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  1. #1
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    Question Expungement of an Arrest Record in California

    I know that an expungement gets rid of all convictions, but does it also erase the arrests? If not, is there a separate process to clean up the arrest record? Also, if the arrest record is expunged, does that guarantee a clean background check?

    Thanks in advance.

  2. #2
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    Default Re: Expungement of arrest record in CA?

    Try this link for more information:

    http://www.courtinfo.ca.gov/selfhelp...imlawclean.htm

    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  3. #3
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    Default Re: Expungement of arrest record in CA?

    thank you for the link.

    my understanding now is as follows: petition for expungement of convictions to get convictions dismissed. if that is granted, file a petition for factual innocence (which is rarely granted, I've read).

    If both are granted, is that as good as a clean arrest record, or is it more like covering up or sealing the arrest record?

  4. #4
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    Default Re: Expungement of arrest record in CA?

    The effects of a dismissal are discussed on that page.

  5. #5
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    Default Re: Expungement of arrest record in CA?

    Quote Quoting aaron
    The effects of a dismissal are discussed on that page.
    that page only has effects of conviction dismissal. i am concerned about arrest records being erased.

  6. #6
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    Default Re: Expungement of arrest record in CA?

    Quote Quoting highflyer408
    that page only has effects of conviction dismissal. i am concerned about arrest records being erased.
    The arrest can be ordered expunged from the CORI files at the CA DOJ, and a judge COULD (but rarely does) order the purging of the arrest by the individual agencies that hold records. However, the court records will remain as I believe courts rarely order the purging of court records.

    Besides, in CA private employers cannot access your state criminal history anyway. But they CAN access court records if you were ever brought to court (arraignment, prelim, etc.).

    You should consult an attorney about how to go about this and if it is even possible.

    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  7. #7
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    Default Re: Expungement of arrest record in California

    That would appear to be controlled by this statute:
    Quote Quoting California Penal Code, Section 851.8.
    (a) In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest. A copy of such petition shall be served upon the district attorney of the county having jurisdiction over the offense. The law enforcement agency having jurisdiction over the offense, upon a determination that the person arrested is factually innocent, shall, with the concurrence of the district attorney, seal its arrest records, and the petition for relief under this section for three years from the date of the arrest and thereafter destroy its arrest records and the petition. The law enforcement agency having jurisdiction over the offense shall notify the Department of Justice, and any law enforcement agency which arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this subdivision, of the sealing of the arrest records and the reason therefor. The Department of Justice and any law enforcement agency so notified shall forthwith seal their records of the arrest and the notice of sealing for three years from the date of the arrest, and thereafter destroy their records of the arrest and the notice of sealing. The law enforcement agency having jurisdiction over the offense and the Department of Justice shall request the destruction of any records of the arrest which they have given to any local, state, or federal agency or to any other person or entity. Each such agency, person, or entity within the State of California receiving such a request shall destroy its records of the arrest and such request, unless otherwise provided in this section.

    (b) If, after receipt by both the law enforcement agency and the district attorney of a petition for relief under subdivision (a), the law enforcement agency and district attorney do not respond to the petition by accepting or denying such petition within 60 days after the running of the relevant statute of limitations or within 60 days after receipt of the petition in cases where the statute of limitations has previously lapsed, then the petition shall be deemed to be denied. In any case where the petition of an arrestee to the law enforcement agency to have an arrest record destroyed is denied, petition may be made to the superior court which would have had territorial jurisdiction over the matter. A copy of such petition shall be served on the district attorney of the county having jurisdiction over the offense at least 10 days prior to the hearing thereon. The district attorney may present evidence to the court at such hearing. 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. In any court hearing to determine the factual innocence of a party, the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. If the court finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made. If the court finds the arrestee to be factually innocent of the charges for which the arrest was made, then the court shall order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency which arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this section to seal their records of the arrest and the court order to seal and destroy such records, for three years from the date of the arrest and thereafter to destroy their records of the arrest and the court order to seal and destroy such records. The court shall also order the law enforcement agency having jurisdiction over the offense and the Department of Justice to request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity. Each state or local agency, person or entity within the State of California receiving such a request shall destroy its records of the arrest and the request to destroy such records, unless otherwise provided in this section. The court shall give to the petitioner a copy of any court order concerning the destruction of the arrest records.

    (c) In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court which dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made. A copy of such petition shall be served on the district attorney of the county in which the accusatory pleading was filed at least 10 days prior to the hearing on the petitioner's factual innocence. The district attorney may present evidence to the court at such hearing. Such hearing shall be conducted as provided in subdivision (b). If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then the court shall grant the relief as provided in subdivision (b).

    (d) In any case where a person has been arrested and an accusatory pleading has been filed, but where no conviction has occurred, the court may, with the concurrence of the district attorney, grant the relief provided in subdivision (b) at the time of the dismissal of the accusatory pleading.

    (e) Whenever any person is acquitted of a charge and it appears to the judge presiding at the trial wherein such acquittal occurred that the defendant was factually innocent of such charge, the judge may grant the relief provided in subdivision (b).

    (f) In any case where a person who has been arrested is granted relief pursuant to subdivision (a) or (b), the law enforcement agency having jurisdiction over the offense or court shall issue a written declaration to the arrestee stating that it is the determination of the law enforcement agency having jurisdiction over the offense or court that the arrestee is factually innocent of the charges for which the person was arrested and that the arrestee is thereby exonerated. Thereafter, the arrest shall be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence.

