, the court reviews it, and if granted, you receive a court order that you can present immediately to employers, landlords, and licensing boards.

Why file a petition when automatic sealing exists?

• You get a court order you can use right away, rather than waiting for DOJ to process your record
• You control the timeline instead of relying on a bureaucratic backlog
• You can address any potential prosecution opposition proactively
• You have documentation proving the record was sealed, which matters when a background check company hasn’t updated their database yet

The bottom line: even if you technically qualify for automatic sealing, filing a petition is almost always the smarter move. Certainty and speed matter when your career, housing, or professional license is on the line.

The Petition Process in San Diego

What does the process actually look like? Let’s walk through it step by step.

Step 1: Obtain Your DOJ Criminal History

Before filing anything, we pull your Department of Justice criminal history record (commonly called a “RAP sheet”) through a Live Scan. This tells us exactly which arrest records exist, what disposition is reflected, and whether any disqualifying conditions are present. This step is essential because it prevents surprises and allows us to build the strongest possible petition.

Step 2: Prepare and File the Petition

The petition is filed in the superior court of the county where the arrest occurred.¹⁰ In San Diego County, that means:

• Central Division (Hall of Justice, 1100 Union Street, San Diego) for arrests in central San Diego
• South Bay Division (500 Third Avenue, Chula Vista) for arrests in the South Bay area
• East County Division (250 E. Main Street, El Cajon) for East County arrests
• North County Division (325 S. Melrose Drive, Vista) for North County arrests

The petition includes documentation establishing your eligibility: court records, disposition reports, and your DOJ criminal history showing no conviction resulted from the arrest.

Step 3: Service on Prosecution and Law Enforcement

The petition must be served on the prosecuting agency (in most cases, the San Diego County District Attorney’s Office) and the arresting law enforcement agency. This gives them the opportunity to review the petition and decide whether to oppose it.

Step 4: Response Period and Hearing

The prosecution has a window to file an opposition. In straightforward cases, where charges were never filed or were dismissed, opposition is uncommon. If the prosecution does oppose, the court holds a hearing where both sides present their positions.

Here’s the key: the prosecution can only block sealing by demonstrating, through clear and convincing evidence, that sealing would not be in the interests of justice.¹¹ That is a high bar. It is not enough for them to simply object. They must affirmatively prove that keeping your arrest record public serves a legitimate purpose.

Step 5: Court Order and DOJ Processing

If the petition is granted, the court issues an order directing that the arrest record be sealed. That order is sent to the DOJ, which updates state records. DOJ processing after the court order typically takes an additional 30 to 60 days to fully update.

In the meantime, you have the court order itself, which you can present directly to employers, landlords, or licensing boards if needed.

Realistic Timeline

From filing to court order in San Diego County, expect approximately 60 to 120 days for straightforward cases. Complex cases, particularly those involving prosecution opposition, may take longer. After the court order, DOJ processing adds another 30 to 60 days.

Sealing vs. Expungement vs. Factual Innocence: Understanding the Differences

This is one of the most misunderstood areas of California record relief, and getting it wrong can cost you time and money. Let’s break down the differences.

Arrest Record Sealing (PC 851.91)

• Who qualifies: People arrested but not convicted
• What it does: Seals the arrest from public view; arrest deemed never to have occurred
• Burden of proof: Petitioner must show eligibility by preponderance of the evidence
• Records: Sealed (still exist but not publicly accessible)

Expungement / Dismissal (PC 1203.4)

• Who qualifies: People who were convicted and completed probation or their sentence
• What it does: Withdraws guilty plea, enters not guilty plea, and dismisses the case¹²
• Burden of proof: Must show completion of probation and eligibility
• Records: Conviction is updated to show dismissal, but the record of the case still exists

The key difference: Sealing is for arrests without convictions. Expungement under PC 1203.4 is for convictions. If your case resulted in a conviction, you need expungement, not arrest record sealing under PC 851.91.

