Destruction of arrest records is possible in the state of California, but the rules for eligibility are often intricate and the court has significant latitude when considering information that may restrict the process. It is often necessary to have an experienced and effective Los Angeles criminal defense attorney who understands well the process of arrest record destruction and potential expungement of a criminal conviction. The expungement process is reserved for those who have actually been convicted, and each conviction record must qualify for sealing. The same process applies to arrest record destruction as well, but an entire arrest record for a former defendant cannot be allowed. Each arrest is evaluated individually for eligibility. It is never a good decision to attempt this legal motion without the advantage of solid legal representation who can convince the court your arrest record should be sealed. Just because the arrest record is eligible for consideration does not necessarily mean the court will approve it.
Who is eligible?
It is absolutely necessary to show that the defendant who was arrested as part of an investigation has not been convicted of the crime. Former criminal history is not necessarily a component of the decision by the court to allow record destruction, but former legal problems can be evaluated by the judge when issuing a ruling. Those individuals who were not charged normally only need to request a sealing and destruction order. Others who were actually charged will have an extra step in the determination process.
Contacting the Government Agency
In cases were defendants were arrested but never charged, the police department conducting the arrest should routinely hold the arrest record for three years and then destroy all evidence of the arrest. However, this does not always happen and could be very problematic for the exonerated defendant in the future when they are denied employment based on the arrest record. It usually takes up to 60 days to complete this process, and the arresting agency has the authority to refuse arrest record destruction. This is not necessarily the end of the process, as former defendants can still have the issue heard before the court.
Petitioning the Court
The next step will be for your Los Angeles criminal defense attorney to file a petition with the court requesting ordered sealing and destruction. This petition is filed in the court of jurisdiction where the arrest occurred and all records pertinent to the arrest are considered by the judge. Anyone who was never charged after the arrest or that has been acquitted by a jury can be automatically eligible to have their arrest record sealed without prejudice and destroyed by the arresting agency. Those who were actually charged but never convicted will have a second step in the process that can potentially result in a denial from the court.
Proving You are Factually Innocent
Many times individuals are arrested on superficial evidence that the prosecutor later determines will not hold up in court. This does not mean the defendant is not still possibly involved in the crime, which is the essential problem in this step. While it is incumbent on the prosecutor to prove the case in a criminal prosecution, it is till incumbent on your Los Angeles criminal defense attorney to establish that the material case evidence excludes the defendant from consideration for involvement. The fact that a charge was not supported by convicting evidence does not mean the defendant was not involved somehow, and the evidence must completely eliminate the defendant from any culpability. This is why it vital to have an experienced and aggressive criminal defense attorney who understands how to build an expungement and records destruction request case and have a reasonable expectation of a positive outcome.