Sealing and Destruction Of Records (California Penal Code 851.8)

With more sophisticated computers and increasing laws designed to be tough on criminal offenders, privacy is fast becoming a concern for everyone; especially individuals with a criminal record. While they say we learn from our mistakes, no one wants their criminal records public. Depending on the circumstances, it may be possible to get criminal records sealed. Once records are sealed it limits public access. In these cases, the offense is deemed not to have occurred and the records are subsequently destroyed. The skilled California defense lawyers of The Kavinoky Law Firm are experienced in all aspects of petitioning to have criminal records sealed and destroyed.

Sealing and destruction of records is a good option in certain cases and more difficult in others. Under California penal code 851.8, an innocent person arrested for or charged with a crime may be able to have the records sealed by obtaining a declaration of “factual innocence.” A finding of factual innocence is generally initiated by motion and requires a judge’s approval.

In general, someone is deemed to be factually innocent if no reasonable cause exists to believe he or she committed the offense. The procedure for obtaining a certificate of factual innocence vary depending on whether formal charges are filed, but the result is the same: All records relating to the arrest and charges must be sealed for three years and must subsequently be destroyed. The arrest is deemed never to have occurred.

Often time arrests occur and the person is released and no formal charges are filed. In these cases, the arrestee can petition for a finding of factual innocence to have the arrest records sealed.

When charges were filed but the case was dismissed, a petition for a finding of factual innocence can be made, but it’s in the discretion of the court and the district attorney to grant relief. When a trial results in an acquittal, the judge may find the person factually innocent and order relief.

There are specific evidentiary and timing issues which are important to maximize a successful finding of factual of innocence. Anyone looking into relief under penal code 851.8 should consult with a California criminal defense attorney.

Even in cases where sealing and destruction of records is appropriate, certain exceptions apply. Transcripts of court proceedings, published appellate opinions, and any records relevant to pending lawsuits are exempted. Records will not be destroyed if the conviction is on appeal, jail time was never served, fines unpaid, probation is incomplete, or there is a bench warrant.

There are certain cases when relief under Penal Code 851.8 can be very useful, including:

• Juvenile misdemeanor arrest and conviction records
• Marijuana arrests and convictions
• Drug diversion agency records

Juvenile misdemeanor arrest and conviction records: Sealing of records is often awarded in cases involving minors. The arrest records of a minor may be sealed if he or she was released for lack of probable cause; the juvenile court dismissed the case, or the defendant was acquitted.

This section does not apply to arrests for sex, drug, or traffic offenses. If the court makes the finding required for relief, the records will be sealed and the proceedings will be deemed not to have occurred.

It is rare for a person under age 18 to be convicted of a misdemeanor in adult court but when it does happen, Pen Code §1203.45 provides for the sealing of such records

Marijuana arrests and convictions: In general, while sealing and destruction of records requires court approval, cases such as minor misdemeanor marijuana convictions will be automatically sealed. Records of marijuana arrests and convictions are automatically destroyed two years after the arrest or conviction in cases involving simple possession.

Drug diversion agency records: PC 851.8 provides that drug diversion agency records will be sealed and destroyed.

Employers generally cannot ask job applicants about arrests or detentions that did not result in conviction; convictions for which the record has been ordered sealed or expunged; expungements or as noted above, or participation in a diversion program.

Applicants for peace officer and health care positions are exempted from this rule, and applicants can be asked about arrests for sex or drug offenses. Professions involving young children have also been found to require disclosure for arrests involving sex or drug offenses.

Sealing and destruction of records is a viable option after many California criminal convictions. The experienced California criminal defense attorney of The Kavinoky Law Firm can determine whether an arrest or conviction can be sealed and destroyed. Contact them today for a free consultation.

Drivers who leave the scene of an accident in California can face hit-and-run charges even if they are not at fault. The severity of the charges depends on many factors, such as whether the accident results in a  hit and run with property damage, injury, or death. Regardless of the circumstances, hit-and-run is a very serious charge that requires expert legal representation. The skilled defense lawyers of The Kavinoky Law Firm are experienced in every aspect of California hit-and-run cases, and will work very hard to protect the accused driver’s rights and freedom.