Factual Innocence (PC 851.8)

• Who qualifies: People who are factually innocent of the offense for which they were arrested
• What it does: Complete destruction of arrest records, not just sealing¹³
• Burden of proof: Petitioner must prove factual innocence by a preponderance of the evidence. This is a much higher practical burden than sealing because you must demonstrate you did not commit the offense, not merely that you weren’t convicted.
• Records: Destroyed entirely

When to pursue factual innocence instead of sealing: If you were genuinely wrongly arrested (mistaken identity, false accusation with clear proof of innocence), a factual innocence finding under PC 851.8 provides a more complete remedy. However, the burden is significantly higher, and many people who qualify for sealing would not succeed on a factual innocence petition. We evaluate both options for every client.

Quick Comparison

Remedy	Statute	For Whom	Records	Burden
Arrest Record Sealing	PC 851.91	No conviction	Sealed	Preponderance
Expungement	PC 1203.4	Conviction (probation completed)	Updated/Dismissed	Eligibility showing
Factual Innocence	PC 851.8	Wrongly arrested	Destroyed	Factual innocence by preponderance
Conviction Sealing	PC 1203.4a	Certain convictions	Sealed	Eligibility + time period

Strategies for a Successful Petition

The petition process under PC 851.91 is not a criminal trial, but it still requires preparation, strategy, and attention to detail. Here are the approaches we take to maximize the likelihood of success.

Preempting Prosecution Opposition

The prosecution’s only avenue to block your petition is to demonstrate, by clear and convincing evidence, that sealing would not serve the interests of justice.¹⁴ We can, and will, preempt that argument if the facts support a position to do so.

We prepare evidence of rehabilitation, community ties, employment history, and the concrete harm the unsealed arrest record has caused. By the time the prosecution reviews the petition, the case for sealing is already overwhelming.

Demonstrating Concrete Harm

Courts are more inclined to grant petitions when the petitioner can show specific, tangible ways the arrest record has caused damage. We document employment denials, housing rejections, professional licensing complications, and reputational harm. This isn’t just about checking a legal box. It’s about showing the court why sealing matters for this particular person.

Addressing Potential Disqualifying Conditions

If your arrest involved a domestic violence allegation or an offense that raises questions about the statutory exceptions, we address those issues head-on in the petition rather than waiting for the prosecution to raise them. Proactive transparency is almost always more effective than reactive explanation.

Coordinating Multiple Arrest Records

If you have more than one arrest without a conviction, we coordinate petitions to seal all qualifying records simultaneously. Piecemeal record clearing is inefficient and leaves gaps that continue to cause harm. Comprehensive relief in a single filing is the goal. In some cases, clients also benefit from pursuing early termination of probation or a felony reduction under PC 17(b) for related matters that did result in a conviction.

Establishing Statute of Limitations Expiration

For arrests where no charges were filed, demonstrating that the statute of limitations has expired eliminates any argument that the prosecution might still pursue charges. The SOL varies by offense: one year for most misdemeanors, three years for most felonies, with certain serious offenses carrying longer or no limitations periods.¹⁵ We verify the applicable SOL and include that analysis in the petition.

Filing Even When Automatic Sealing Applies

As discussed above, the DOJ’s automatic sealing process is unreliable. We file petitions for clients who technically qualify for automatic sealing because a court order provides certainty, speed, and a document you can use immediately. Waiting for the DOJ to get around to your record is not a strategy.

Special Considerations for San Diego Residents

San Diego’s unique demographics create specific situations where arrest record sealing is particularly important.

Military Service Members and Veterans

San Diego is home to one of the largest military populations in the country: Camp Pendleton, MCAS Miramar, Naval Base San Diego, Naval Base Coronado, and numerous other installations. For active duty service members, reservists, and veterans, an unsealed arrest record can affect security clearances, promotions, reenlistment eligibility, and transition to civilian employment.

What you need to know: federal military background investigations can access records beyond what state sealing orders restrict. Sealing your arrest record under California law is still valuable because it removes the record from standard civilian background checks, protects you in the civilian job market, and demonstrates proactive record management. But for security clearance purposes, full disclosure obligations may still apply depending on the level of clearance and the specific question asked.

