Darren Chaker on Expungement and Record Sealing

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Destroy Arrest Records in California

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Recognizing this injustice, California enacted Penal Code Section 851.8, a powerful tool for individuals to reclaim their lives through a "factual innocence petition." This article by Darren Chaker distinguishes between an expungement in California where the record is sealed but available to police and the intricacies of Section 851.8 which requires police to destroy arrest records, thus exploring its purpose, procedures, legal nuances, and potential pitfalls, with references to key caselaw for deeper understanding.
destroy arrest record in california by darren chaker

Destroy Arrest Records in California by Darren Chaker

California Penal Code Section 851.8: Erasing the Past – A Guide to Factual Innocence Petitions Which Allow to Destroy Arrest Records

In the relentless pursuit of justice, wrongful arrests remain a chilling reality. Legal researcher Darren Chaker has prepared dozens of motions to destroy police records where the absence of probable cause is determined.  For those falsely accused, the sting of an arrest record can linger long after charges are dropped, impacting employment, housing, and even personal relationships.

Recognizing this injustice, California enacted Penal Code Section 851.8, a powerful tool for individuals to reclaim their lives through a “factual innocence petition.” This article by Darren Chaker distinguishes between an expungement in California where the record is sealed but available to police and the intricacies of Section 851.8 which requires police to destroy arrest records, thus exploring its purpose, procedures, legal nuances, and potential pitfalls, with references to key caselaw for deeper understanding.

Understanding the Factual Innocence Motion in California Allowing to Destroy Arrest Records

In the realm of criminal law in California, the Factual Innocence Motion, as outlined in California Penal Code Section 851.8, plays a significant role in helping individuals regain their reputation and protect their rights by requiring police to destroy arrest records.

This legal mechanism provides an avenue for those who have been wrongfully arrested or detained to have their criminal records sealed and destroyed. The right to privacy to have records from meritless arrest is significant. “Prior cases have held that retention and dissemination of arrest records impinges on the right to privacy guaranteed by Cal. Const., Art. I, §1. (Central Valley Ch. 7th Step Foundation, Inc. v. Younger, 214 Cal.App.3d 145)

In this comprehensive guide by Darren Chaker, we will delve into the intricacies of the Factual Innocence Motion, its implications, and the requirements for filing one.

Requirement to Destroy Arrest Records

When a Factual Innocence Motion is granted, it signifies a pivotal moment in the quest for justice. This motion empowers individuals by ensuring that the record of their arrest and prosecution is sealed and ultimately destroyed by various law enforcement entities, including the jurisdictional law enforcement agency, the prosecutor’s office, and the Department of Justice.

More specifically, data entry related to the case, arrest reports, photographs, or other “writings” are located and destroyed. See Penal Code § 851.8 (j) requires “Destruction of records of arrest pursuant to subdivision (a), (b), (c), (d), or (e) shall be accomplished by permanent obliteration of all entries or notations upon the records pertaining to the arrest, and the record shall be prepared again so that it appears that the arrest never occurred.”

In fact even fingerprint impressions obtained at the time of arrest constitute part of an arrest record and must be destroyed upon a finding that the defendant is factually innocent. People v. Christiansen, 230 Cal. App. 4th 178, 178 Cal. Rptr. 3d 396 (2d Dist. 2014). In essence, the record of their past ordeal is wiped clean, giving them a fresh start.

Once a court issued an order to seal and destroy arrest records under Penal Code § 851.8 “the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events, the records of which are ordered sealed.”’ Parmett v. Superior Court, 212 Cal.App.3d 1261, 1265,262 Cal.Rptr. 387 (1989). That is power and authority to be allowed to deny the arrest ever took place.

Three-Year Sealing Period and Record Destruction by Police

Upon the granting of a Factual Innocence Motion, a three-year sealing period commences where the arrest records may not be inspected for any reason. During this time, both the arresting police department and the Department of Justice are mandated to seal all arrest reports, booking photographs, and other related evidence pertaining to the individual’s case. After the three-year interval, these agencies are then required to proceed with the complete destruction of the records associated with the arrest, ensuring that no trace of the incident remains in their databases.

Furthermore, the Factual Innocence Motion extends its reach beyond local boundaries. Any records pertaining to the arrest that have been disseminated to other local, state, or federal agencies or entities must also be destroyed. This comprehensive approach guarantees that the individual’s past arrest and prosecution will no longer appear on any agency’s record within the State of California.

Distinction from Expungement to Destroying Arrest Records

It is vital to note that the Factual Innocence Motion differs significantly from the process of expungement. Unlike California expungement, which merely updates the record to show that a conviction was dismissed, and in 2023 requires the public record is sealed, the Factual Innocence Motion under Penal Code 851.8 ensures that your criminal record will not reflect any indication of an arrest or prosecution for a crime, providing a more complete resolution to the wrongful arrest or detention.

