Seal Arrest Records in California

Background checks are commonly used for pre-employment screening, firearm sales, international travel and school volunteers, among other things.  Incomplete or inaccurate arrest records aren't only embarrassing, they can lead to the loss of important opportunities.  Luckily, California offers a few different options to correct, amend, seal or destroy some of those records.  

I've previously written about expungements and 17(b) reductions here.  If you were convicted of a crime in California, there are some options available to reduce or dismiss charges after you successfully complete a term of probation.  Some of those options can hide some records from some people.  It's complicated, but read those posts if you're interested in cleaning up old criminal convictions. 

Today, I want to talk about something different.  This post is specifically about ARREST records, how inaccurate or incomplete records can haunt you for a long time, and how to reduce or eliminate some of those consequences. 

LiveScan Background Checks

When someone submits to a LiveScan background check in California, his or her fingerprints are run though a database at the California Department of Justice in Sacramento.  Those fingerprints are analyzed by computers and compared to the prints of everyone who has ever been arrested and / or convicted for any crime in the state.

Once the analysis is complete, the Dept of Justice produces a report of the subject's complete criminal history in a document called a "RAPS Sheet".  "RAPS" stands for "Record of Arrests and Prosecutions".  As it's name implies, the RAPS sheet contains some very basic data about the subject's history of arrests, charges filed, dates of convictions, level of offenses (felonies or misdemeanors), and sentences imposed. 

Errors

Sometimes, a RAPS sheet contains an error.  Maybe a conviction shows up as a felony, but you clearly remember that it was reduced to a misdemeanor.  

Errors are easy to fix, and they don't usually require a lawyer.  Simply fill out the "Claim of Error or Omission" form that is included with every criminal history report.  Provide as much information as you have and send it back to the Department of Justice at the address listed on the form.  

If it's possible, you should also reach out to the attorney who represented you in the case, even if that's the Public Defender.  Ask if they have any of your old records that you can use to support your claim of inaccuracy.  

Once the Dept of Justice receives your claim, they will perform their own investigation.  They will reach out to the court and the DA for any available records or transcripts.  If investigators need anything else from you, they will contact you by mail.  

"Phantom Arrests"

A more common, and more complicated problem arises when a RAPS Sheet shows an arrest, but no corresponding court case.  

Maybe the report shows that the subject was once arrested for something like "making a criminal threat" (PC 422), but there's no information about what happened after that.  The report does not indicate whether or not the person was ever charged or convicted, or what type of sentence was imposed.  

If the subject was eventually convicted based on this arrest, "making a criminal threat" can mean a lot of things.  422 can be treated as a serious felony (AKA a "strike") in some cases.  It can also be a misdemeanor.  A lot of the time, it can even be pleaded down to a simple infraction, like "disturbing the peace" (PC 415).  A 422 arrest on a RAPS sheet is going to lead to some questions, and any hiring manager is going to want answers.  

The most likely explanation for a "phantom arrest" is that the case was never filed.  The subject was arrested and held in jail over night, a prosecutor looked at the case, and decided not to file charges for whatever reason.  Maybe the evidence was weak, or maybe the police sincerely arrested the wrong guy.   The subject was released, and that's all that ever happened.  He was never convicted of any crime because he never went to court, and he never went to court because he was never actually charged with a crime in the first place.  

Without some indication of how this arrest was resolved, though, the HR manager (or gun store clerk, or customs officer, or school principal) who requested the background check is on notice of some major red flag.  And now someone's life is on hold until we can sort this out.  

"Detention" vs. "Arrest"

If a person is taken to jail in California, but never charged with a crime, that person can honestly state that he has "never been arrested".  That's because of section 849.5 of the California Penal Code, which says, "In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense...the arrest shall not be deemed an arrest, but a detention only."

If your criminal history report shows a "phantom arrest" and you were never charged with any crime, you are entitled to fix the record, so that it shows "***DETENTION ONLY PER 849.5***"  You are also entitled to receive a letter from the agency that arrested you, stating, "You were detained and not arrested on this date".  These letters are usually called "Certificates of Release".  

