Factual Innocence 851.8 Signed by Pd and Sent to Doj

[mannuk]

My question involves criminal records for the state of: CA

I was arrested in Feb 2016 because of a misdemeanor but charges were never filed. I petitioned the local law enforcement who made the arrest for factual innocence in Oct 2017. It was approved and sent to DOJ the same day. I checked the DOJ rap sheet and no longer have my finger prints (through live-scan service). I went to the local police to ask when they will seal and destroy my records. They said they need a court order to do so. I stopped by the court multiple times but the clerk doesn't know the procedure. I'd like to ask the following:

1) What else needs to be done after factual innocence approval to seal and destroy my records in ALL agencies?
2) What should I state on DS-160 regarding previous arrests? I know I can legally say I was never arrested on employment and background check applications but not sure about immigration.
3) What documents does immigration (port of entry, H-1B, green card etc) need for my factual innocence? I only have the signed factual innocence document and nothing else.

Thank you so much.

[cdwjava]

You will have to petition the Superior Court of jurisdiction in order to obtain a court order. If you do not know the specific procedure, you may want to enlist the aid of an attorney.

http://leginfo.legislature.ca.gov/fa...8.&lawCode=PEN

This court order should be served on all local agencies and CA DOJ, you may have to provide copies to any and all other parties - including the feds.

[LegalWriter]

The answer is right in the statute itself: "(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 the petition shall be served upon the prosecuting attorney of the county or city 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 prosecuting 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.

[mannuk]

The petition has been approved and sent to DOJ. But the police department is saying they can't seal/destroy the records without a court order. I am not sure how to proceed in this particular case to get the required court order.

[LegalWriter]

The records are sealed and will be destroyed in 3 years. It's clearly laid out in the statute. Sealed records are not available in the meantime.

[cdwjava]

Unfortunately, law enforcement agencies tend to be very uncomfortable with purging (i.e. destroying) records without a court order. If the DA did not also concur with the agency's apparent lack of opposition to the petition, then that delays things. In my experience as a Records Manager, it is exceedingly rare for an agency to agree to purge an arrest record without a court order - they tend to like the clarity of such things. While it SEEMS as if the OP may have gotten agreement by the agency, it is not clear that the DA also signed off on this. Though, why the petition would be sent to the DOJ if it had not been approved by both the agency and the DA would be a head scratcher. It may simply be that @mannuk has not spoken to the proper responsible person at the agency and the records may already be sealed pending destruction.

[LegalWriter]

If he didn't serve a copy of the petition to the DA's office, then he didn't do it right to begin with. Under the statute, if the DA agrees, then the DOJ is notified that the arrest has been sealed AND the reason. If they notified DOJ, then the arrest has to have been sealed because that's what's sworn to on the form sent to DOJ.