Leaving the scene of a fatal accident is an extremely serious charge in California. A driver convicted of hit-and-run causing death faces from three months in county jail to up to four years in state prison. The driver also faces a fine of up to $10,000, a one-year driver’s license revocation, probation, and possible vehicle seizure.

In some cases, a driver involved in a fatal hit-and-run accident can face even more serious charges such as manslaughter or vehicular homicide. And if alcohol or drugs were involved, the driver may face an additional charge of DUI / DWI or driving under the influence of drugs.

However, a hit-and-run charge doesn’t equal an automatic conviction – far from it. There are many effective defenses to a charge of leaving the scene of an accident. It’s important to remember that the prosecutor is required to prove his or her case beyond a reasonable doubt in order to obtain a conviction. That means the prosecutor has the burden of convincing all 12 jurors of the driver’s guilt. The defense is under no burden to prove anything other than to prove the prosecution’s case is faulty.

Hit-and-run cases involving death are extremely complex and technical, and typically involve a great deal of physical evidence. In many cases, the assistance of an experienced accident reconstructionalist can uncover evidence overlooked by police that can help the defendant’s case.

In some cases, the defense may be better off negotiating a plea bargain rather than taking a charge of leaving the scene of an accident to trial. Plea bargains sometimes offer a satisfactory resolution to a hit-and-run charge involving death. It may be possible for the driver to plead guilty in exchange for reduced charges and/or punishment. In some cases, alternative sentencing may be available that can reduce or even eliminate a jail sentence.

There are many viable defense strategies to a California hit-and-run charge involving property damage, injury or death. The experienced defense lawyers of The Kavinoky Law Firm are skilled in every aspect of defending charges of leaving the scene of an accident, and will develop a proven defense strategy designed to safeguard the driver’s rights and minimize the consequences. Contact them today for a free consultation.

Sometimes it seems that California has as many vehicle-related laws as it does cars – besides the hundreds of infractions listed in the California Vehicle Code, there are a host of more serious offenses such as DUI, hit-and-run, and evading arrest. These are serious crimes with severe repercussions and require expert legal help. The skilled defense lawyers of The Kavinoky Law Firm have the experience needed to effectively defend any vehicle-related offense in the greater Los Angeles area or anywhere in California.

California’s drunk driving laws are among the strictest in the nation – a driver convicted of DUI faces consequences that include heavy fines, long driver’s license suspensions, and even jail time. The severity of the driver’s case depends on many factors, such as whether the offense was charged as a misdemeanor or a felony and whether the motorist refused a chemical test to determine blood alcohol content (BAC). However, it’s possible to fight a driving under the influence charge and win with a top defense attorney at the driver’s side.

Hit-and-run is another serious offense under California law. Anyone who leaves the scene after being involved in or causing an accident can be charged with hit-and-run. The seriousness of the charges will depend on whether the accident involved property damage, injury, or death. If convicted, the driver faces fines, a license suspension, probation, and possibly even incarceration. However, it may be possible to avoid some or all of these repercussions. Sometimes a carefully negotiated plea bargain can reduce or eliminate punishment. In other cases, it may be possible to create reasonable doubt of the driver’s guilt and win an acquittal.

Evading arrest is another California offense with extremely serious repercussions. Anyone who fails to stop for police when requested to do so may be charged with this offense. Drivers who fail to stop for police are often charged with evading with reckless driving, a more serious offense. If someone other than the driver is hurt or killed during a police pursuit or other attempt to stop the driver, the motorist likely will be charged with evading causing injury or death, which is a very serious offense.

If a driver charged with hit-and-run or evading arrest is found to have a BAC of .08 percent or greater, or if alcohol or drugs were a factor in the incident, the motorist will also be charged with driving under the influence. These are complex cases that require expert legal representation.

Criminal Defense Attorneys in California

The knowledgeable defense attorneys of The Kavinoky Law Firm have the experience needed to effectively defend any vehicular offense and will stand up for the driver’s rights and freedom. To learn more about effective defenses to California DUI, hit-and-run, or evading arrest charges, contact a skilled defense lawyer today for a free consultation.