Updating your record to include the "849.5" notation can help clear up a lot of confusion.  That simple note makes the report more coherent by showing that every arrest is accounted for with some corresponding disposition.  Without it, a RAPS sheet is incomplete and a background check may come back with inconclusive findings.  

If you recently submitted to a background check and you were told that the results were "delayed" or "inconclusive", call us to discuss your options.  

Sealing Arrest Records

If your arrest did not result in a conviction, you are entitled to seal the records related to your arrest.  

This includes situations where the DA declined to file charges (the situation described above), where charges were filed but later dismissed, or where the defendant was found "not guilty" at trial.  It even includes cases where the defendant successfully completed "diversion" or "deferred entry of judgment" to earn a dismissal. 

Sealed arrest records are not available to the public, but can still be accessed by shared by law enforcement agencies, including the Department of Justice.  Just as above, a sealed record will include a notation, stating that the subject was "detained only" and not "arrested", and that the records should not be shared outside of law enforcement.  

Destroying Arrest Records

If a defendant can prove that he or she is "factually innocent" of the charges that the arrest was based on, they can petition the court to destroy any records related to the arrest.  

"Factual innocence" is a high bar for the applicant to overcome, though.  It's not enough to simply be "not guilty" of the crime.  To be factually innocent, the defendant has to prove that there is no reason to believe that he or she committed the crime.  That usually means proving that he was victim of identity theft, he was framed, or some extraordinary situation like that.  

Records that are destroyed are not even available to law enforcement agencies -- they are completely erased.

If you or a loved one has questions about your criminal history report, or if inaccuracies in your RAPS are causing delayed or inconclusive background checks, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Orange County Expungement Lawyer

What Does the Supreme Court's New Gun Case Mean for California?

The US Supreme Court delivered a bombshell last week in the case of The New York State Rifle & Pistol Association v. Bruen (or simply "Bruen").  Six of the Court's nine justices voted to strike down a 100-year-old New York law that generally prohibited carrying firearms outside of the home.  Previously, the state had granted "concealed carry" licenses only to applicants who could demonstrate some exceptional need for protection, beyond ordinary self-defense.  The Court found this restriction to be unconstitutionally onerous, declaring for the first time that individuals do not shed their Second Amendment rights when they step outside.  

Effectively, the Court announced that states must provide some legal means for law-abiding individuals to defend themselves with weapons outside of the home.  

Until now, the Court had always analyzed Second Amendment challenges by applying a test called "intermediate scrutiny".  Under intermediate scrutiny, judges try to determine the constitutionality of a law by performing a legal balancing act, weighing the interests of the government against the individual.  If the state has some important public policy objective in mind (e.g. "safety"), and the law at issue is closely related to achieving that goal, then the law is generally upheld.  

Applying the intermediate scrutiny test, courts have allowed laws to stand which limit the number of rounds that a firearm can hold, prohibit popular makes and models of weapons, and that ban common features, like detachable magazines.  California appellate courts have ruled that all of these restrictions are supported by important state interests that outweigh any legitimate needs of the people.  

In Bruen, though, the Supreme Court announced a new test for analyzing Second Amendment challenges.  Rather than applying intermediate scrutiny and weighing the interests of the government against the people, courts are now directed to apply a "historical analogy" test.  Under the new test, judges must try to determine whether a particular law is "historically analogous" to some other law that was generally accepted at the time at the time of the Constitution's adoption -- "Did this particular restriction exist at the time of the founding?  Would the Framers have thought that it was acceptable?".  Keep in mind that the Framers had cannons. 

This new test is a gamechanger for a lot of California laws.  CA has some of the most complicated, restrictive gun regulations in the country.  Last week, the Supreme Court gave some indications that Bruen is just the tip of the iceberg for California gun control.  The high court vacated a number of California appellate court decisions that had previously addressed Second Amendment-related issues.  It sent those cases back to the lower courts with instructions to apply the new Bruen rule.  The remanded cases involve California's concealed weapon licensing scheme, restrictions on "high capacity" magazines, and the state's ban on "assault weapons".  