We work with service members to understand the intersection between California sealing law and federal military requirements so there are no surprises.

Immigration Concerns

San Diego’s proximity to the border and diverse population mean that many of our clients have immigration considerations. This is where honest counsel matters most.

Federal immigration authorities, including USCIS and ICE, are not bound by California’s arrest record sealing orders.¹⁶ A sealed arrest may still be accessible to and considered by federal agencies in immigration proceedings. This does not mean sealing is pointless for immigrants. It still provides significant benefits for employment, housing, and state-level licensing. But it is not a complete shield against federal immigration consequences.

If you have immigration concerns, we recommend pursuing arrest record sealing alongside consultation with a qualified immigration attorney who can evaluate how the arrest may affect your specific immigration situation.

The San Diego Job Market

San Diego’s major industries, including biotech, defense contracting, healthcare, and technology, routinely conduct thorough background checks. An unsealed arrest record, even without a conviction, can be the difference between getting the job and getting passed over. Sealing removes that barrier. For those whose cases did result in a conviction, a certificate of rehabilitation may provide additional relief for professional licensing purposes.

Facing an Arrest Record That Won’t Go Away?

When an arrest that never led to a conviction keeps showing up on background checks, costing you jobs, housing, or professional opportunities, you need attorneys who understand the petition process inside and out. We’ve handled arrest record sealing petitions throughout San Diego County, from straightforward cases where charges were never filed to complex situations involving multiple arrests, prosecution opposition, and sensitive professional licensing concerns. We know the local courts, we know the process, and we know how to build a petition that gets results.

Every day that arrest record remains unsealed is another day it can cost you an opportunity. The sooner we start, the more options you have.

Contact our team today for a consultation. We’ll review your record, confirm your eligibility, and explain exactly what sealing can and cannot do for your specific situation. You are entitled to move forward without an arrest that didn’t lead to a conviction holding you back.

References

1. 1. Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].↑ Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].
2. 2. Penal Code, § 851.90 [Definition and legal effects of sealing arrest records].↑ Penal Code, § 851.90 [Definition and legal effects of sealing arrest records].
3. 3. Penal Code, § 851.90 [Definition and legal effects of sealing arrest records].↑ Penal Code, § 851.90 [Definition and legal effects of sealing arrest records].
4. 4. See 8 U.S.C. § 1101 et seq. [Federal immigration law is not preempted by state record sealing orders].↑ See 8 U.S.C. § 1101 et seq. [Federal immigration law is not preempted by state record sealing orders].
5. 5. Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].↑ Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].
6. 6. Penal Code, § 851.92 [Sealing of arrest records after successful completion of diversion or deferred entry of judgment].↑ Penal Code, § 851.92 [Sealing of arrest records after successful completion of diversion or deferred entry of judgment].
7. 7. Penal Code, § 290 [Sex offender registration requirement].↑ Penal Code, § 290 [Sex offender registration requirement].
8. 8. Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].↑ Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].
9. 9. Penal Code, § 851.87 [Automatic sealing of arrest records].↑ Penal Code, § 851.87 [Automatic sealing of arrest records].
10. 10. Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].↑ Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].
11. 11. Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].↑ Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].
12. 12. Penal Code, § 1203.4 [Expungement; dismissal of charges after completion of probation].↑ Penal Code, § 1203.4 [Expungement; dismissal of charges after completion of probation].
13. 13. Penal Code, § 851.8 [Determination of factual innocence; destruction of arrest records].↑ Penal Code, § 851.8 [Determination of factual innocence; destruction of arrest records].
14. 14. Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].↑ Penal Code, § 851.91 [Petition-based sealing of arrest records where arrest did not result in conviction].
15. 15. See Penal Code, § 799 et seq. [Statutes of limitations for criminal offenses].↑ See Penal Code, § 799 et seq. [Statutes of limitations for criminal offenses].
16. 16. See 8 U.S.C. § 1101 et seq. [Federal immigration law is not preempted by state record sealing orders].↑ See 8 U.S.C. § 1101 et seq. [Federal immigration law is not preempted by state record sealing orders].