Criminal Defense Q&A: I Was Arrested for Hit and Run, But the Case Was Bogus! How Can I Prevent This Arrest from Showing Up in My Background Check?
Question:
My husband just got a felony hit and run when his mother was driving our car. What can we do? My husband asked his mother to drive him to work one day in our car so she could drive our car home; this was 2 years ago. She went in the exit and the parking attendant stopped her and said she couldn’t go that way, so my husband jumped out of the car and started walking towards the building. I was in the passenger seat, and he was half way to the building when we just drove away. After I got home, my husband called and said the parking attendant was claiming his mother hit him with our mirror and that he was being arrested. The sheriff came by and questioned his mother and I. They measured our mirror and the sheriff said it wasn’t possible. We showed up for our court date and was told the deputy never filed the report. Now 2 years later it is showing on my husbands record as a felony hit and run when he wasn’t driving and it is affecting his job. My husband gets a background check every year in his job being a federal employee, and it’s just now showing up; he’s a wildland firefighter. What can we do?
Answer:
From what you’ve described, it sounds like your husband was arrested, but the arrest never resulted in a conviction. You are correct that a recent, unresolved felony arrest found on a criminal background check can be perceived as a red flag by employers.
A new law that took effect on January 1st, 2018, known as SB 393, allows people who find themselves in circumstances similar to your husband to seal the record of their arrest. The arrest will not be erased from a person’s criminal record, but a notation will appear next to the incident indicating that a judge found it appropriate to seal the arrest pursuant to law. Penal Code 851.92(b)(2).
In California, sealing an unresolved arrest protects employees from employer discrimination due to the arrest. Penal Code §§11105(b), (c); Labor Code §432.7(a)(1). However, these protections may not apply since your husband is a federal employee.
Still, there is value in your husband sealing his arrest record because doing so demonstrates to his employer that the matter has been resolved and definitively establishes that the felony arrest did not result in a conviction, as attested to by a judge. Additionally, a memo can be submitted to provide context for the arrest.
A criminal defense attorney in your area should be able to assist you with this matter.
Read other criminal defense attorney answers on Avvo: I Was Arrested for Hit and Run, But the Case Was Bogus! How Can I Prevent This Arrest from Showing Up in My Background Check?
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.
