In California, the Department of Justice (DOJ) is charged with maintaining state summary criminal history information on those arrested or convicted of crimes in California. The information the department keeps is "the master record of information compiled by the Attorney General pertaining to the identification and criminal history of any person, such as name, date of birth, physical description, fingerprints, photographs, date of arrests, arresting agencies and booking numbers, charges, dispositions, and similar data about the person." (Pen.Code, § 11105, subd. (a).) Every time a law enforcement agency makes an arrest it is required to transmit a report of the arrest to the DOJ. It is also the duty of the law enforcement or court of jurisdiction to furnish a disposition (result) of the arrest to the DOJ. (Pen.Code, §§ 11115, 13150, & 13151.)
Regrettably, it doesn't always work the way it should. Often, individuals have found that their DOJ criminal history report, often referred to as a "rap sheet" contains either inaccurate or incomplete information. Frequently, there are cases of mistaken identity, missing dispositions, erroneous arrests, incorrect dates or charges found in DOJ criminal history reports. Inaccurate or incomplete criminal history information can result in lost employment opportunities, denial of state licenses, or the denial of rights, such as firearm ownership.
The Penal Code appears to make it the responsibility of the California DOJ, law enforcement, and courts to accurately report and maintain arrest and conviction information. However, if there is a problem with your record, it will likely be your responsibility to try to resolve the situation. Unfortunately, correcting such an error can be extremely burdensome and costly.
If an individual believes there is an inaccurate or incomplete record on their DOJ criminal history report, the person may submit a written request to the DOJ to correct the record. Upon receipt of the request, the DOJ will review the record in question to ensure that the individual's criminal history report correctly reflects the "source document" from the arresting agency or court. (Pen.Code, § 11126.). This process regularly resolves criminal history report problems for many individuals.
Just as often, the request for correction or completion by the individual is denied. Arrest and disposition information on a DOJ criminal history report can only be modified or deleted by a court order or at the direction of the arresting agency/district attorney having jurisdiction over the matter. If the incomplete or inaccurate arrest or case is an old one, the reporting agency may have destroyed their original copy of the record as part of their record retention schedule. If that is the case, the DOJ may be unable to verify or correct the alleged inaccurate or incomplete record.
If the DOJ denies the individual's allegations of inaccuracy or incompleteness of the record, the individual has few options. If the inaccuracy or incomplete entry is due to an erroneous arrest, or arrest without a disposition, the DOJ regularly tells the individual to seek an arrest record sealing under California Penal Code section 851.8. However, that relief is available only to those who can establish and convince a judge that they are "factually innocent" of the charges. It is a high burden to meet; that lack of a conviction or dismissal is insufficient to meet the burden of "factual innocence." The individual must show that they never should have been arrested in the first place.
Alternatively, if the individual's allegations of inaccuracy or incompleteness are denied, the individual may appeal the DOJ's decision for administrative adjudication before an administrative law judge. (Pen.Code, § 11126, subd. (c).) The DOJ rarely informs people of this option, likely because they don't want the hassle. A person who disagrees with the results of the administrative adjudication may seek judicial review by filing a petition for "writ of mandate." (Pen.Code, § 11126, subd. (c); Gov.Code, § 11523). A writ of mandate is basically a court order to a government agency to follow the law by correcting its prior actions or ceasing illegal acts. The process for a petition for a "writ of mandate" is essentially a civil lawsuit against the department of DOJ to correct or complete the record.
As the nation's largest criminal record clearing law firm, we are a unique position to help you pursue any of the options available to you in order to help you correct your DOJ criminal history report.