    (g) The Department of Justice shall furnish forms to be utilized by persons applying for the destruction of their arrest records and for the written declaration that one person was found factually innocent under subdivisions (a) and (b).

    (h) Documentation of arrest records destroyed pursuant to subdivision (a), (b), (c), (d), or (e) which are contained in investigative police reports shall bear the notation "Exonerated" whenever reference is made to the arrestee. The arrestee shall be notified in writing by the law enforcement agency having jurisdiction over the offense of the sealing and destruction of the arrest records pursuant to this section.

    (i) Any finding that an arrestee is factually innocent pursuant to subdivision (a), (b), (c), (d), or (e) shall not be admissible as evidence in any action.

    (j) Destruction of records of arrest pursuant to subdivision (a), (b), (c), (d), or (e) shall be accomplished by permanent obliteration of all entries or notations upon such records pertaining to the arrest, and the record shall be prepared again so that it appears that the arrest never occurred. However, where (1) the only entries on the record pertain to the arrest and (2) the record can be destroyed without necessarily effecting the destruction of other records, then the document constituting the record shall be physically destroyed.

    (k) No records shall be destroyed pursuant to subdivision (a), (b), (c), (d), or (e) if the arrestee or a codefendant has filed a civil action against the peace officers or law enforcement jurisdiction which made the arrest or instituted the prosecution and if the agency which is the custodian of such records has received a certified copy of the complaint in such civil action, until the civil action has been resolved. Any records sealed pursuant to this section by the court in the civil actions, upon a showing of good cause, may be opened and submitted into evidence. The records shall be confidential and shall be available for inspection only by the court, jury, parties, counsel for the parties and any other person authorized by the court. Immediately following the final resolution of the civil action, records subject to subdivision (a), (b), (c), (d), or (e) shall be sealed and destroyed pursuant to subdivision (a), (b), (c), (d), or (e).

    (l) For arrests occurring on or after January 1, 1981, and for accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. Until January 1, 1983, petitioners can file for relief under this section for arrests which occurred or accusatory pleadings which were filed up to five years prior to the effective date of the statute. Any time restrictions on filing for relief under this section may be waived upon a showing of good cause by the petitioner and in the absence of prejudice.

    (m) Any relief which is available to a petitioner under this section for an arrest shall also be available for an arrest which has been deemed to be or described as a detention under Section 849.5 or 851.6.

    (n) The provisions of this section shall not apply to any offense which is classified as an infraction.

    (o)
    (1) The provisions of this section shall be repealed on the effective date of a final judgment based on a claim under the California or United States Constitution holding that evidence which is relevant, reliable, and material may not be considered for purposes of a judicial determination of factual innocence under this section. For purposes of this subdivision, a judgment by the appellate division of a superior court is a final judgment if it is published and if it is not reviewed on appeal by a court of appeal. A judgment of a court of appeal is a final judgment if it is published and if it is not reviewed by the California Supreme Court.

    (2) Any such decision referred to in this subdivision shall be stayed pending appeal.

    (3) If not otherwise appealed by a party to the action, any such decision referred to in this subdivision which is a judgment by the appellate division of the superior court shall be appealed by the Attorney General.
    (p) A judgment of the court under subdivision (b), (c), (d), or (e) is subject to the following appeal path:
    (1) In a felony case, appeal is to the court of appeal.
    (2) In a misdemeanor case, or in a case in which no accusatory pleading was filed, appeal is to the appellate division of the superior court.

  8. #8
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    Default Re: Expungement of arrest record in California

    That would be the one. And it is rarely sought. In my five years with my current department (where, among other things I oversee the records division) we have had precisely zero such orders.

    Also, since most the circumstances (such as a "not guilty" verdict) permit - but do not require - a judge to grant the petition. My guess is that most judges out here do not grant the petition. Generally, I suspect, because they know that it is important to have a record of a history of an individual even if he or she was not found guilty THIS time, for whatever the allegation might be.

    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  9. #9
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    Oct 2006
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    4

    Default Re: Expungement of arrest record in CA?

    Quote Quoting cdwjava
    View Post
    Besides, in CA private employers cannot access your state criminal history anyway. But they CAN access court records if you were ever brought to court (arraignment, prelim, etc.).
    How is that? I was arrested for public intoxication, never had a court date, but paid the fine which amounted to a guilty plea and a conviction. When my company used HireRight to perform a background check on me, it looks like they went down the list of my former addresses from my Experian credit report, and contacted each court to determine if I had a conviction in the several counties I had lived in. So, even though the DOJ may not give out this information to private companies/agencies, apparently the individual courts can and will.

  10. #10
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    Default Re: Expungement of arrest record in CA?

    Quote Quoting alfer
    So, even though the DOJ may not give out this information to private companies/agencies, apparently the individual courts can and will.
    It's just the way it is. Privacy rights advocates have managed to stymie public records access to criminal records by the state of CA, but they cannot get around the over-riding "right to know" that the courts operate under.

    Private firms that collect these public documents are able to pull records going back 7 years. However, that does NOT mean that older matters cannot be found. A decent background investigation would also include conversations with friends, family, former co-workers, etc. Unless NO ONE ever knew about the arrest, it would likely come up.

    Next time, remember to be more forthcoming when you are asked about past arrests.

    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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