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.
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