Criminal defense

Factual Innocence/Bar Application

When applying for the bar (or other professional license) is it necessary to disclose an arrest that was later sealed and destroyed, via 851.8? Both the FBI and CA DOJ now indicate "no criminal record found" when a fingerprint search is performed.

On one hand, I can see erring on the side of caution and disclosing. On the other hand, what is the point of this remedy (which is the strongest type available in CA) if it can't be followed statutorily, as the arrest is no longer deemed to have ever occurred, with absolutely no caveats. Unlike PC 1000 and other types of record sealing, where you must disclose in some instances.

My concern is that the stigma of the arrest, even with a factual innocence finding, will hurt my chances and/or serve to create a paper trail when now there is none.

Nathan’s Answer

There are caveats:

851.8...

(i) (1) Any finding that an arrestee is factually innocent pursuant to subdivision (a), (b), (c), (d), or (e) shall not be admissible as evidence in any action.

(2) Notwithstanding paragraph (1), a finding that an arrestee is factually innocent pursuant to subdivisions (a) to (e), inclusive, shall be admissible as evidence at a hearing before the California Victim Compensation and Government Claims Board.

However, you are ostensibly not dealing with the CVC or GCB. Nonetheless, you are dealing with the State Bar, an administrative agency that has plenary power to inquire. In other words, should they find information related to this arrest that you did not disclose, that could be grounds for deeper inquiry.

Please find qualified counsel to help you prevent a potentially career ending/delaying maneuver.

 

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