When arrested for a California sex crime, the accused is permitted to post bail, to be released on his or her own recognizance (also referred to as OR release) or the offender will be denied bail, based on the specific crime or crimes alleged. Whether or not the individual’s bail may be modified without a hearing will also depend on the charged offense. An experienced sex crime defense attorney is the key to navigating this system with ease and understanding.

The bail for certain sex offenses will be set according to a bail schedule. These offenses include those that involve obscene materials, rape (when the alleged victim is incapable of consenting due to a mental or physical disorder or when he or she is unconscious, under the influence or submits under the false belief that the perpetrator is his or her spouse), statutory rape, spousal rape (when the alleged victim is under the influence or unconscious or is threatened by incarceration or deportation), oral copulation (with a minor over 14 or under the circumstances described above under rape), sodomy (with a minor over 14, under the same circumstances or when threatened by incarceration or deportation), sexual penetration (under the same circumstances), indecent exposure, prostitution, pimping, pandering, bigamy,incest, sexually assaulting an animal, abduction for marriage, contributing to the delinquency of a minor or situations where a public entity employee engages in sexual activity with an involuntarily committed resident.

With respect to the above offenses (some being misdemeanors, some being felonies), the bail may be modified upon an application that may be submitted by the arresting officer, by the defendant or by anyone on his or her behalf. Public safety will be the main consideration for the court in determining whether or not to raise or lower the set bail or whether to release the accused OR.

Certain sex crimes require that a hearing be held before the accused may have his or her bail modified. These crimes include lewd or lascivious acts with a child under 14, sexual penetration with a child under 14 who is also more than 10 years younger than the accused, and the continuous sexual abuse of a child. When a hearing is held, the judge will primarily consider public safety, but will also consider the defendant’s flight risk, his or her prior criminal history and the severity of the pending case. When considering these issues, the judge presumes that the accused is guilty, which is another reason why it is imperative for the accused to have a skilled criminal defence attorney who knows how to persuade the judge otherwise..

There are certain sex offenses where bail doesn’t apply, because they are considered so serious. These include rape, spousal rape, oral copulation,sodomy, sexual penetration or lewd or lascivious acts performed on or with a child under 14 where force or threats were used to accomplish any of these acts, or where the accused acted in concert with another while committing or attempting to commit these offenses.

If arrested on a bailable offense and denied an OR release, the accused can elect to post cash bail or a bail bond. If the accused posts cash bail, he or she remits the full bail amount, which will be returned at the conclusion of the case if he or she attends all court appearances. If the accused posts a bail bond (the more commonly-used option), he or she pays a bail agent or bondsman 10% of the bail amount and the agent then pays the rest. The bondsman may also require additional collateral, which he or she may keep or sell if the bond isn’t refunded at the conclusion of the case due to the defendant’s failure to appear.

The outstanding attorneys at The Kavinoky Law Firm are unsurpassed in California sex crime defense. They are dedicated to helping their clients get released from custody as quickly and inexpensively as possible, and providing the best defense throughout the entire criminal court process. Contact them today for a free consultation.

It’s a crime in California to leave the scene after being involved in or causing an accident. Any driver who does so can be charged with misdemeanor or felony hit-and-run. The severity of the charges depends on whether the accident involved property damage, bodily injury, or death. Regardless of the charges, it’s imperative to have an expert defense attorney protecting the driver’s rights. The skilled defense lawyers of The Kavinoky Law Firm are experienced in every aspect of defending California hit-and-run cases, and will work hard to minimize or even eliminate the consequences for a driver charged with leaving the scene of an accident.

Leaving the scene of an accident that involves only property damage is a less serious offense in California than hit-and-run involving bodily injury or death, but the driver still faces serious repercussions. A driver convicted of hit-and-run with property damage – even if the driver didn’t cause the accident – faces punishment up to a $1,000 fine and six months in jail. In some cases, the driver also must forfeit the vehicle.

