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The Injustice of California’s Record Sealing Statute

If you were arrested and tried for a crime where there wasn’t even “reasonable cause” to believe you committed the crime, you may be left with a criminal record that can prevent you from getting a job, housing, volunteering in your children’s classroom , and other basic things that people with clean criminal records can do. All this damage comes from a crime you clearly did not commit.

California Records Sealing Statute, Penal Code Section 851.8. is designed to prevent this gross injustice by allowing people who are found not guilty to have all records of the arrest and court case sealed and destroyed. In most situations, the statute successfully balances the state’s right to preserve information against an individual’s right to preserve its reputation. However, in a large number of situations, wrongfully accused people are left with lifetime damages caused by arrest records or court cases in which they were innocent, but the statute allows the records to be sealed.

The California Department of Justice (CDOJ) maintains a complete criminal record on every person who has ever been arrested or charged in court with a criminal offense. This report is commonly known as a rap sheet or background report. Among other things, the rap sheet shows the date, place, and reason for the arrest or court case. Even if a person is found not guilty or charges are dropped, the record of the arrest and any court cases are shown on the person’s rap sheet.

Unlike reports kept by credit bureaus or the Department of Motor Vehicles, which only show negative history for a limited number of years, once something shows up on the CDOJ rap sheet, it stays forever; unless the person successfully petitions to have the record of the arrest and trial sealed. A successful petition to seal a record with a clean expungement of any evidence of the arrest or court case from the CDOJ rap sheet.

The CDOJ will only release the rap sheet to authorized state agencies for limited purposes or to the person who requests their own rap sheet by filing a petition, submitting fingerprints, and paying a nominal fee (to the which can be waived for people who cannot afford the fee). . Despite an apparent attempt to prevent the rap sheet from being released publicly, rap sheets are widely used for private purposes. According to a 2006 study by the Society for Human Resource Management, 80 percent of medium and large employers conducted criminal background checks to screen prospective employees. That’s 26 percent more than in 1996. Rap ​​sheets are often required by a wide range of other people and organizations, from owners to little leaguers.

Information contained on rap sheets often determines which applicant gets things like housing, employment, or the ability to interact with their children. There is no law in California that prevents these decisions from being made based on arrests or charges for which the person was factually innocent. Consequently, it is good public policy that rap sheets are accurate and do not contain information that could unduly prejudice an individual. California’s record sealing law provides most wrongfully accused citizens with a way to clear their criminal records of negative information.

The procedure is established in section 851.8 states:

“In any case where a person has been arrested and an accusatory plea has been filed, but no conviction has occurred, the defendant may, at any time after the dismissal of the action, apply to the court which dismissed the action to determine that the defendant is factually innocent of the charges for which the arrest was made.”

If the individual is successful, the status indicates:

“The court will also order the law enforcement agency having jurisdiction over the crime and the Department of Justice to request the destruction of any arrest record they have turned over to any federal, state, or local agency, person, or entity. Each state or local agency, person, or entity within the State of California that receives such a request shall destroy its arrest records and the request for destruction of such records, except as otherwise provided in this section.”

One of the main problems is that statute does not expressly allow partial sealing of an arrest record. Courts have yet to interpret PC 851.8 as allowing “surgical removal of certain portions of arrest records.” people vs. Matthews 7 CA 4th 1052 (1992). So, if an individual charged with two crimes is found not guilty of one of the crimes and guilty of the other, no part of the record can be sealed. Consider this scenario that leads to an unfair and unexpected result:

A couple is having a heated argument. A neighbor who fears violence calls the police. When the police arrive, one of the suspects, who is in a fit of rage, wrongfully accuses the other of sexual assault. Police arrest those accused of sexual assault and disorderly conduct. An hour later, the accuser calms down, loses his anger, and retracts his testimony to the police. The wrongful charge of sexual assault is never brought to court. However, the defendant goes to court and pleads guilty to misdemeanor disorderly conduct and is sentenced to a $200 fine. Unknown to this defendant, and most defendants, is that there is another sentence they will face for life. Every time someone else looks at your rap sheet, they will see that the defendant was arrested for a felony sexual assault. The defendant will have to spend his entire life waiting for people to believe the negative history explanation on the rap sheet and dealing with the likelihood that he will cause unfair harm.

This unfair and unexpected outcome harms the individual and society by placing major lifelong obstacles in the way of a person trying to reach their personal and professional potential.

Legislative history makes it clear that the legislature found it unfair for a citizen to be placed on an arrest record for a crime that was not committed. There is nothing in the plain language of the statute or in logic to suggest that the legislature would tolerate the unjust charging of one charge simply because the defendant is justly charged by a separate charge.

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