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Is it possible to expunge arrest records for 243(e) if the DA sent the paperwork back to the agency without filing (DA Reject)?

Aliso Viejo, CA |

My wife and I were arguing because she believed I was having an affair (I wasn't). She decided to wreak havoc in my office, and when I attempted to leave she blocked my exit. I told her (not nicely) to move; she didn't. I picked her up, set her on the couch, and walked away (no injuries, except my pride). Police were called and I went to jail because I picked her up. My wife insisted that she would refuse to cooperate w/ the DA. When I was released from jail we hired an excellent lawyer. This is my first/only offense. My lawyer says it’s very difficult and unlikely to successfully execute 851.8 to expunge my arrest; however I am seeking further input. I am concerned about my future employment. After the reject my wife and I voluntary signed up for anger classes to avoid future incidents

Attorney Answers 5


  1. Best answer

    There is a substantial downside to petitioning under 851.8 and that is, if the District Attorney opposes, there will be a factual hearing and a body of evidence will be admitted and reported (transcript) in a public proceeding. That evidence can be admissible in other matters in the future. There is no good reason to cause that transcript of evidence to be created unless it is a near-certainty that the petition will be successful or that the D A will not oppose.

    This is a strategic analysis that not every attorney concurs with. It should be considered for its potential application and affect on your life before you plunge forward. Because of the subject matter of much of my practice -- occupational and professional State and federal licensing -- I am especially concerned about unnecessarily creating admissible evidence that can be disadvantageous to the client in the future. If you are a State licensee, or have any potential for applying for such license, it would not be sound to pursue a Petition for F.I. unless it was a slam-dunkk. Domestic violence allegations are seldom if ever slam dunk because prosecutors are acutely sensitive to the public policy implications.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.


  2. You can't have a much better set of facts. I'd say you can't get it if you don't try.

    Contributions on AVVO.com in no way create an attorney-client relationship nor are they intended to be relied upon as a course of action without having first consulted directly with an attorney, where the specific facts and circumstances of your case can be fully discussed.


  3. Under the California Labor Code, employers may not consider an arrest that does not lead to a conviction. Having said that, your arrest does exist on your record. The only way to erase something is the petition for factual innocence. The burden is on you to prove your innocence. You will need to fulfill certain requirements (a request on the arresting agency to seal and destroy the records) before you can file your petition. You attach your arrest report to the petition an proceed from there.

    Is it possible? Absolutely. Guaranteed? No. Hardly anything in criminal law is. You should disuss this in depth with your (or another) attorney face to face.

    The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case.


  4. A finding a factual innocence, which is what you are attempted are difficult to win. If you are looking for a guarantee to win, you won't find it. Your lawyer is in the best position to evaluate your case. If you want a second opinion go hire a 2nd attorney.

    The above information does not establish an attorney client relationship nor is it meant to provide legal advice.


  5. If not successful, you can attempt to secure a finding of factual innocence.

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