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The Injustice of California's Record Sealing Statute

By: Mathew Higbee

If you were arrested and tried for a crime where there was not even "reasonable cause" to believe that you committed the crime, you can be left with a criminal record that will prevent you from getting a job, housing, volunteering in your children's classroom, and other basic things that those with a clean criminal record can do. All this damage comes from a crime that you clearly did not commit.

California's record sealing statute, Penal Code section 851.8. is designed to prevent this gross injustice by allowing people who are found factually innocent to have all records of the arrest and court case sealed and destroyed. In most situations, the statute successfully balances state's right to preserve information against an individual's right to preserve their reputation. However, in a large number of situations, wrongfully-accused individuals are left with life-long damage caused by the records of arrests or court cases where they were factually innocent, but the statute does allow for the records to be sealed.

The California Department of Justice (CDOJ) keeps a complete criminal history on every person who has ever been arrested or charged in court with a criminal offense. This report is commonly referred as a rap sheet or background report. Among other things, the rap sheet shows the date, location, and reason for the arrest or court case. Even if a person is found innocent or if the charges are dropped, the record of the arrest and any court case is shown on the individual's rap sheet.

Unlike reports kept by credit bureaus or the Department of Motor Vehicles who only report negative history for a limited number of years, once something appears on the CDOJ rap sheet, it stays forever; unless the individual successfully petitions to have the record of the arrest and trial sealed. A successful petition to have a record sealed with wipe clean 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 individual who requests their own rap sheet by filing paper, submitting fingerprints, and paying nominal fee (which can be waived for individuals who cannot afford the fee). Despite an apparent attempt to keep the rap sheet from public disclosure, raps sheets are widely used for private purposes. According to a 1996 study by the Society for Human Resource Management, 80 percent of mid-size to large employers conducted criminal background checks to screen potential employees. That is up 26 percent from 199?. Rap sheets are often required by a wide range of other individuals and organizations, from landlords to Little Leagues.

The information contained on rap sheets often determines which applicant gets such things as housing, employment, or the ability to interact with their children. There is no law in California that prevents these decisions being made on the basis of arrests or charges for which the person was factually innocent. Accordingly, it makes good public policy sense to have rap sheets be as accurate and free of information that would wrongly prejudice an individual. California's record sealing law gives most wrongfully accused clearing their rap sheet of negative information.

The procedure is put forth in section 851.8 states:

"in any case where a person has been arrested, and an accusatory pleading has been field, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court which dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made."

If the individual is successful the statute states:

"The court shall also order the law enforcement agency having jurisdiction over the offense and the Department of Justice to request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity. Each state or local agency, person or entity within the State of California receiving such a request shall destroy its records of the arrest and the request to destroy such records, unless otherwise provided in this section."

One of the major problems is that that statute will not allow for the partial sealing of a record. Courts have refused to interpret PC 851.8 as allowing "surgical excision of certain parts of arrest records." So if an individual who is charged with two crimes is found factually innocent of one the crimes and guilty of the other, no part of the record be sealed. Consider this scenario that leads to an unjust and unexpected result:

A couple is having a heated argument. A neighbor who fears violence calls the police. When police arrive one of the suspects, who is in fit of rage, wrongfully accuses the other of sexual assault. The police arrest the accused for sexual assault and disturbing the peace. An hour later, the accuser calms down, loses the anger and recants the testimony to the police. The wrongful charge of sexual assault is never filed in court. However, the accused goes to court and pleads guilty to a misdemeanor of disturbing the peace and is sentenced with a $200 fine. Unbeknownst to this defendant, and most defendants, is that there is another sentence that they will have for life. Whenever some asks for a rap sheet, they will see that the defendant was arrested for a felony count of sexual assault. The defendant will have to spend a lifetime hoping people believe the explanation for the negative history on the rap sheet and dealing with the likelihood that it will cause unfair prejudice.

This unjust and unexpected result hurts the individual and society by placing large, life-long obstacles to a person reaching their personal and professional potential.

Author Bio
Mathew K. Higbee, Esq. is admitted to the California and Utah Bar Associations. He is the founder of RecordGone.com, a leading law firm in the area of expungement and record clearing. Higbee is a graduate of the University of Utah's S.J. Quinney College of Law.

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