SEALING YOUR ARREST RECORD AS A MATTER OF RIGHT
March 1, 2018 by Cheryl Bigos
In October, 2017, Governor Jerry Brown signed SB 393, which went into effect on January 1, 2018 as Penal Code Section 851.91. This newly enacted statute allows arrestees to seal their arrest records "as a matter of right" or "in the interests of justice" if the arrest did not result in a conviction.
Previously, arrest records could only be sealed under Penal Code Section 851.8, which required one to prove they were "factually innocent" of the charges. Even if one did prove factual innocence, the records would not be sealed if an arrestee filed a civil action against police officers who made the arrest. The burden to prove factual innocence in these cases was quite high and motions to seal arrest records were rarely pursued or granted.
Under the new statute, one may have their arrest record sealed "as a matter of right" and destroyed if: 1. the arrest did not result in a pleading being filed by the prosecuting attorney and the statute of limitations has run on all charges; 2. a pleading was filed but no conviction occurred and the case was dismissed and the charges may not be refiled; 3. no conviction occurred and the defendant was acquitted; or 4. a conviction occurred that was overturned on appeal.
Arrest records are not eligible under this statute if: 1. the charges may still be filed by the prosecuting attorney; 2. the arrest was made for a charge such as murder in which there is no statute of limitations; or 3. the defendant purposely evaded "law enforcements efforts to prosecute the arrest" by leaving the jurisdiction or engaging in identity fraud.
In cases where one has a pattern of arrests and/or convictions for Domestic Violence, Child Abuse, or Elder Abuse, the arrestee must prove that sealing his/her arrest records would be in the interests of justice. A pattern means two or more convictions or five or more arrests for "separate offenses occurring on separate occasions within three years from at least one of the other convictions or arrests." This means if there is a pattern of arrests or convictions for violence in a domestic setting, the records will not be sealed as a matter of right.
To determine whether the interests of justice would be served in the cases above, courts considering the following factors: 1. hardship to the petitioner caused by the arrest that is the subject of the petition; 2. declarations and evidence regarding the petitioner's good character; 3. any evidence concerning the arrest; 4. the petitioners criminal history, if any; and 5. any other factors the court deems relevant.
In all cases, the petitioner has the burden to prove their arrest record should be sealed as a matter or right or in the interests of justice. If the petitioner meets this burden, then the burden shifts to the prosecuting attorney to provide reasons why the court should deny the petition.
If you or anyone you know are interested in obtaining more information about sealing your arrest record, please contact our office.
DOMESTIC VIOLENCE RESTRAINING ORDERS AND CHILD CUSTODY
February 14, 2018 By Cheryl Bigos
As a family law and criminal defense attorney, I have represented numerous clients who have either perpetrated or been a victim of domestic violence. Many clients tend to misunderstand exactly how a restraining order may or may not affect visitation with their children. While there is no black and white answer, there are guidelines and statutes that are followed by the courts.
Family Code Section 3011 states that when determining custody of a child, a court will consider the "health, safety, and welfare" of the child. Family Code Section 3020 states that child abuse or domestic violence that takes place in the home "where a child resides is detrimental to the child."
Family Code Section 3044 presumes that sole or joint legal or physical custody of a child by a parent who has perpetrated domestic violence within the last five years would be "detrimental to the best interest of the child." One has "perpetrated" domestic violence for the purposes of this section when they have: 1) been convicted of domestic violence in a criminal court; and/or 2) were issued a domestic violence restraining order through the family courts; and/or 3) consideration of any relevant admissible evidence including recommendations by Family Court Services and child custody evaluators.
What many people do not know is that this presumption is "rebuttable," which means it may be overcome if a perpetrator can prove to the court they are taking steps to change their behavior. When determining whether or not a presumption may be overcome, a court considers the following factors: a. whether any further acts of domestic violence were committed; b. whether the perpetrator completed a batterer's treatment program; c. whether the perpetrator completed parenting classes and/or alcohol and drug classes if the court finds it appropriate; d. whether the perpetrator is on probation or parole and is complying with the terms; and e. whether there is a restraining order in place and the perpetrator is complying with the terms of the order.
It is important to remember, however, the factors are merely guidelines and there is no one-size-fits-all when determining whether or not the presumption may be rebutted. Courts evaluate each case individually and will also consider the degree of injury to the victim, continuous threats to the victim and his/her family, and the seriousness of a criminal conviction, i.e. felony vs. misdemeanor. They will also consider any steps taken by a perpetrator that has not been ordered by the court, i.e. voluntarily starting anger management or parenting classes.
If you have been deemed a "perpetrator" of domestic violence and are having difficulty obtaining visitation with your children, or have any questions concerning domestic violence, please contact our office for a free 20 minute phone consultation.
UNDERSTANDING THE CIVIL COMPROMISE STATUTE
December 6, 2017 by Cheryl Bigos
THE STATUTE
California Penal Code Sections 1377 - 1379 provides that a victim of a misdemeanor may compromise an offense when there is a remedy in the civil courts absent some exceptions. Types of misdemeanors include theft, assault, and hit and run cases.
In lay terms, this means that a person charged with a misdemeanor may have the criminal charges dismissed against him or her if the victim has been made whole through a civil claim.
HOW IT WORKS
The following is an example of a civil compromise. Jeffrey hits Susan's car and does not stop to exchange information. Susan gets Jeffrey's license plate number and reports the incident to the police. The District Attorney or City Attorney's office charges Jeffrey with a misdemeanor Hit & Run, and he is arrested.
Susan also contacts an attorney to file a civil claim against Jeffrey's insurance company for property and bodily injury damages totaling $10,000. The insurance company pays Susan the full amount and Jeffrey does not have to worry about a civil lawsuit being filed against him. However, the prosecutors will continue pursuing criminal charges against Jeffrey who must appear in court.
Upon payment of the $10,000, Susan has the option to sign a civil compromise. This informs the court that she is releasing the defendant from further liability because she has been paid in full and made "whole" under the civil settlement. Once this "release" is brought to the court's attention, the criminal case will likely be dismissed.
EXCEPTIONS
A defendant is not eligible for a civil compromise if the offense: 1) was committed upon an officer; 2) riotously; 3) with an intent to commit a felony; 4) a family or household member; 5) in elder abuse cases; 6) misdemeanor sexual assault against a child; and 7) public offenses for which there is no victim.
The victim MUST agree to the civil compromise. A court may require that the victim appear in person, or the victim may write a declaration to be verified by the prosecutor. While the prosecutor may make an argument against the civil compromise, the ultimate decision is made by the judge. If this is the defendant's first offense and there are no other charges pending, the case will likely be dismissed. On the other hand, a judge may not grant a civil compromise if there are other charges pending against the defendant, or if the defendant has a history of convictions.
If you or anyone you know is facing a first time misdemeanor offense, or have further questions about civil compromise, please contact our office!
