Arrested But Not Charged in California: Deadlines and Record Sealing

If you were arrested but not charged in California, the police had up to 48 hours (excluding Sundays and holidays) to bring you before a judge or release you, and the district attorney has months or years to decide whether to file. Many arrests never produce charges. The arrest itself, however, creates a record that sticks around until automatic relief kicks in or you take steps to seal or destroy it.¹

The 48-Hour Rule After Arrest

If you stay in custody after arrest, California law requires that you be brought before a magistrate within 48 hours, not counting Sundays and holidays.¹ If the window expires while court is closed, the deadline slides to the next session. Arrested Wednesday evening after court closes on a regular week? The deadline lands on Friday.

Not every arrest means a jail hold. An officer who arrests you without a warrant can release you on the spot if there aren’t sufficient grounds for a complaint, or if the arrest involved intoxication or a mental health crisis where treatment fits better than prosecution.² You might also be cited and released with a court date rather than booked.

While you’re in custody, any attorney contacted by you or a family member has a legal right to visit. An officer who blocks that access can face a $500 penalty and misdemeanor charges.¹

Why the Arrest Did Not Turn Into Charges

An arrest and a charge are two separate decisions made by two different people. A police officer can arrest you on probable cause, which just means a reasonable belief you committed a crime. That’s a low bar. The case file then goes to the local district attorney’s office for review.

The DA applies a much tougher standard. To file, a prosecutor generally has to believe the case can be proven beyond a reasonable doubt at trial. The gap between “reasonable belief” and “proof beyond a reasonable doubt” is where most declined cases die. The prosecutor may need more evidence, may find the officer’s account weak, or may simply conclude a conviction is unlikely. Review can take days, weeks, or months, and you may hear nothing during that time.

What the DA May Decide

Once the file lands on a prosecutor’s desk, a few things can happen:

Charges are filed and you’re called to arraignment.
The case is declined. No charges are filed, but the DA can revisit the decision if new evidence surfaces before the statute of limitations runs.
The case is sent back for more investigation before a final call.
A prefiling diversion program is offered for certain low-level offenses; you complete requirements and no charges are formally filed.

If the DA declines the case, nobody is required to tell you. Many people find out only by checking case records online or calling the DA’s office. Follow up, because the outcome shapes what you can do about the arrest record.

How Long the DA Has to File Charges

The door doesn’t stay open forever. California’s statute of limitations sets firm deadlines measured from the date of the alleged offense, not from the arrest date:

Misdemeanors: one year.³
Standard felonies: three years. Covers most felonies not listed below.⁴
Serious felonies punishable by eight or more years in prison: six years.⁵
Murder, offenses punishable by death or life imprisonment, and embezzlement of public funds: no time limit.

Because the clock starts on the offense date, an arrest six months after an alleged misdemeanor leaves the DA six months to file, not a full year. Once the deadline passes, the case is dead.

Getting Your Bail Money Back

If you posted cash bail and the prosecutor never files charges, that money should be returned once the case is resolved. Cash bail is collateral, and with no case to secure your appearance for, the court releases it.

A bail bond works differently. The fee you paid a bondsman is a premium for the service of posting the full bond amount, and that premium is non-refundable regardless of what happens with your case. The service was performed the moment you walked out. No California law requires police or prosecutors to reimburse bail bond fees when charges never come. Read the refund provisions of any bail bond contract before signing; in practice most bail bond companies do not refund premiums.

The Arrest Record Still Exists

Booking creates a record. Your fingerprints and photograph go into a statewide database maintained by the California Department of Justice. That record exists whether or not charges are ever filed, and it does not clear itself.

Reclassification as a Detention

California law says that when you’re arrested and released without charges filed, the arrest is automatically reclassified as a “detention.” The arresting agency is supposed to issue a certificate confirming the reclassification and update the DOJ’s records.² Agencies don’t always follow through. If yours hasn’t, you may need to request compliance directly.

