Friday, June 22, 2012

I'm FREE!

Everything is easier once you know howDo you know what the odds are of being hit with lightning twice in one day?  Do you!?  Well, it has happened to me on Monday, last.  I had two people come into the law library asking the same question with virtually the same fact pattern.  What are the chances of that?!?!  As turns out, pretty good.

First set of facts.  Let's say Person "A" gets arrested and charged with a crime, is arraigned, and gets up to the point of going to trial and the District Attorney (DA) decides not to prosecute (i.e. go to trial).  So, there's no judgement, no probation, no nothing else and Person A is left hanging in legal limbo hoping the DA will just forget about them but getting stuck with that sickly feeling in the back of their head that someone is going to lower the boom on them sometime in the future.  It's enough to give anyone an ulcer!

Second set of facts.  Let's say Person "B" is never arrested, never arraigned, never anything - and then one day they finds out they were added as a defendant in a criminal case but then, again, Person B was never prosecuted (i.e. no trial, no probation, no anything).


The question here is, what the heck can Person A or Person B do to clear their rap sheet. See, the problem is on job applications, there is a question that says, "Have you ever been arrested or charged with a crime?" If you say "YES," you can say good-bye to that job.  If you say "NO," a quick background check and you're fired.  So, what can you do to clear your record forever?

Well, this is what the Department of Justice (DOJ) for the state of California had to say: What you need to do is:

  1. Go to the superior court/arresting authority where the matter occured, and;
  2. File a Penal Code (PC) 851.8 motion to Seal and Destroy the Record.
This is not an expungement (PC 1203.4). An expungement seals (no, not Navy Seals) Navy Seals see you when you're sleeping the record and deals with those situations where the person was tried, convicted, and was incarcerated or granted probation. Merely sealing a record does not make it go away and the DOJ still has a record of you.  A PC 851.8 motion, on the other hand, seals AND destroys the record so that it literally ceases to exist.  No existance means you Sword of Damocles can answer "NO" on a job application. It means that the Sword of Damocles is no longer hanging over your head.  Is that cool or what?!? Well, I think it's pretty cool. To see how Penal Code 851.8 reads, run a search under the Unannotated California Codes.

Anyway, I just thought this was cool seven ways from Sunday and wanted you all to know that even if you don't think you'll ever need to use a law library (or a law librarian), we'll be here when you do.