Skip to main content

Charged with a felony possession of an assault weapon pc 30605. Atty states case will be dismissed, but DA can refile.

Ventura, CA |

After dismissal (dismissal without prejudice), does the arrest and charge remain on record? Would one have to request records to be expunged (before/after 3 yr SoL), to ensure a clean record? Or does the simple dismissal nullify all records? Finally, does the defendant need to request DNA and fingerprint records to be destroyed, or does the State/Judge order to do that? Thank you.

Attorney Answers 5


  1. The arrest record will always exist unless you successfully petition for factual innocence.
    Robert Driessen

    Mr. Driessen is a former Deputy DA in Orange County with over 8 years of criminal law experience. Nothing stated on this site shall in anyway be construed as legal advice, or as creating any attorney client relationship. If you would like to hire Mr. Driessen, feel free to contact him at www.theocduiguy.com.


  2. The answer is yes, after dismissal of the charge, without prejudice, the arrest and charge will remain on your record.

    Expungement will not "clean" your record of this arrest and charge, in that it will not erase it from the electronic record.

    You do not need to request that your DNA and fingerprint records be destroyed to delete the electronic record.

    The only possible way to have the record of the arrest and charge removed from your record would be if there were a computer error that miraculously deletes it to your benefit or you are able to prevail on a petition for factual innocence under Penal Code 851.8. This is very difficult petition to have granted, as in your case, a case was filed (albeit dismissed later). You will have to have a judge agree that there was no reasonable cause for the arrest. Reasonable cause is defined as a “state of facts that would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime” (People v. Bleich (2009) 178 Cal.App.4th 292, 293).

    Fortunately, the strict rules of evidence that would apply in trial do not apply in the petition. In other words, the court may consider one’s employment history, education, community involvement, volunteer activities and family history.

    However, this also means that the court can consider the entirety of the police report (even if it was successfully suppressed from evidence earlier in the case). It is a common mistake to argue that the police report was inconclusive. The correct standard is that the police report must exonerate you, not just raise a substantial doubt as to one’s guilt (People v. Medina (2009) 178 Cal.App.4th 1092, 1101).

    A hearing on the petition will then follow. If one’s petition is granted, the court order will direct the arresting law enforcement agency, the Department of Justice and all local, state and federal enforcement agencies to which the records were released to destroy the arrest records as well as the request to destroy the records. The documents must be physically destroyed, as well as all entries or notations upon the records pertaining to the arrest.

    Most importantly, having the petition granted allows one to legally say “No” if asked have you ever been arrested for a crime.

    If there is a pending police misconduct or civil rights violation lawsuit pending, the records will not be destroyed until the civil case is resolved. This allows the sealed records to be opened for admission into evidence in the civil lawsuit, if necessary.

    Even if you are fortunate enough to prevail on an 851.8 petition, an expert in this field notes, "the present position of the federal criminal history reporting agencies is that they do not delete or destroy data from NCIC based on state court orders. The position is that state courts lack the jurisdiction (power) to dictate reporting standards to the federal agency."

    She adds, "there has been some marked inconsistency in the practice over the past 3 - 5 years, and it is very difficult to obtain a formal written statement of policy from a policy-level official or the Director. The FBI web-site has from time to time carried an entry on the issue, but the presence of that, too, has varied."

    She opined that "the best option is to request a copy of the NCIC record an appropriate time after notice and service of the 851.8 Order. If the 851.8 Order is noted and the original conviction is also noted, then you can try to use the prescribed process for correcting errors to redress that. Sometimes they yield; most times they don't."


  3. Mr. Driessen is correct. To SEAL the arrest record there must be a finding of factual innocence. Sealing is a very hard thing to accomplish and the DA will likely strongly object should that motion be filed. A DA can also refile a case during the statute of limitations period unless it was dismissed with prejudice. Good Luck


  4. If by "case dismissed" you mean that no complaint was filed, you can go to the arresting law enforcement agency and demand that their records be changed to reflect that is was a detention only, not an arrest. You also have the right to get a certificate of detention from the police pursuant to Penal Code 851.6. If, however, a complaint was filed and then dismissed, this section does not apply. As my colleagues have stated, you could only get the arrest record sealed if you get a finding of factual innocence. This is difficult to get and, even if you get it, does not seal your Federal arrest record.

    The response above is not intended as legal advice. This response does not create an attorney-client relationship. Legal questions can only be fully answered through consultation with an attorney to whom you give full and accurate details. Anything you post here is not confidential and is not protected by the attorney-client relationship. It is highly recommended that you seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting.


  5. In a felony case the DA has the right to two dismissals. Thus if he fails to make his showing at preliminary hearing #1, he/she can refile and try again. After the second dismissal the DA is out of luck but you would still have to take the steps described by colleagues to clean up your record.

Criminal defense topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics