If you were arrested and tried for a crime where there was not even “reasonable cause” to believe you committed the crime, you may be left with a criminal record that may 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 stems from a crime you clearly didn’t 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 arrest and court case records 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 individuals 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 history of 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 arrest record and any court cases show up on the person’s rap sheet.
Unlike reports maintained by credit bureaus or the Department of Motor Vehicles, which only show negative history for a limited number of years, once something appears on a CDOJ rap sheet, it remains forever; unless the person successfully requests that the arrest and trial record be sealed. A successful petition to seal a record with a clean erase of any evidence of the arrest or court case from the CDOJ rap sheet.
The CDOJ will only release the rap sheet to licensed state agencies for limited purposes or to an individual who requests their own rap sheet by filing a petition, submitting fingerprints, and paying a nominal fee (at the which can be waived for people who cannot pay 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 midsize and large employers conducted criminal background checks to screen prospective employees. That’s 26 percent more than in 1996. Criminal records are often required by a wide range of other people and organizations, from landlords to little leagues.
The information contained in the rap sheet 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 on the basis of arrests or charges for which the person was in fact innocent. Accordingly, it is good public policy that rap sheets are accurate and do not contain information that could unduly prejudice a person. California’s records sealing law provides most wrongfully accused citizens 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 indictment has been filed, but no conviction has been produced, the defendant may, at any time after the dismissal of the action, petition the court that dismissed the action to determine that the defendant is factually innocent of the charges on 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 records that they have turned over 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 arrest records and the request to destroy such records, except as otherwise provided in this section.”
One of the main problems is that that statute does not expressly allow partial sealing of an arrest record. Courts have yet to interpret PC 851.8 as allowing for the “surgical removal of certain portions of arrest records.” people v. 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, wrongly 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 the testimony before the police. The wrongful charge of sexual assault is never brought before a 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 of the defendants, is that there is another sentence that they will have for life. Every time someone else looks at your rap sheet, they will see that the defendant was arrested for felony sexual assault. The defendant will have to spend his entire life waiting for people to believe the explanation of the negative history on the rap sheet and dealing with the likelihood that he will cause unfair prejudice.
This unfair and unexpected outcome harms the individual and society by placing major lifelong obstacles in the path 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 encumbered with an arrest record for a crime that was not committed. There is nothing in the plain language of the law or in its logic to suggest that the legislature would tolerate the wrongful burden of one charge simply because the defendant has the fair burden of a separate charge.