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Arrested but NOT charged. Recently filed a petition to seal/destroy record, but it was denied. What should I do next?

Fremont, CA |

Over 4 years ago, I was 19, I was arrested for statutory rape. She was my girlfriend, she was then 16. It started as a highschool romance, we went to the same highschool together, rode the bus together, and we had been seeing each other for about a year leading to the arrest. They also lived a block away. I showed up in court but DA did not file charges due to "lack of sufficient evidence". Recently I learned that I could file a petition to seal/destroy the arrest record, I filed it, but it was denied. This arrest had prevented me from my desire to join the military a few years ago, had tormented and stopped me from getting a job and moving on with my life, and had greatly affected my parents as well. Do I have any other recourse in order to seal/destroy the arrest record?

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Attorney answers 4


If you filed it and it was denied, what were the reasons given for the denial? Sometimes if you do these things yourself, you don't serve the proper parties; otherwise, the DA might file an objection - did they? More information is needed. You can always appeal, but that is a long and expensive process. I'm not sure why an arrest, with no conviction, would keep you out of the military, FYI.

Mr. Feasel is a former prosecutor in San Mateo County (CA) with over 10 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. Feasel to further investigate your situation, feel free to contact him thru this site.



No reason was stated for the denial. And there was no objection by the DA either.


Your experience illustrates the hidden downside and risks of these Petition for Factual Innocence proceedings. Before you brought this petition, there was no body of evidence about the allegations against you -- just a few routine court documents that added up to "no case." Now there is a transcript of facts and evidence available and a judicial determination denying your claim of factual innocence. You are worse off for some important purposes than before you made this effort. State licensing is one example of one circumstance where the collected evidence and judicial determination of this petition can hurt you in the future where the unprosecuted case could not.

No one should pursue a Petition for Factual Innocence unless winning is fully and certainly predictable. That usually means that no one should bring a Petition for F.I. if the DA is going to oppose. That means you need an attorney to work a deal before you take it into court.

Appealing successfully is a very remote long shot. Talk with some very reputable and experienced appellate attorneys before you throw that kind of money at what is probably already irrevocably snake-bit.

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This is a complicated question. It is important for you to discuss this matter with you attorney before you lose any rights you may have.

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I agree with the response given by Attorney Feasel. If you filed the petition on your own, without the assistance of a lawyer, the court may have denied it based on a procedural mistake, i.e. lack of notice to all of the parties. If you had a hearing and it was denied because the court found you did not meet your burden of proof, then appeal would be your only recourse - if you have not missed the deadline to file an appeal. You could consult with an attorney to find out why it was denied, and then make a decision as to how to proceed. Before spending any money to do so, though, you may want to confirm that this will really keep you out of the military, or affect your employment opportunities,given that it is an arrest and not a conviction.

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