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Will a 12 year arrest record prevent someone to work in the law enforcement field? Or on any government office?

Montebello, CA |

charge(s) PC 288.5 / PC 32 - There were no criminal charges filed. Arrest was on a adult.

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Attorney answers 3

Posted

Although 288.5 is a serious offense, you stated that no criminal charges were filed. Since no criminal charges were filed, the arrest itself should not prevent a person from working in law enforcement or government office.

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Posted

It is possible to file a petition under PC 851.8 to seal your arrest records. Even though the arrest shouldn't affect employment, once you get a chance to explain what happened (or didn't happen), it may show up on background checks. An 851.8 petition can get the matter sealed completely. Consult a local attorney who has expertise with sealing records.

Christine C McCall

Christine C McCall

Posted

Respectfully, the FBI will not implement state court remedies by changes in the FBI's database. I have never seen an 851.8 order cause any change in the FBI database other than an additional entry re the granting of the Petition. The FBI does not seal, delete, erase, etc. Even if this jurisdictional conflict could be resolved (and Congress may do that at some point), all POST-certified employment applications cause an FBI report.

Nadezhda M Habinek

Nadezhda M Habinek

Posted

That is a well-taken point and I left it out my answer. I completely agree. Applying for many government jobs opens your entire history. However I have heard (anecdotally) from other attorneys that, after the 851.8, an individual can get a "detention certificate" from the arresting agency. This certficicate says the person is not considered arrested for the offense, but rather "detained for investigation." The DOJ is noticed to amend the rap sheet, too. Apparently this has been successful in, at least, changing the record from "arrested" to "detained" in DOJ's report. Look at Penal Code secs. 851.6, 849, and 849.5.

Christine C McCall

Christine C McCall

Posted

I am fully experienced with the statutes you cite. But these remedies don't "change" the DoJ report, they only add to it. Fair enough and perhaps sufficient for many purposes. But this kind of remedy doesn't suffice for law enforcement applicants because no law enforcement agency will rely on the reported record for pre-employment investigations. All incidents -- arrests, convictions, infractions, detentions, law suits, restraining orders -- ALL incidents are investigated if the candidate's application survives that far in the selection process, and the agency relies on the underlying facts determined by the investigation -- not on the label or classification used by any reporting agency, including the state and federal governments. This is uniform practice in U.S law enforcement because all jurisdictions have sought the federal funds tied to POST-certification and standards.

Posted

All applications for law enforcement and POST-certified employment will cause access to your state Dept of Justice (Live Scan) report and your FBI record and both of those will show the arrest. It is important to know that law enforcement employment can be denied for improper conduct, not just for convictions or arrests. So, what really matters is the underlying facts and circumstances, not just the official record.

In almost every jurisdiction, applicants for law enforcement positions must as a part of the application give consent for a very searching background investigation that reaches behind the entries reported on the official records and reveals the underlying facts and circumstances of the matter. Even were such consent not required (and virtually every jurisdiction requires it), California statutory measures for cleaning up a criminal history record explicitly carve out an exception to the statutory relief in the event of pre-employment investigation for a law enforcement position. In short, it is doubtful that statutory remedies to clean up your record re the arrest will cause any practical benefit to you for this specific objective. (That is not to say that such remedies would not be worthwhile for another reason or just on general principles.)

All that said, the upside is that the pre-employment investigation by law enforcement agencies is real legitimate professional investigation. Of course, that benefit applies only if your application is sufficiently competitive on the other bases that you are still in the mix by the stage of pre-employment investigation and clearance (not every application is investigated, of course). If you can demonstrate as a matter of fact that there was no misconduct by you underlying the arrest, then you will not be disqualified simply by the fact of the arrest. Of course, "not disqualified" is not the same as "hired," as many other factors will be considered and hiring for law enforcement positions is terribly competitive right now and at very low levels almost everywhere.

Best of luck.

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