Criminal Defense Q&A: The D.A. Opposed My Petition to Seal My Arrest Record, But Cited the Wrong Law! What Can I Do?
Question:
I need help with a sealing arrest petition under the new PC 851.91 without a conviction for a loitering charge. The DA filed opposition, and I thought I could do this alone; maybe I still can. I filed a petition for relief under PC 851. 91 in a criminal matter using a self-help guide. This is a new law under SB 393 to seal arrest without a conviction. This specifically was for a trespass arrest 4 years ago. No charges were filed, and that was my only brush with law. The DA filed an opposition with what appears to be a boiler plate memo addressing “factual innocence” under “PC 851.8”? They totally are NOT even addressing the correct statute listed on my petition and essentially are saying I need to show factual innocence. My petition was clear and concise. Now that I am down the rabbit hole, are there any suggestions please? Can I call the DA and discuss?
Answer:
You are correct about the law.
In California, there are now two ways to seal the record of an arrest that did not result in a conviction: (1) by obtaining a finding of Factual Innocence; and (2) by sealing the arrest record via a new law, also known as the Consumer Arrest Record Equity (“C.A.R.E.”) Act, which took effect on January 1st, 2018.
If you’re eligible under the C.A.R.E. Act, then no additional hearing will be necessary unless the prosecutor disputes your eligibility. Valid reasons to contest your eligibility include: the statute of limitations has not expired on your underlying offense; you were arrested for a disqualifying offense such as murder; or your underlying offense was for domestic violence, child abuse, or elder abuse, and your criminal history reflects a pattern of such behavior.
From what you’ve described, there does not appear to be any such red flag in this instance.,
Government agencies are sometimes slow to adopt new laws, especially when such laws are rolled out with little fanfare. That may explain why the DA’s opposition memo addresses your concern (i.e., sealing your arrest record), but not the specific statute that you’re invoking.
Since the Court is the one that has the authority to grant your petition, it is the Court, and not necessarily the D.A., that must be persuaded. You could, on the day of the hearing, explain to the Court that there is now a second way, authorized by statute, to seal one’s arrest record. But you may meet some resistance if the Court is not yet familiar with this new law.
A better approach would be to submit something in writing to the Court explaining the new law and why you’re eligible. Doing so will allow the Court to familiarize itself with the C.A.R.E. Act and your case before the hearing. The D.A.’s opposition memo may be neutralized if the Court is able to make up its mind before the hearing.
You can write the document yourself. Or, to maximize your chances, you can retain an attorney in your area to help you draft the document and even represent you at the hearing.
A copy of the document should also be provided to the D.A. If the D.A. can recognize its mistake, it may be inclined to change its mind and withdraw its opposition to your petition.
Read other criminal defense attorney answers at Avvo: The D.A. Opposed My Petition to Seal My Arrest Record, But Cited the Wrong Law! What Can I Do?
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
