I was arrested a while back for DUI and the DA never filed charges. Is there a permanent record of my arrest somewhere even though no charges were filed? If there is a record, is there anything I can do to get the arrest off my record?
This is the question I am most often asked when a client's case is
dismissed, or when the District Attorney's office decides not to file
charges. The answer to your first question is yes, there is a record of
your arrest, even though no charges were ever filed. With regard to
your second question, the answer, again, is a yes. In order to seal,
and ultimately destroy, the record of an arrest that did not result in
the filing of criminal charges, you must file a petition for factual
innocence with the arresting law enforcement agency.
If your request is
denied, or the agency fails to respond within 60 calendar days, you can
set a court date to have your petition heard. If you do petition the
court, it is very important for you to be cognizant of the fact that
you carry the burden in proving that there was no reasonable cause for
your arrest. Further, the court is not bound by the normal rules of
evidence, as it would be in a trial, and has broad discretion in what
evidence it considers.
This can be both a positive and a negative, as
the court can consider things like employment and family history,
education, and community involvement. However, the court can also
consider the police report, in its entirety, giving it access to
information that it may not otherwise have access to. At your hearing,
you must prove the police report exonerates you, and doesn't just leave a
substantial doubt as to your guilt.
Given this burden of proof, I
would highly recommend retaining counsel, as a prophylactic measure, if
the record of your arrest has become a major thorn in your side. Should
you prevail at the hearing, it will be ordered that the record of your
arrest be removed from all State and Federal databases, and that any
physical records be destroyed.
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