Sunday, January 25, 2015

Wipe it clean

YOU are under arrest
Picture it.  You're sitting by yourself in your car listening to a classical radio station.  No drugs (are present), you are wide awake, and all of a sudden a dozen police officers come out of nowhere, guns drawn and demand that you exit your vehicle (happens more often than you might think).  Anyway, not wanting to make a scene, you comply and are promptly thrown to the ground and handcuffed.  No "howdi do?" or anything - just asphalt to the face and cuffed.

Next day (after sitting in jail all night) you are released.  No charges, no prosecution.  Problem is, there is a record of your arrest on file somewhere so when next you are out looking for a job and the application says, "have you ever been arrested?" you have to say "YES" because if you say "NO" and the potential employer does a background check, out of a job you are.  

So, to summarize: 

  • You were arrested
  • No charges were ever filed and
  • You now have an arrest record

The question is what can you do to remove that record of an arrest from your record?  First, some history. A while back, a Librarian friend of mine who worked in a law firm in the great of Georgia (that's state, not country) was representing someone who had been arrested but never charged in California.  They needed to know how to clean-up his record.  After a few phone calls and not a few emails, I finally hooked up with a fellow at the California Attorney General's Office and he tells me the only way to clean a record (where no charges were brought) is to file a Petition to Seal and Destroy under California Penal Code section 851.8.  

Basically, you need to complete the petition and file it in the jurisdiction where you were arrested. The single best resource I have found that covers all parts of that petition (which includes the petition, declaration, points and authorities, order) is in California Criminal Practice, Motions, Jury Instructions and Sentencing (West; Vol. 5, Ch. 60). 

Yep, life in the legal world can get pretty funky.  Good thing you have county law Librarians who are in the know and know where you can the legal resources you you need to get you back on your feet.