If the driver is alleged to have been under the influence of alcohol or drugs at the time of the hit-and-run crash, there may be a DUI / DWI charge in addition to any allegations of leaving the scene of an accident. A motorist convicted of drunk driving and hit-and-run faces extreme consequences that can include prison time. These are extremely serious charges that require an expert defense attorney.

Fortunately, a driver who is accused of leaving the scene of an accident in California has many options available that may help to soften or even eliminate the consequences of a hit-and-run charge. The first option is to aggressively fight the charges. There are many viable defenses to a California hit-and-run charge. Remember, the prosecutor has the burden of proving the driver’s guilt beyond a reasonable doubt. The defense could offer no evidence at all of the driver’s innocence, and if the prosecutor hasn’t proven the case beyond a reasonable doubt, the driver cannot be convicted.

In some cases, it may be possible to reach what is known as a civil compromise, in which the accused driver agrees to pay for all property damage and medical expenses, if any. If the other party agrees to a civil compromise and the accused driver reimburses all expenses, no criminal charges will be filed in connection with the alleged hit-and-run accident.

Certain cases require creative resolutions on the part of both the defense and the prosecution. The driver may be eligible for alternative sentencing such as community service or other options that can reduce or even eliminate a potential jail sentence. Other options may include CalTrans work or electronic monitoring. Although some sentencing alternatives may seem less than desirable, anything that helps the accused hit-and-run driver avoid time in jail is well worth considering.

Another option in a California hit-and-run case is a plea bargain. With the help of an experienced defense lawyer, the driver may be able to plead guilty to a lesser charge with reduced repercussions. However, a plea bargain should be just what the name implies – a good deal for both the driver and the prosecutor. The prosecution is more likely to offer a favorable plea bargain when it’s case isn’t particularly strong.

Regardless of the circumstances surrounding a California hit-and-run arrest, the experienced defense lawyers of The Kavinoky Law Firm will be able to reduce or even eliminate the consequences. Contact a skilled defense attorney today for a free consultation.

Relief from Sex Offender Registration

California Penal Code 290 requires individuals convicted of certain sex crimes to register as sex offenders. Registration is typically for life, and can subject a person to severe humiliation, isolation, physical harm and difficulties in securing and/or maintaining employment and/or housing. Fortunately, relief is available for those who qualify, and the exceptional criminal defense lawyers at The Kavinoky Law Firm know the procedures, requirements and arguments that most effectively achieve success.

The possibility of escaping sex offender registration is if the registered individual was convicted of either engaging in sodomy with another consenting adult or of oral copulation under the same circumstances prior to January 1, 1976. By 1976, these activities were decriminalized between consenting adults, and an individual who was convicted of such a sex offense is discharged from the duty to register if he or she has no other offenses for which registration is required.

A less specific and more common approach lies in the Certificate of Rehabilitation and Pardon. A person who obtains such a certificate may be relieved of the duty to register under Penal Code 290, if the offense for which he or she was convicted meets certain statutory requirements, and if she or she is not otherwise in custody, on parole or on probation.

A Certificate of Rehabilitation and Pardon will relieve an individual from the registration requirement if the certificate was granted prior to January 1, 1998 and was for a violation of lewd or lascivious acts or for the continuous sexual abuse of a child, provided that the person was granted probation because he or she was a member of the victim’s household, that probation was in the best interest of the child victim, that probation was feasible, that the defendant was removed from the victim’s home until the court determined that the best interests of the victim were served by allowing the defendant back into the home, that the defendant was successfully treated and that he or she complied with the registration requirements for a period of at least 10 years immediately preceding the filing of the petition and had not been convicted of a felony during that period.

A person who has been convicted of specific sex offenses will not be relieved of the duty to register by a Certificate of Rehabilitation but may be able to secure a full pardon. These offenses include most instances of rape, including rape or penetration when acting in concert, enticing an unmarried female minor into prostitution (when charged as a felony), obtaining consent to a sexual act through fraud with an intent to create fear in the victim (when charged as a felony), procuring a minor under the age of 16 for lewd or lascivious acts, abducting a minor for prostitution, the aggravated sexual assault of a minor, most instances of sodomy, lewd or lascivious acts, most instances of oral copulation, continuously sexually abusing a child, and most felony acts involving forcible acts of penetration. It follows that crimes not specifically referenced are eligible for registration relief by way of a Certificate of Rehabilitation and Pardon.

