Ten Steps to Sanitize Your California Arrest Record

Brian Richard Dinday

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Criminal Defense Attorney

Contributor Level 16

Posted almost 5 years ago. 22 helpful votes

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1

Recognize that you have a "criminal record" problem.

This guide is for people who got arrested but not convicted, and now find that the arrest record haunts their personal lives and careers. You certainly don't have to have committed a crime to have a "criminal record." Many people find that they lose jobs or cannot compete in today's tight job market with any kind of arrest record. It will not matter that the arrestee was innocent, once employers learn he or she was arrested for child porn, wife beating, theft, or drugs. There are also social consequences of an arrest, such as when your prospective in-laws find out a prior girl friend had you arrested for pushing her, or your church checks on your history before letting you work with the youth group. This guide can be of help if you got arrested and the District Attorney saw through the false or mistaken arrest and didn't file charges; if you got arrested and charges were filed and dismissed; or if you got arrested, charged and were found not guilty at trial.

2

Understand that just because you have no convictions, does not protect you from job discrimination or other punishment by society.

Employers today are very sensitive to potential liability arising out of gender and racial discrimination, violence, drug use, and sexual misconduct. They may be scared witless by the thought of hiring someone who was accused of attacking women, using drugs, stealing, or misconduct involving children. What employer wants to spend its time afraid that an employee will put child pornography on company hard drives? Or drive the company delivery truck while stoned on meth? You get the picture. Employers protect themselves by asking applicants whether they have been convicted of a felony (which is permitted), and then get permission to obtain a criminal history from the California Dept.of Justice. That printout contains all arrests, innocent or not. It's illegal to discriminate due to a mere arrest, but then good luck proving you were not hired because of a mere arrest.

3

Find out exactly what is on your California Dept. of Justice criminal history record.

This is quite easy and well worth the $25.00. Go to the Dept. of Justice web site at http://www.ag.ca.gov/fingerprints/security.php, fill out the application, pay the fee, and then go to a police agency that does "Live Scan" work. This is an electronic finger print process. Then in a few weeks D.O.J. sends you your criminal history. Normally, anything that would show up on a local police agency criminal record, will be transmitted to D.O.J. as well. However, if for any reason you suspect you might have a history that was not given to the State, it might be wise to also request a criminal record check from the local police agency too. If nothing shows up, then nothing is likely to show up when an employer does a background check, because it is the D.O.J. they will check with. Sometimes it is not clear whether an interaction with police was an "arrest" or just a "detention" (which normally would not be entered into the D.O.J. system.

4

If your "Live Scan" check comes up clean, probably you are safe.

A clean "Live Scan" means that probably your prospective or current employer will find nothing when they check your criminal history. One exception: those pesky Feds. Some employers, especially Federal Agencies, firms that contract with the Federal Government, and many other large civilian firms, will also check your F.B.I. criminal history. So will many professional licensing agencies (C.P.A., attorney, private investigator, securities broker, etc.) The F.B.I. records will record every arrest as well as every time you got fingerprinted (licensing, military, police or other government employment). So it is possible for someone to have an F.B.I. "Arrest" or record entry that never passed through the State law enforcement database, especially if you got contacted or arrested by Federal Officers and local police never assisted in the investigation. When in doubt, check them all.

5

Get a lawyer.

I realize that this point may sound self serving: a lawyer telling you that you need to hire a lawyer, but the truth is: a PFI is an extremely complex petition legally and factually. Most lawyers and judges don't even understand them. It is no exaggeration that you must get not just a lawyer, but a highly experienced lawyer to do your PFI. If you don't, you may encounter both a judge and a Prosecutor telling you that your petition must be denied because the police did have probable cause to arrest you at the time. Problem is: that is not the legal test. The true standard is that the judge should deny your petition unless at the time of the court hearing "no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." Why would a judge lie to you? He wouldn't. There are two (erroneous) reported appellate cases that give the wrong test, believe it or not. I told you it was complicated.

6

If you do have an arrest record, you can apply for a "Factual Innocence" finding.

Note: This procedure applies for a "detention" as well as an arrest. Secure a copy of the arresting agency's police report of your "arrest" detention, or the incident. Get this from your defense attorney or public defender, or from the police agency itself. The broadest statute covering such applications is California Penal Code Section 851.8, which applies to any and all felony and misdemeanor charges for which you were arrested or detained, but not convicted. If the D.A. did not file charges, you have to first petition to the arresting police agency to declare you "factually innocent." If granted, they seal their arrest records until three years after the arrest and then destroy all such records. If they deny your petition, you can then file your petition with the court. If they ignore your petition (most likely), you are supposed to wait until two months after the expiration of the statute of limitations, and then file with the court.

7

If the Prosecutor did file charges against you, then petition directly to the Court.

If the D.A. filed criminal charges but you got a dismissal or an acquittal, (found not guilty), then file a Petition for Factual Innocence (PFI) with the Court, as soon as dismissed or acquitted. There is no need to wait in this case. You can prove "good cause" to the judge why he should excuse any failure to comply with the statute's time restrictions for filing for relief. (Section 851.8 (L).). The statute requires normally that you file within two years of the arrest.

8

What happens at the Court hearing on a PFI?

It is usually decided on the papers that were filed, but you can also produce live witness testimony at the court hearing. The papers your lawyer files can contain all kinds of evidence that would not be admissible in a trial or most other court hearings. Letters from witnesses or experts, police reports, personal employment or medical records, statements from the alleged victim (who is often an excellent witness for the petitioner), and all other manner of "relevant, reliable and material" evidence may be submitted. These are the most liberal rules for admissible evidence in existence for any court hearing, so you and your lawyer should take advantage of them. If all things considered, the judge believes no reasonable person would think you guilty, you win. If not, you lose.

9

If I win the Petition for Factual Innocence, what happens then?

Wonderful things. The judge will order all the police agencies to seal their arrest records and the police reports, so nobody can see them without a court order. The California Dept. Of Justice and everyone to whom they gave copies of your arrest records have to seal their records. The Court clerk must seal the Court's own files and the order adjudging you factual innocent itself has to be sealed, along with even the D.A.'s files on your case. Then, three years after the date of your arrest, they all have to physically destroy all those records, including all public indexing to them, and including deleting all the data from the law enforcement computers. There will be no physical records left of your arrest, your prosecution or any court proceedings.

10

But after my false arrest for domestic violence, my wife also got a Family Court E.P.O.

That has long been a sticking point. The court files that are sealed and destroyed have never before included Family Court Emergency Protective Order (E.P.O.) court records. But in April of 2009, the San Francisco Superior Court did issue such an order. That E.P.O. file contained all the same false accusations of domestic violence that the Court had already ruled were false accusations in its Factual Innocence Order, and now that EPO Court file has been ordered sealed and destroyed as well. That is as it should be, since that Court file is a public record that is indexed to the accused person's last name. There is little point in sealing and destroying the criminal court file and then leaving the same accusations open to total public inspection in the Family Court File. Now there is a way to truly clear the innocent arrestee's full public record.

Additional Resources

For further information on Expungements

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