Penal Code 851.87 PC | Seal and Destroy Arrest Records

Penal Code 851.87 PC | Seal and Destroy Arrest Records

Having an arrest on your record can negatively impact your life in many ways, even if you were never charged or convicted of a crime. Fortunately, California law provides a way for people to have their arrest records sealed and destroyed under Penal Code 851.87 PC.

This law allows those who were arrested but never formally charged with a crime to petition the court to have their arrest record sealed and destroyed. It offers a clean slate and chance to move on with life without the burden of an arrest record.

What is Penal Code 851.87 PC?

Penal Code 851.87 PC allows people who were arrested but never charged with a crime to petition the court to have their arrest record sealed and destroyed . To qualify, the following conditions must be met:

• You were arrested by a peace officer
• No accusatory pleading (formal charges) were filed against you
• No conviction occurred, your case was not diverted, and you did not participate in a deferred entry of judgment program

If all those conditions are met, you can petition the court to seal and destroy all arrest records, including records in the Department of Justice and law enforcement agency files. The court will grant the petition as long as there are no objections from law enforcement and no evidence shows you are ineligible.

Why Seal and Destroy Arrest Records?

Even without a conviction, an arrest record can hurt your reputation and opportunities. Sealing and destroying records under PC 851.87 offers several benefits:

• Improved employment opportunities – Many employers do background checks and may not hire someone with an arrest.
• Housing access – Landlords often check criminal records and may deny housing based on arrests.
• Immigration status – Arrests can impact visa applications or lead to deportation.
• Peace of mind – Eliminates stress and embarrassment about the arrest.

Sealing records essentially allows you to legally omit the arrest from job and housing applications. Destroying records ensures the arrest cannot be accessed or used against you in the future.

Eligibility Requirements

To have an arrest record sealed and destroyed under PC 851.87, you must meet all of the following:

• You were arrested for a misdemeanor or felony crime by a California peace officer
• No accusatory pleading (formal charges) were filed against you by the prosecuting attorney
• No criminal conviction occurred in your case
• Your case was not diverted and you did not participate in a deferred entry of judgment program
• You are factually innocent of the charges for which you were arrested
• There are no statutory exclusions that apply (see below)

You are not eligible if any of the following apply:

• You have an outstanding arrest warrant
• You are currently charged with a criminal offense
• You are on probation or parole for a different offense

There are also exclusions for certain serious offenses like murder, sexually violent crimes, and felony domestic violence. However, an experienced criminal defense lawyer may still be able to help you clear your record of arrests for excluded offenses.

How to Petition to Seal & Destroy Arrest Records

Here is the basic process to petition for relief under PC 851.87:

1. Obtain copies of your criminal records, including from the DOJ and arresting agency.
2. Complete the proper petition forms – CR-409 and CR-410
3. File the petition with the court in the county where you were arrested.
4. Serve copies to the arresting agency and DOJ.
5. Attend your court hearing date.
6. If approved, serve the order to seal and destroy records.

This process can be complicated, with many technical requirements. Having an experienced criminal defense lawyer assist you will help ensure success. The law also allows you to request that the court waive applicable fees if you cannot afford them .

Objections from Law Enforcement

The arresting agency and DOJ have 60 days to object to your petition if they believe evidence shows you are ineligible. For example, objections may occur if:

• There are errors or omissions in your petition
• You have a disqualifying prior conviction
• The offense is statutorily excluded

If an objection is filed, the court will schedule a hearing to evaluate the evidence from law enforcement and determine whether to grant or deny the petition.

Success Rates

Success rates for record sealing under PC 851.87 are relatively high. According to a Stanford study, over 75% of petitions were granted from 2009-2018 . However, each case has unique circumstances. An experienced criminal lawyer can help craft a persuasive petition and navigate any objections to give you the best chance of success.

Next Steps After Sealing & Destroying Records

Once your petition is granted, make sure to obtain certified copies of the order. You will need to serve these on the DOJ and arresting agency to enforce the order and complete the record sealing process. Obtain declarations of service as proof.

Going forward, you can legally answer “no” if asked about the arrest on job, housing, or school applications. There are limited circumstances where sealed records could still be accessed, but destruction ensures the arrest will not haunt you again.

Finding the Right Lawyer

Clearing your criminal record through PC 851.87 can be life-changing, but the process is complex. An experienced criminal defense lawyer can help maximize your chances of success. When choosing an attorney, look for these key traits:

• Knowledge of Penal Code 851.87 – Find someone well-versed in record sealing laws and procedures.
• Attention to detail – Petitions must be prepared perfectly to avoid objections.
• Strong advocacy skills – If an objection occurs, you need an aggressive lawyer to fight for your rights.
• Good reputation with courts and law enforcement – This can help influence outcomes in your favor.

Take time to research lawyers’ backgrounds and consult with several before deciding. The right legal guidance can help clear your record and give you a clean slate.

The Bottom Line

Arrest records can tarnish reputations and close doors even without a conviction. But Penal Code 851.87 gives those never formally charged with a crime the chance to remove the burden of an arrest record.

This law allows sealing and destroying records held by DOJ and law enforcement agencies. It offers hope for a better future, free from the mistakes of the past. With legal guidance, you may be able to clear your record and move on with life.

Don’t let an arrest record continue haunting you. Take action to seal and destroy it under PC 851.87.

References

California Penal Code 851.87 PC

Petition forms CR-409 and CR-410

California Penal Code 851.91 PC

Stanford Misdemeanor Justice Study