It will be really interesting to see how (if at all) this new ruling also affects California's non-firearm-related weapons laws.  As I've previously discussed here, California has some goofy rules about carrying weapons in public.  You can carry a machete on your belt, for instance, but you cannot carry a 3-inch fixed blade if it's concealed on your body (but it's OK to keep a fixed blade concealed under the driver's seat of your car).  You can carry a concealed folding knife that's 3 feet long, as long as it isn't open and locked into position while it's concealed.  You can keep an unloaded shotgun in your trunk, but you cannot carry a baseball bat.  See what I mean?  These rules are probably not consistent with the court's new "historical analogy" test.  

There are still a lot of unanswered questions, and there will be plenty of litigation to work them all out.  In the meantime, CA is frantically trying to adopt a new regulatory scheme for issuing concealed weapons permits that will pass constitutional muster.  They still plan to interview applicants and to require that licensees complete an approved training course.  Some state legislators have already proposed throwing up regulatory road blocks, like excessive fees, to deter applicants.  

If you or a loved one has questions about weapons in California, call us for a free attorney consultation. (714) 449-3335.  Ask for John.  

We also have extensive experience in helping clients restore gun rights.  Many disqualifying charges in California can be reduced or dismissed after the defendant completes probation.  Depending on the circumstances, earning a reduction or dismissal may restore a person's right to purchase firearms.  

Fight a Fishing Ticket in Catalina Island Court

Catalina Island, located about 23 miles off the coast of Los Angeles, is home to a tiny, 1-room courthouse.  The building is only open on alternating Fridays to hear misdemeanor cases that arise on and around the island.  

We've been the #1 firm serving Catalina Island for about 10 years now.  In that time, the most common charges we've seen include things like drunk in public, battery, shoplifting, possession of drugs & drug paraphernalia, domestic violence, DUI (including a lot of golf cart DUIs), and of course, every fishing violation in the book.  

Gascon Changed Everything...

Since the voters of Los Angeles County elected George Gascon as District Attorney in 2020, law enforcement priorities have changed noticeably.  As a "progressive DA", Gascon immediately directed his prosecutors to ignore most low-level "quality of life" offenses that disproportionately affected the homeless and low-income Angelinos.  Suddenly, prosecutors were forbidden from filing charges in many non-violent misdemeanor situations.  The kinds of offenses that used to earn a year of probation and a little community service are now completely ignored by the Los Angeles County District Attorney's Office.

Gascon justified his lenient new policies as necessary to end the cycle of poverty that keeps low-income offenders on the streets and prevents them from finding steady employment and housing.  He argued that harsh police practices had historically bred distrust between minority communities and law-enforcement.  The only way to restore that trust, he concluded, was to simply ignore most crimes.  

Ironically, Gascon's "hands-off" approach to law enforcement has had the most glaring impact in the affluent enclave of Avalon, where an 800 square-foot bungalow can sell for nearly a million dollars.  Catalina does not have a homeless population, but the DA still forbids his deputies from pursuing charges in most low-level offenses that arise on the island.  There are plenty of exceptions, but the total number of cases filed in Catalina has taken a nose-dive since the new DA took office.  

...Except Fishing.

One notable area that has not been affected by Gascon's directive is fishing violations.  Wardens from the Department of Fish & Wildlife continue to aggressively patrol the waters around Catalina, and the DA still pursues these cases with vigor.  

The region is popular with both commercial and recreational anglers, and the California Code of Regulations can be a minefield for the uninitiated.  The island's coastline is a checkerboard of "marine life protected areas", where fishing is strictly prohibited.  The areas are not marked by any signs or buoys; it is the angler's responsibility to use a reliable map and GPS system and to avoid accidentally drifting into one of these traps.  Wardens also regularly board vessels to inspect catches, licenses and logbooks.  They're not in the business of giving warnings.  