Factual Innocence Motion for Detentions Requiring Police to Destroy Arrest Records

One notable aspect of the Factual Innocence Motion is that it is not limited to cases involving arrests; it also applies to individuals who have been detained by the police. Under California Penal Code section 851.8(m), even if you were merely detained on suspicion of committing an offense, you have the right to petition for a Factual Innocence Motion. Additionally, if you were arrested but subsequently released without any charges being filed against you, the law deems it a detention rather than an arrest, ensuring that your criminal record reflects the more accurate status of the incident.

Factual Innocence Process and Requirements to Require Police to Destroy Arrest Records

To initiate the process of filing a petition for factual innocence, certain prerequisites must be met. The individual must have been arrested but not convicted of the alleged crime. Importantly, the petition must be submitted within two years of the arrest, and it must include a declaration under penalty of perjury, affirming the individual’s factual innocence regarding the crime for which they were arrested.

Once the petition is filed, the court will conduct a hearing to assess the veracity of the factual innocence claim. During this process, both the prosecution and the petitioner will have the opportunity to present evidence and make their respective arguments. If the court determines that the individual is indeed factually innocent of the crime, it will order the sealing and destruction of the arrest record, ensuring that justice prevails.

In conclusion, the Factual Innocence Motion under California Penal Code section 851.8 is a vital legal recourse that empowers individuals who have been wrongfully arrested or detained. It not only clears their name but also erases any record of the unjust incident, providing a fresh start and safeguarding their rights in the eyes of the law.

The Heart of Section 851.8: A Path to Exoneration Through Mandating Police Destroy Arrest Records

At its core, Penal Code Section 851.8 empowers individuals arrested but never formally charged to petition for the destruction of their arrest records. This “certificate of factual innocence” acts as a legal eraser, clearing a person’s name from the official ledger of crime. Such exoneration grants a fresh start, unshackled from the stigma of an unjust arrest.

Eligibility and Prerequisites: Stepping onto the Path  to Destroy Arrest Records

Not every arrest qualifies for a Section 851.8 petition. Key conditions must be met:

  • No Formal Charges: No accusatory pleading, such as an indictment or information, must have been filed against the petitioner.
  • Petition Timing: The petition must be filed within two years of the arrest date.
  • Burden of Proof: The petitioner shoulders the burden of proving, by a preponderance of evidence, that “no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.”

Navigating the Procedural Maze: From Petition to Judgment and Destroying Arrest Records

The journey to factual innocence unfolds through a multi-step process:

  1. Petition the Arresting Agency: The initial step involves submitting a petition to the law enforcement agency that made the arrest.
  2. Prosecutor Notification: A copy of the petition must be served on the relevant prosecutor’s office.
  3. Response and Hearing: The agency and prosecutor have the opportunity to respond and contest the petition. If contested, a court hearing will be scheduled.
  4. Hearing Evidence: At the hearing, the petitioner presents evidence and arguments supporting their claim of factual innocence. The agency and prosecutor can present opposing evidence.
  5. Judicial Decision: The court weighs the evidence and makes a final determination. If granted, the arrest record is sealed and destroyed.

Key Caselaw: Illuminating the Path’s Twists and Turns to Destroy Arrest Records

While the language of Section 851.8 seems straightforward, legal interpretations and precedents have shaped its application. Notably, several cases shed light on critical aspects of the process:

  • People v. Mazumder, 34 Cal. App. 5th 732: This case emphasized the importance of timely filing the petition, highlighting that adhering to the two-year timeframe is crucial for eligibility.
  • People v. Bleich, 100 Cal.Rptr.3d 288: Bleich clarified that Section 851.8 exclusively applies to arrest records, reinforcing its limited scope.
  • People v. Christiansen, 230 Cal. App. 4th 178: Christiansen underlined the court’s responsibility to ensure a “full and fair” hearing, granting ample opportunity to present evidence, strengthening the petitioner’s position.

Challenges and Considerations: The Thorns on the Path to Destroy Arrest Records

Even with a seemingly strong claim, several potential challenges could hinder a factual innocence petition:

  • Limited Scope: Section 851.8 only applies to arrest records, not other investigative reports or media mentions.
  • Burden of Proof: Establishing “no reasonable cause” can be demanding, requiring compelling evidence.
  • Access to Evidence: Obtaining necessary evidence from law enforcement agencies can be difficult.
  • Legal Representation: Navigating the legal complexities often requires experienced legal counsel.

Conclusion by Darren Chaker: A Light at the End of the Tunnel to Destroy Arrest Records

California Penal Code 851.8 offers a vital lifeline for individuals wrongfully entangled in the justice system. While navigating the legal intricacies and emotional weight of a factual innocence petition can be daunting, the potential for reclaiming one’s life and moving forward with a clean slate makes it a powerful tool for restoring justice. If you find yourself needing legal advice, seek out an attorney who is aware of your specific circumstances, as nothing should be construed as legal advice to destroy arrest records.

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