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I was acquitted for entrapment. Can I expunge my arrest record?

Los Angeles, CA |

After going to a jury trial. My PD was able to prove that I was lured into commit a crime by the persuasive behavior of the female cop. I am glad that phase is over and feel good about being back into society as a free man. Now I wonder if I could erase my arrest record for employment-seeking purposes.

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Attorney answers 7

Posted

CA Labor Code section 432.7 prohibits employers from using your arrest record in making hiring decisions, but you are not incorrect in worrying. It is very ineffective for effectuating CA employment law policy.

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Anthony Allen Roach

Anthony Allen Roach

Posted

Actually Labor Code section 432.7 says that an employer cannot ask someone applying for a job for information about an arrest or detention that did not end in a conviction. So it should not even be factoring into their hiring decisions.

Christine C McCall

Christine C McCall

Posted

But the criminal record (in toto) is routinely supplied by the vendors who mine public records info and supply that data as background info for employers. No "asking" is necessary.

Anthony Allen Roach

Anthony Allen Roach

Posted

I see your point now. It seems to me that the employer can use the vendor's record and never tell the applicant why they were refused employment. In that case they would have to file a petition for a finding of factual innocence pursuant to Penal Code section 851.8, subdivision (c).

Christine C McCall

Christine C McCall

Posted

Yes. The vendors' reporting protocols insulate the employers from Labor Code and other constraints. Most vendors are also out of state. See http://www.avvo.com/legal-answers/labor-law-section-432-7-question-1367789.html#answer_2794745 But § 851.8 has its own serious perils. A Factual Innocence Petition carries a very high standard of proof and most are denied. More importantly, the District Attorney's office must be given written advance notice of a Petition for F. I. and the D.A. is allowed to oppose the Petition. For certain specific kinds of crimes, such as domestic violence, D.A. opposition is routine. Few courts will grant a Petition for F. I. over the affirmative objection of the District Attorney. Moreover, if the Petition for F. I. is denied, there has been created a name-searchable public record that a sitting judge made a factual determination that the Petitioner was not factually innocent. This is a much worse situation than before the Petitioner brought the Petition, and it cost a good deal of money and several months of time and hope and effort. A Petition for F. I. should never be brought unless pre-filing negotiations between the Petitioner's attorney and the District Attorney have resulted in an agreement that the D.A. will not oppose the Petition. If the Petitioner's attorney can obtain that agreement, great. Otherwise, the risks are not bearable. In all events, I don't know any DDA who would not object to an FI Petition where the ostensible reason for the acquittal was entrapment.

Anthony Allen Roach

Anthony Allen Roach

Posted

I agree with all that. I've had a clients lose those on appeal, even if they successfully convinced the trial judge that they were factually innocent. So what is your suggestion for this poor fellow?

Christine C McCall

Christine C McCall

Posted

I wish that there were an excellent solution. Legislative reform in the subject matter of employer access to matter not related to employment and job skills if, of course, long overdue. But that need isn't driving the legislative engine right now. I counsel my clients to discuss pro-actively with the prospective employer things that will come up in a background check because spin can make such a difference. What is learned from the applicant is never as troubling as what is reported by the vendor. Some kinds of employment need to be avoided for a long while with this kind of arrest (school teacher, etc.). And just maybe, our asker should consider retaining a skilled and effective attorney to work over the long-term on the DA re a stip to an FI Order. I have seen some successes where the Petitioner's attorney worked the issue intermittently over a very long course of time. I don't have anything better to offer, I am sorry to say.

Posted

It may depend on the court where you were charged and tried. In federal court it is difficult to seal or expunge anything, but state court may be a different matter. I think you should direct this question to your PD. If he or she cannot help you, you might try consulting with a private attorney. Congratulations and good luck.

The response I have provided is general in nature, and does not create an attorney-client relationship. My practice is based in Rhode Island, and the law and practice in other states or jurisdictions may be different.

