Sealing a Domestic Violence Related Arrest in CaliforniaBy Paul Hecht

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As the nation's largest law firm specializing in criminal record clearing, one of the most common circumstances we see presented by clients is a domestic violence-related arrest that doesn't lead to any conviction. If you have been arrested but not convicted in California, you may be able to seal and eventually destroy the record of the arrest. To find out if you are eligible to have your domestic violence record sealed you can take our free eligibility test.

Why the Police Handle Domestic Violence Calls Poorly

Often times, domestic violence arrests are the result of a heated argument that leads to a call to the police by someone involved in the altercation, a friend, family member, or nosey neighbor. The problem is, regularly neither of the participants in the altercation actually committed a crime nor do they want the other arrested or convicted of a crime. Frequently, the participants of the fight call law enforcement because they simply want someone to mediate the situation in order to let cooler heads prevail. Unfortunately, law enforcement personnel aren't marriage counselors or certified mediators. They are trained to enforce the laws, maintain order, and protect the public. "[policy changes] require officers to make an arrest every time they are called to respond to a domestic violence-related situation. Even if no act of domestic violence occurred, someone is going to be arrested." Officers and deputies are very busy and their services are needed elsewhere; they cannot spend a large amount of time trying to sort out what had exactly occurred or who said and did what. Discerning what happened during the dispute is even more difficult when the situation is emotionally charged.

Complicating matters, since around the time of the O.J. Simpson case in the mid 1990's, there has been a policy shift in most police departments and sheriff offices, which require officers to make an arrest every time they are called to respond to a domestic violence-related situation. Even if no act of domestic violence occurred, someone is going to be arrested.

This policy shift was caused by several reasons. One reason is because of the fear officers and deputies have that if someone is not removed from the dispute, the argument could escalate into physical violence or worse. Also, in the past, the alleged victim of domestic violence would call the police and report that physical violence had occurred. However, when the police would arrive, the alleged victim would recant their statements at the scene and the police would make no arrest. This common practice led to the phrase, "pressing charges." This term is commonly used today, but has little meaning as victims have no control over whether the state's prosecuting attorney will file or drop criminal charges. In some cases, this approach has protected domestic violence victims that would otherwise be unwilling or too afraid to take action to get out of their dangerous relationships. However, it has also led to unnecessary police interference in domestic relationships and wasted taxpayer dollars on private quarrels in which no arrest was necessary.

Why a Domestic Violence Arrest Charge Can be a Problem

Even though the arrest didn't lead to any conviction, arrested individuals are left to live with the shame and stigma of an arrest record. Furthermore, more and more employers scrutinize job applicants' criminal history before hiring. "As if the ordeal of the arrest and the following stigma and discrimination weren't bad enough, the procedure to seal an arrest in California is a complicated one that needs the help of an attorney." Even though it is illegal to discriminate due to an arrest without a conviction in California, it still frequently occurs. As if the ordeal of the arrest and the following stigma and discrimination weren't bad enough, the procedure to seal an arrest in California is a complicated one that needs the help of an attorney.

How to Expunge a Domestic Violence Charge

In order to have your arrest record sealed, a judge must determine that you are "factually innocent" of the charge(s) for which the arrest was made. Most people when they hear that term, they believe that since they were not convicted, that they must be "factually innocent." Unfortunately, the principle that one is considered innocent until proven guilty is not applicable to sealing an arrest record in California. The simplest way it can be explained is that there is a difference between being not guilty and being innocent. Individuals are often arrested for crimes they did commit, but for any number of reasons are not actually convicted of crime; some of those reasons include: a lack of evidence, police misconduct, or refusal of witnesses to testify. As a result, the rationale in arrest record sealing cases is that the lack of a conviction or a finding of not guilty does not necessarily mean the person is innocent or did not commit a crime.

In order for the judge to make a finding of factual innocence and seal an arrest record, the petitioner must convince the judge that "no reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made." (California Penal Code section 851.8(b)) Complicating matters, it is the petitioner's burden to prove their innocence. In a criminal prosecution, it is the job of the prosecutor to prove that the defendant is guilty beyond a reasonable doubt. In the California arrest record sealing procedure, it is now the petitioner's job to prove that there is no reasonable cause for their arrest. The petitioner is required to put on evidence proving their innocence, which may include witness statements, affidavits, police reports, or any other evidence that is relevant and reliable. It is a complex and difficult process, which is why it is so important that you have an experienced attorney assist you.

Proving "factual innocence" in domestic violence arrest record sealing cases can be more difficult than others because the cases present several unique issues. Because domestic violence involves violence, judges scrutinize the facts of the case more closely and may require more evidence of innocence in order to seal the arrest. For reasons similar to law enforcement personnel that do not want something to happen on their watch, judges do not want to be the one to seal an arrest record and then later read in the news that the petitioner committed a serious crime against their significant other.

Regularly, without a corroborating statement from a witness or the alleged victim, the judge finds that the statements of the petitioner alone are not enough to prove factual innocence. Unfortunately, there are usually no other witnesses besides the petitioner and the alleged victim, leaving no one but the participants of the dispute to present statements of the petitioner's factual innocence. Problematically, both of these individuals' testimony is likely to be viewed with skepticism by the judge. The petitioner's statements are often looked at as being self-serving in order to have their record cleared. Furthermore, as noted earlier, the victims of domestic violence have a history of changing or recanting their stories because they are often affected either financially or emotionally by their significant other's arrest, amongst other reasons.

Another common complicating occurrence is that there was some mutual physical violence or contact, but only one of the participants was arrested. It is human nature to try to defend oneself against a physical attack; but, the individuals defending themselves may be subject to arrest or worse if the other combatant convinces officers or deputies that their injuries are more serious or that they did nothing to cause the other person to defend themselves. The police are often are forced to base the decision on who to arrest on emotional and conflicting stories, which causes arrests to not be based on fact. This can often result in the wrong individual being arrested.

Important Factors to Consider when trying to Expunge a Domestic Violence Charge

Those issues aside, there are lots of factors and evidence that may be considered by judges when deciding whether to make a finding of factual innocence to seal a domestic violence arrest record. Some of the most common:

As the nation's leading criminal record clearing law firm, the Law Firm of Higbee & Associates has successfully obtained the sealing of numerous domestic violence-related arrests in California. It is important to use an experienced law firm that specializes in record clearing due to the complex nature of the arrest record sealing process. If you would like us to help you seal your arrest record in California, we can begin the process right away. A California-licensed attorney would draft the necessary legal documents for you, file them with the appropriate court, respond to any objections from the government, and make any necessary court appearances to argue on your behalf.

To learn more about getting your record cleared, you can take our free eligibility test to see what types of record clearing you may be eligible for or read more articles in our free expungement information and education section.