Employment and Background Checks

California prohibits most employers, public and private, from asking about or considering an arrest that didn’t lead to a conviction. The prohibition covers applications, interviews, and third-party background checks, and applies from hiring through promotions and termination.⁶

There are carve-outs. Peace officer positions and criminal justice agencies are fully exempt. Health facilities can ask about arrests related to sex offenses (for patient-access positions) or drug offenses (for positions with medication access). Employers can also ask about an arrest if you’re currently out on bail or awaiting trial.⁶

Automatic Record Relief

Since October 1, 2024, California’s Department of Justice reviews its statewide criminal databases monthly and automatically grants arrest record relief to eligible people. Coverage reaches back to arrests dating January 1, 1973.⁷

Waiting periods depend on the severity of the alleged offense:

Misdemeanor arrests: eligible after one calendar year with no charges filed and no conviction.
Felony arrests: eligible after three calendar years with no charges filed and no conviction.
Serious felonies punishable by eight or more years: eligible after six years with no charges filed and no conviction.⁷

Anyone who successfully completed a related diversion program is also eligible, regardless of the waiting period.⁷

Automatic relief is not the same as sealing or expungement. The DOJ is explicit that the process “is not a dismissal, sealing or expungement” of your criminal history record.⁸ The record still sits in the DOJ database, but with a notation of relief. Legally, the arrest is “deemed not to have occurred,” and you’re released from penalties and disabilities connected to it.⁷ You don’t file anything, but you also aren’t notified when relief is granted. Checking your state criminal history through the DOJ is the only way to confirm it.

Petitioning to Seal Your Arrest Record

If waiting isn’t practical, or you want a stronger remedy, you can petition a court to seal your arrest record under Penal Code 851.91. Sealing goes further than automatic relief: it makes the record unavailable to the general public, and anyone outside a criminal justice agency who discloses information from a sealed arrest faces a civil penalty between $500 and $2,500 per violation.⁹¹⁰

The process uses Judicial Council Form CR-409, “Petition to Seal Arrest and Related Records,” available in English, Spanish, Chinese, Vietnamese, and Korean.¹¹ File the petition in the superior court that would have had jurisdiction over the case.⁹ This route is worth considering when you need the record sealed quickly for a job or housing application, or when a felony arrest would otherwise mean a three-to-six-year wait for automatic relief.

One limitation matters. Even after sealing, criminal justice agencies can still access the record and use it in the regular course of their duties, including discussing it in open court.¹⁰ Sealing shields you from private employers and landlords, not from law enforcement.

Factual Innocence and Destruction of the Record

The strongest remedy is a finding of factual innocence under Penal Code 851.8. Unlike sealing, this leads to physical destruction of the arrest record after a three-year sealing period. The tradeoff is a much higher burden: you must show that no reasonable cause existed to believe you committed the offense in the first place.¹²

You start with the arresting agency, not the court. Petition the law enforcement agency and send a copy to the prosecuting attorney’s office. If both agree you’re factually innocent, the agency seals the records for three years and then destroys them. If the petition is denied, or 60 days pass after the statute of limitations has run with no response, you can bring the matter to superior court.¹²

In court, you carry the initial burden of proving there was no reasonable cause for the arrest. If you clear that hurdle, the burden shifts to the prosecution to show that reasonable cause did exist. This is where most factual innocence petitions fail. “No charges filed” doesn’t mean “no reasonable cause.” A prosecutor might have declined the case for strategic reasons while still believing the arrest was justified. Factual innocence is reserved for cases where the arrest itself was genuinely baseless, such as a misidentification or an alibi that eliminates you as a suspect.¹²

1
California Legislative Information. California Penal Code 825 – Time for Taking Defendant Before Magistrate
2
California Legislative Information. California Penal Code 849.5
3
California Legislative Information. California Penal Code 802 – Commencement of Prosecution, One Year Limitation
4
California Legislative Information. California Penal Code 801 – Commencement of Prosecution, Three Year Limitation
5
California Legislative Information. California Penal Code 800 – Commencement of Prosecution, Six Year Limitation
6
California Legislative Information. California Labor Code 432.7 – Arrest or Detention Records
7
California Legislative Information. California Penal Code 851.93 – Automatic Arrest Record Relief
8
California Department of Justice. Automatic Record Relief – Penal Code Sections 851.93 and 1203.425
9
California Legislative Information. California Penal Code 851.91 – Sealing of Arrest Records
10
California Legislative Information. California Penal Code 851.92 – Effect of Sealed Arrest Records
11
California Courts Self-Help. Petition to Seal Arrest and Related Records (CR-409)
12
California Legislative Information. California Penal Code 851.8 – Determination of Factual Innocence