California: Sealing Arrests Relating to Domestic ViolenceJuly 13, 2015
By: Jeff Libersat, Partner, Eastman, Libersat, Meyler, PC
Reasons Domestic Violence Arrests in California are Common
Domestic violence-related arrests are among the most common types of arrests in California. The reason for this is that most police departments have a policy in place requiring them to make an arrest after being called to the scene of domestic disturbances. These policies often lead to unfair results, but police departments have this policy for the following reasons:
to prevent further injury to a possible victim of domestic violence;
to limit use of police resources on return trips for the same reason; and
to ensure the defendant does not have an opportunity to pressure the victim to not seek justice.
Domestic violence calls are usually made by someone in a family argument or a person who overhears an argument, and trying to be a good Samaritan, calls the police to end the disturbance. In many instances these calls are made when no crime has actually been committed, but either a party to the argument or a bystander thinks it’s a good idea to have the police step in and mediate the argument. Despite good intentions, it is not the job of the police to mediate arguments—their job is to enforce the law by looking for evidence of criminal activity and make arrests. Police have time constraints and must try to resolve situations quickly and efficiently in order to move on to the next call. As a result, these types of circumstances often lead police to make quick decisions to resolve the situation and make an arrest.
Domestic Violence Arrests Can Cause Serious Problems
Often domestic violence arrests stem from simple arguments, and do not lead to convictions. However, even if you were not convicted, a domestic violence arrests will stay on your criminal record forever, preventing you from getting a good job, desirable housing, and other opportunities in life. This may not be fair, but unfortunately it’s the way current California law is written. Making matters worse, the procedure for sealing arrest records in California can be very complicated and difficult without the help of an experience expungement attorney.
The Difficulty in Sealing California Arrest Records
The process for sealing any arrest record in California requires that a petition to seal and destroy arrest records be drafted and filed with the relevant court in the jurisdiction of the arrest. In order for the court to grant an order to seal the arrest records the court must make a determination of “factual innocence”, meaning, the court must find that “no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made” (See PC § 851.8(b)). This is much different than a typical criminal proceeding, because the burden of proof is switched from the State to the defendant. This means that you, the defendant, must establish that you are “factually innocent” of the offense, instead of the State having the burden to prove that you committed the offense.
Sealing arrests involving allegations of domestic violence can be particularly difficult because public policy puts a particular emphasis on keeping domestic violence records in order to protect victims of domestic violence. In addition, because domestic violence is a crime involving violence, it is typically viewed as a much more severe crime by judges and law enforcement than “non-person” crimes such as theft. As a result, judges often see such crimes as warranting more scrutiny when evaluating whether factual innocence has been established.
The Process of Sealing Arrest Records for Domestic Violence
A statement from a witness or the alleged victim supporting a claim of your factual innocence can be very helpful in having the court find in your favor and allow the domestic violence arrest to be sealed. Without a corroborating statement from a witness or the alleged victim supporting your claim of factual innocence, it will typically be more difficult for you to successfully seal your arrest for domestic violence.
In determining whether factual innocence exists to support the sealing of your arrest record, a judge will weigh the evidence, often with the following questions in mind:
Do you have a criminal history, particularly relating to restraining orders for domestic violence?
Does the alleged victim have a criminal history?
Does your criminal history suggest you to be truthful?
Is there reason to question your honesty or the honesty of the alleged victim? (e., does either party have a criminal history involving deceit or lying such as perjury, forgery, or theft)
Do you or the alleged victim have a history of substance abuse?
Was there evidence of physical injury to the alleged victim?
What was the severity of the charge against you? (e., was it a felony or misdemeanor, and whether a weapon was involved)
Is there evidence that you are a good person who positively contributes to the community? (e., do you have positive character references or other evidence of good moral character)
The process to seal an arrest record involving domestic violence can be particularly difficult in California—the judge has wide latitude and discretion in deciding whether you were “factually innocent” of the crime, making it vital that you understand the process and put the best possible argument in front of the court. Typically, the best way to improve your chances of successfully sealing your record is to hire an experienced attorney.
Increasing Your Chances of Success
If you have been arrested for domestic violence in California, and you believe that it was wrongful, and that you can reasonably establish that you were innocent of the crime you were arrested for, immediately taking the appropriate steps to seal your arrest record is critical. Sealing your arrest record in California can take time, and you do not want to miss out on an opportunity in life due to something that you didn’t do or wasn’t your fault. Waiting until you need your criminal record corrected is typically too late to make a difference. The law firm of Eastman, Libersat, Meyler, PC serves all of California, and helps clients seal arrest records all of the time. We are a leading national expungement and record sealing law firm, offering low-price and money-back guarantees, and flexible payment plans on most of our California Services. If your California criminal record contains harmful information resulting from an arrest for a crime you did not commit and were not convicted of, call us today at (844) 947-3732, take our FREE, confidential eligibility test, or visit our website at www.wiperecord.com for more information.
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