I was arrested three years ago but the DA never filed anything. I assumed that was the end of it, but a background check for a new job just showed the arrest and I did not get the offer. How is that legal, and how do I make the arrest disappear?
Paraphrased and anonymized. We answer questions like this one every week on free consultation calls.
The Short Answer
An arrest creates a record even when no charges follow, and it will keep surfacing on background checks until you do something about it. California's CARE Act, Penal Code 851.87 through 851.92, lets most people whose arrests never became convictions seal the record as a matter of right: charges never filed, charges dismissed, or an acquittal. Once sealed, the arrest is removed from the state summary that feeds most background checks, and California employers were already barred from asking about arrests that did not lead to conviction. The petition is filed in the county of arrest and typically resolves in a few months.
Why an Arrest Shows Up With No Conviction
Every booking generates entries: the arresting agency's records, the county court file if anything was filed, and your California summary criminal history, the RAP sheet that background check companies mine. Nobody cleans these up automatically when the DA declines to file. The record just sits there, wearing the word arrest, letting strangers draw conclusions the justice system itself never drew.
California law already forbids most employers from asking about or considering arrests that did not end in conviction. But laws against considering something are cold comfort when a screener simply passes on you without explanation. Sealing removes the data itself, which is the protection that actually works.
Who Can Seal as a Matter of Right
Under PC 851.91, you are entitled to sealing, not just eligible, if the arrest did not result in a conviction and the case is genuinely over:
- The DA never filed charges and no longer can
- Charges were filed but dismissed, and cannot be refiled
- You were acquitted at trial
- Your conviction was vacated or reversed on appeal
- Exception: if your record shows a pattern of arrests for domestic violence, child abuse, or elder abuse, sealing becomes discretionary, granted only in the interests of justice, which is a fight we know how to prepare
The Process and the Timeline
The petition is filed in the superior court of the county where the arrest happened and served on the prosecutor and the arresting agency. If sealing is a matter of right and the paperwork is correct, many petitions grant without a contested hearing. Start to finish typically runs a few months, driven mostly by court calendars.
Once granted, the arrest, the booking, and the police reports are sealed: removed from your state summary history, off-limits to the background check industry, and you may lawfully state the arrest did not occur for most purposes. We handled exactly this for a client recently, a successful seal of arrest you can see in our victories, and in most cases the client never appears in court at all.
Sealing vs. Expungement: Which One Do You Need?
The two get confused constantly. Sealing (851.87/851.91) is for arrests that never became convictions: it removes the arrest record itself. Expungement (1203.4) is for convictions where probation was completed: the case is dismissed after the fact, but the record shows a dismissed case rather than nothing. If you have both kinds of history, we sequence both tools. If your record involves juvenile matters, that is a third path, sealing under Welfare and Institutions Code 781, covered in our juvenile records guide.
The honest limits of sealing: law enforcement and prosecutors can still access sealed records, you must still disclose in certain contexts like law enforcement job applications and licensure questions that ask specifically, and sealing one arrest does not clean anything else on the record. We map the whole record before filing anything, so you fix it once, correctly.
This article is attorney advertising and general information, not legal advice about your specific situation, and reading it does not create an attorney-client relationship. Every case is different. For advice about your case, call us for a free, confidential consultation.