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If F-1 Visa Student Petty theft 484a, Cited not booked but read miranda rights, Da reject filing of charge.

Oakland, CA |

If someone got cited at retail store, polices were called in, didn't go to police station but they wrote down driver licence no. give the citation, which driver licen can trace the fingerprints when someone do the fingerprinting at DMV before. Does that person has an arrest record on DOJ and FBI?

And would employers usually ask the person to get authorization for DOJ record?

If able to hire attorney to convince DA not file charge, so in this case should the person wait for a year and file for motion 851.6 to change arrest to detention because the limit of time of filing is one year?
Can the person leave the country for vacation anytime and come back? Or re-new Visa?
What should the person bring along when the person does not have disposition of certified copies of court since case not

What should the person bring along when the person does not have disposition of certified copies of court since case not filed. There is no filing of charge, defense attorney convinced DA not file charge. So should the person file for detention only motion. Because if the person file motion now, might trigger DA/cops file charge?

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Attorney answers 2


You wrote, "there is no filing of charge, defense attorney convinced DA not file charge." If this is the case, then you already hired a defense attorney. Why haven't you asked him/her about this? The likelihood of succeeding on a factual innocence petition is remote unless the DA is on your side which is unlikely unless there is serious proof that you were mistakenly arrested or something like this. In fact there is a serious downside to attempting a factual innocence proceeding (unless the DA assures your attorney that he/she won't oppose the motion) because the DA can put on evidence that the motion shouldn't be granted and evidence standards are relaxed here so negative information can be put on the public record which can hardly help you if the motion is denied. If hired a criminal attorney, use him/her. If you're unhappy with that attorney, hire another one. Also you should consult an immigration attorney regarding any visa consequences though I don't think there any for just an arrest without even a criminal filing. Good luck.



Thank you Mr. Dinakar, when you said, "evidence standards are relaxed here " I am not sure what it means. I understand the difficulties of filing for factual innocence,so wondered if demanding the police to get the detention certificate is a better option, then if the DOJ pops out arrest record, it will show detention only? And would many employers ask someone to get authorization for DOJ report? And will they reject people with petty theft detention/arrest? Concerned about visa consequences because no charges filed so no certified court disposition. Can I still hire another attorney if my defense has already convinced the DA not file charge? B/c this attorney seems too busy.

Vijay Dinakar

Vijay Dinakar


Here's what I (and PC 851.8) says regarding relaxed evidence standards: "Notwithstanding Section 1538.5 or 1539, any judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant, and reliable. A finding of factual innocence and an order for the sealing and destruction of records pursuant to this section shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." Except for certain law enforcement positions California employers are barred from discriminating against persons arrested but not convicted but arrests show up forever and there is practically no way from preventing employers from so discriminating. You are always free to hire another attorney.


Does that person has an arrest record on DOJ and FBI? Yes

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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