When a full pardon (or Governor’s Pardon) is an individual’s only option for seeking relief of Penal Code 290 registration, he or she must demonstrate a high standard of constructive behavior following his or her conviction. Pardons are limited to those who can demonstrate that they have lead meaningful, productive and law-abiding lives following their convictions.

When seeking a Certificate of Rehabilitation or a full pardon in an effort to relieve oneself of the registration requirements that are imposed by California Penal Code 290, it is vital to contact an experienced criminal defense attorney who can make sure that the appropriate forms and procedures are followed, and that the most convincing arguments are articulately conveyed. The skilled attorneys at The Kavinoky Law Firm excel in the complexities related to California sex crime law and defense and are well qualified to help an individual desiring such relief. Contact The Kavinoky Law Firm today for a free consultation and to begin the expungement and healing process.

Sex offender management: how registered sex offenders are tracked

In California, when an individual is convicted of certain sex crimes, he or she is required to register as a sex offender (under Penal code 290) with a local law enforcement agency. Prior to being released from jail or prison or prior to being placed on probation, the individual will be notified in writing of his or her duty to register, as will the Department of Justice (DOJ).

This information is maintained in the sex offender tracking program at the DOJ (available to the public under certain circumstances on the Internet) where each individual’s upcoming required update (and any violation of that update) is tracked. The DOJ updates its database daily, based on the information that it receives from reporting law enforcement agencies and it retains all records for 75 years following the disposition of an individual’s case.

Once registered, an individual’s personal information, including a photo, address, identifying information, aliases and relevant criminal history may be found online at meganslaw, which is the California website run by the DOJ. However, about 25% of registered offenders will not appear on the Internet, as they are excluded from public disclosure. Whether or not one’s information is publicly available depends on the specific sex crime that he or she was convicted of, as persons convicted of the “less serious” offenses are either automatically excluded or may apply for exclusion (available when the offender is the victim’s parent, stepparent, sibling or grandparent, when the offense didn’t involve specified acts and if the accused is currently on or has successfully completed probation).

Information that appears online is divided into three groups. The first group contains the most serious offenses and lists the offender’s complete address. The second group contains the slightly less serious offenses and will include the offender’s complete address (if the offender has a prior registerable offense) or only the offender’s zip code if the offense is his or her first. The final group contains offenses that only reveal the offender’s zip code. A qualified California sex crime criminal defense lawyer can tell an individual under which group his or her offense falls.

The skilled criminal attorneys at The Kavinoky Law Firm specialize in California sex crime defense and are an individual’s best chance of avoiding public disclosure on the Internet. They know that the dissemination of an offender’s personal information doesn’t only affect his or her reputation, but affects housing and job opportunities and may even lead to severe harassment and physical harm. They understand the variety of ways that Internet exposure can be circumvented and will do their best to plead their clients to offenses that do not require public online disclosure, to plead their clients to offenses for which they may apply for exclusion, to plead their clients to misdemeanors (on wobbler offenses) where the misdemeanor does not require public disclosure or to plead their clients to a greater offense that may carry a more severe jail or prison sentence but that is not sexually related, thus avoiding lifetime registration and the humiliation and isolation that frequently results from this devastating penalty.

It must be noted that the laws regarding sex offender registration and related Internet regulations are constantly changing and becoming stricter. California is in the process of implementing a program known as SARATSO (State-Authorized Risk Assessment Tool for Sex Offenders). Once implemented, every person required to register as a sex offender will be subject to its provisions. SARATSO will undoubtedly have extensive effects on probation vs. prison, the length of sentences and the conditions that relate to prison, parole and Internet exposure. This is perhaps one of the most important reasons why an individual accused with a California sex crime must contact the unsurpassed attorneys at The Kavinoky Law Firm who receive ongoing education and training with respect to this ever-changing complex and unique area of the law, which is directly responsible for their outstanding results. Contact them today for a free consultation, for the most trusted legal advice and for the very best representation.