If you are cited for some misdemeanor fishing violation near the island, wardens will assign you a court date at the Avalon Courthouse.  You must personally appear in court on that date, unless you are represented by a private attorney.  Private counsel can appear on behalf of our clients in most cases.  

The first court appearance is called the "arraignment".  This is the stage where the prosecutor formally notifies the defendant of the charge.  The defense attorney receives a copy of the warden's report and any evidence that was collected during the investigation.  The attorney enters a "not guilty" plea on behalf of the defendant, and further court appearances are scheduled.  

Between the first and second appearances, the attorney will meet with the client to review the report, the evidence, and a defense strategy.  At the next court appearance, the attorney should be prepared to sit down with the prosecutor and to discuss the case, including some proposed disposition (e.g., "This case is weak and should be dismissed", or "OK, I see what you have here.  My client is willing to pay a small fine", etc.). 

We Can Help

No law firm has more experience than us when it comes to defending cases on Catalina Island.  Other lawyers advertise that they cover Catalina, but they usually hire me to make their appearances for them.  We know how things work on the island and we know how to get the best results possible for our clients.  

If you or a loved one has been cited or arrested on Catalina Island, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Catalina Island Lawyer

Big Changes Coming for California DUI Laws

The California Court of Appeal delivered a bombshell ruling to the DMV last week.  This could be a gamechanger for any attorney who practices DUI defense, and to anyone arrested on suspicion of DUI in California.  To understand the magnitude of this ruling, let me first give a little bit of background.

Under California law, the DMV must automatically suspend the driver's license of any person who is arrested on suspicion of DUI.  That suspension goes into effect before the driver is convicted of any wrongdoing in court.  

If a driver wants to challenge this automatic suspension of his license, he must contact the DMV within 10 days of his arrest and demand a hearing (called an "Administrative Per Se" hearing, or an "APS" for short).  At the APS, a DMV hearing officer will review the police report and any evidence collected during the arrest.  The issues are limited to: 1) Did the officer have reasonable suspicion to believe that the driver was operating a vehicle while under the influence of alcohol? 2) Was the driver lawfully arrested?, and 3) Did the driver submit to a chemical test of his breath or blood with a result of 0.08% or greater?  If the answer to all 3 of those questions is "yes", then the DMV will suspend the defendant's license, regardless of the outcome of any court proceedings.  

Notice that the DMV is not interested in whether or not the defendant is actually guilty of DUI.  They are strictly trying to decide whether or not the officer was acting reasonably at the time he arrested the subject on suspicion of DUI.  Being arrested on suspicion of DUI is enough to lose your license in California.  

But that's not the worst part.  The thing that really unfairly stacks the deck against defendants in APS hearings is the fact that the DMV hearing officer serves several roles simultaneously.  He or she acts as the prosecutor who presents evidence against the defendant, AND as the judge who determines which evidence should be admissible, AND as the jury who ultimately decides whether or not the prosecutor (him or herself) has carried the burden of proof.  Even a Russian gymnastics judge would say, "That doesn't smell right."

The Court of Appeal finally stepped in last week and ruled in favor of the California DUI Lawyers Association in their suit against the DMV.  It determined that the practice of using hearing officers as both advocates and as triers of fact violates the principles of due process and fundamental fairness.  The DMV is prohibited from doing so in the future.  

The DMV has rescheduled all APS hearings until new procedures can be implemented and adopted.  Stay tuned to see what comes out of this.  I predict that the DMV will now assign two officers to each APS hearing -- one as a prosecutor and one as a judge / jury.  The court did not specifically rule that the same agency couldn't serve both roles, only that the same officer could not do so.  

This a baby step towards fairness in California DUI laws, but I'd still like to keep the box-checking bureaucrats at the DMV out of the process entirely.  

If you or a loved one has questions about DUI laws in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Orange County DUI Lawyer