Sealing a California Arrest Record: Penal Code § 851.91 and CARE Act

If you were arrested in California but never convicted, that arrest can still show up on background checks — costing you jobs, housing, and other prospects. California Penal Code § 851.91, known as the Consumer Arrest Record Equity Act (“CARE Act”), gives most people in that situation the right to seal their arrest record. Enacted on January 1, 2018, the CARE Act replaced a process that required people to prove they were “factually innocent” which is a high bar.  Under Penal Code § 851.91, if an individual was arrested but were never convicted, the arrest is entitled to be sealed as a matter of right.

For information on early termination of probation, felony reduction, and expungement, see: Early Termination of Probation and Felony Reduction to Misdemeanor and Expungement.

Do You Qualify?

You are likely eligible if one of the following is true:

• You were arrested but charges were never filed, and the statute of limitations has expired
• Charges were filed but later dismissed and cannot be refiled
• You were acquitted — found not guilty — at trial
• Your conviction was later vacated or overturned on appeal
• Charges were dismissed after completing a pretrial diversion program

You may not qualify if:

• The statute of limitations has not yet expired, and charges could still be filed
• The arrest involved a charge with no statute of limitations (such as murder) and you were not acquitted
• You intentionally evaded prosecution by fleeing or using identity fraud
• The arrest involved domestic violence, child abuse, or elder abuse — these cases require an additional showing that sealing serves the interests of justice
• You were not arrested

What Does “Sealing” Mean?

Once a court seals your arrest under Penal Code § 851.91, the law treats the arrest as if it never happened. The arrest will not appear on standard employment, housing, or school background checks. And, while you may legally answer “no” when asked by employers, landlords, or schools whether you have been arrested, it always best to consult an attorney before doing so. Doors that were previously closed — professional licenses, housing applications, school admissions — may reopen. 

It is important to note the limits of “sealing” an arrest. Law enforcement agencies, certain government security bodies, and some professional licensing boards can still access sealed records. For example, peace officer applicants and those seeking certain government positions may still be required to disclose arrests that were sealed. Therefore sealed records remain accessible to federal law enforcement and some government agencies. If you are applying for a federal position, security clearance, or certain licenses, you may still be required to disclose the arrest. 

Sealing an arrest under Penal Code § 851.91 does not restore firearm rights.

How the Process Works

Each arrest requires its own separate petition, and can take many months. An attorney can assist you in retrieving the official record from the arresting agency. Upon receiving that record, the next step is to file the petition at the courthouse where charges were originally brought, or in the county of arrest. The petition must include the arrest date, agency, offense involved, and a statement supporting your right to have the record sealed. Proper notice must also be served on the prosecution. In some instances, when requested, one then attends a hearing on the petition. 

There are no fixed deadlines to file. Arrests from years or even decades ago may still be eligible, as long as the statute of limitations on the underlying offense has expired.

This process does not apply to those who were not arrested but charged with a crime that was later dismissed.  An arrest means that a person was taken into custody. People v. Hatcher (1969) 2 Cal.App.3d 71. Relief is therefore limited to those who are arrested. People v. Hadim (2022) 82 Cal.App.5th Supp. 39. 

A Note on Automatic Sealing

Under California’s Clean Slate Act (AB 1076) (eff. July 1, 2022), some arrests may be sealed automatically by the California Department of Justice, including misdemeanor arrests with no charges filed after one year, and felony arrests after three years. In practice, automatic sealing has been inconsistently applied. Filing a petition under Penal Code § 851.91 is often the faster and more reliable path.

The information provided here is for general purposes only. At Delahunty & Nash LLP, our background as former federal prosecutors and criminal defense attorneys enables us to provide highly individualized representation tailored to your specific situation. From our San Francisco office, we serve clients throughout California and across federal courts in the United States. We regularly represent professionals, executives, healthcare providers, and individuals with significant reputational concerns. If you are seeking discreet, strategic guidance, contact a federal criminal defense attorney who understands the importance of privacy and precision.

George Tran

George Tran is an experienced trial lawyer with a proven record of success in high-stakes litigation and government investigations. As a former prosecutor with the U.S. Department of Justice and Santa Clara County District Attorney’s Office, he has led scores of complex criminal investigations into fraud, embezzlement, money laundering, tax evasion, and public corruption. He has tried over 30 cases to verdict in federal and state courts across the country and brings substantial experience navigating courtroom proceedings. Learn more here.