Posted

The best thing if you have not already done so, is to ask your public defender who did a great job and obtained an acquittal at trial. Congrats on that! As to clearing your criminal record of arrest and being charged, that is a different issue as I'm sure your PD advised you. The burden of proof in a criminal prosecution is proof beyond reasonable doubt, a high standard of proof to convict. The best example is the OJ Simpson case where in the jury acquitted, but in a civil lawsuit, found by a preponderance of evidence that OJ killed his former wife and her friend. To clear your arrest record, it must be shown that you were factually innocent of the crime alleged. Talk to your PD who, based on the acquittal, did you the best absent a dismissal prior to trial. Bottom line is that you have no conviction on your record as a result of this incident so on employment questionnaires, on the question of whether you have a conviction, at least as to this incident, you can truthfully state "no." Beyond that, depending on what you intend to do for employment, the best thing to do is to consult an experienced employment lawyer on how the arrest record can affect you.

Posted

Consider hiring an attorney to do an 851.8 motion

If you are involved in a criminal law matter in Los Angeles, Orange County, Riverside or San Bernardino, California. Consider how much your freedom is worth. Other States have different Laws. Always, consult attorneys in your state!! Use Avvo’s tab “find a Lawyer” above.

YOU HAVE ABSOLUTE RIGHTS TO COUNSEL, TO CONFRONT YOUR ACCUSERS
TO REFUSE TO TESTIFY AGAINST YOURSELF,
TO WITNESSES BEING SUBPEONED,
ETC. GUARANTEED BY THE CONSTITUTION
DO NOT WAIVE THEM, IF NECESSARY ALLOW YOURSELF TO BE ARRESTED. IN MY 40 YEARS OF EXPERIENCE 99% OF THE PERSONS WHO HAVE TALKED WITH THE POLICE HAVE HURT THEIR CASES!!
WOULD YOU BET MONEY ON THOSE ODDS, WHY BET YOUR FREEDOM! POLICE ARE TRAINED IN INTERROGATION TECHNIGUES AND ALLOWED TO LIE, THEY ARE TALKING TO YOU TO GET EVIDENCE TO USE AGAINST YOU!!

YOU CAN TALK TO YOUR ATTORNEY AND HIS STATEMENTS TO THE POLICE CAN NOT BE USED AGAINST YOU.

In all legal matters, the court generally uses the reasoning of IRAC. I for issues, what are the facts and what remedies do you seek. R stands for rules and reasoning, what are the laws and what makes common sense. A is analysis how do the laws and common sense apply, C is conclusion, what are the arguments pro and con..

If judges or juries do not accept your facts, that will change their judgments and each of them have differing biases. Each case is different. No lawyer can guarantee an outcome, at a hearing or trial other facts may come out.

If you like my post, please mark it as “best” or “helpful”. I do not accept collect calls from inside jail or prisons; often they are listened to.

My name is Stephen R. Cohen and have practiced since 1974. I practice in Los Angeles and Orange County, CA. These answers do not create an attorney client relationship. My answers may offend I believe in telling the truth, I use common sense as well as the law. Other state's laws may differ.. There are a lot of really good attorneys on this site, I will do limited appearances which are preparation of court documents it is , less expensive. However generally I believe an attorney is better than none.

Posted

To seal an arrest record you must first petition the arresting agency, then petition the court. The Attorney could have made an oral motion at the time of the acquittal and if the Judge determined your were factually innocent (different than not guilty verdict) then he/she could have ordered the arrest sealed. Now, it must be done through a motion to the court, AFTER petitioning the arresting agency. According to the California Court of Appeals, a finding of factual innocence shall not be made unless no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made, this is a tough burden to meet. You will certainly need an experienced attorney in order to successfully petition and win this motion.

Posted

Yes. You can apply to have your arrest record sealed based upon insufficient probable cause to arrest. This is a separate motion and may not be opposed if you were acquitted in your case.

Sean A Nicholson

Sean A Nicholson

Posted

This is not correct, it is not a probable cause standard.

Maureen Furlong Baldwin

Maureen Furlong Baldwin

Posted

You are correct. 851.8 requires a showing a factual innocence if it is contested.

Posted

You can petition the court for a factual finding of innocence. If it is granted the arrest records will be destroyed.

Sean A Nicholson

Sean A Nicholson

Posted

You must petition the arresting agency first.

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