Criminal Defense Q&A: I Want to Go to Law School – How Do I Get a Domestic Violence Arrest Off of My Record?
Question:
I was arrested for domestic violence last July, but no charges were pressed. My arrest was later deemed a detention, and I have the letter of detention. I am planning to attend law school in the future and would like this record of detention removed from my record. Can I get a detention on my record expunged by petitioning on my own?
Answer:
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.
Factual Innocence requires you to first petition the police department that arrested you and the District Attorney, wait for their response (which can take up to 60 days), and then petition the Court if necessary. Factual Innocence means that police had no good reason to have even suspected you of having committed a crime. It is a very difficult thing to prove and the burden is on you to establish it. Penal Code 851.8(a), (b),(m).
But if you are deemed Factually Innocent, the record of your arrest will be sealed for three years and then physically destroyed, and you can lawfully state that you’ve never been arrested for this specific incident. Penal Code 851.8(a), (b), (f).
If you’re eligible under the C.A.R.E. Act, then you can file your petition directly with the Court, and 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; or your underlying offense was for domestic violence, and your criminal history reflects a pattern of such behavior. If the prosecutor feels that the latter applies to you, then you’ll have to persuade why sealing your arrest record serves the interests of justice. Penal Code 851.91 (c)(2)(A)(i).
If your petition is granted under the C.A.R.E. Act, your arrest will be deemed to have never have occurred, and you may answer accordingly. Penal Code 851.91(e)(2)(B). Additionally, your criminal history report will be updated with an annotation appearing next to the arrest indicating that it has been sealed pursuant to the C.A.R.E. Act. Penal Code 851.92(b)(2).
However, you’ll still have to disclose the sealed arrest when applying for a state license, such as a law license. Penal Code 851.92(e)(2)(B)(ii). Still, there is a benefit to sealing your record under the C.A.R.E. Act: it shows that you took affirmative steps to clarify your criminal record and it demonstrates that a Judge agrees with your assessment that the arrest was unwarranted (as opposed to not pursued by authorities for lack of sufficient evidence).
It may be prudent to consult with a criminal defense attorney about which option (or whether both options) is best for you.
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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.
