Mistakes on your criminal record can be devastating to professional licensees such as those Simas & Associates, Ltd. represents. This blog discusses the process for correcting these mistakes.
Correcting Mistakes on Your Criminal Record
Under California law, the Office of the Attorney General and Department of Justice are responsible for maintaining summary criminal history information on those arrested or convicted of crimes in California. As Penal Code section 11105 provides, the Attorney General is to maintain “the master record of information” pertaining to the identification and criminal history of any person, such as name, date of birth, physical description, fingerprints, photographs, dates of arrest, arresting agencies and booking numbers, charges, dispositions, and similar data about the person.
Under this law, every time a law enforcement agency makes an arrest, it is required to transmit the arrest report to the DOJ. Further, it is the duty of law enforcement or the court of a jurisdiction to furnish a disposition or result of the arrest to the DOJ (see Penal Code §§ 11115, 13150, and 13151).
The problem is, as with all computer records, the DOJ records sometimes have mistakes and inaccuracies. And these inaccurate criminal histories, often referred to as a “rap sheet,” can be devastating to one’s career, professional license, and ability to perform their profession.
Frequently there are cases of mistaken identity, missing dispositions, erroneous arrests, incorrect dates, stale information, or unfounded charges in the “rap sheet.”
The Penal Code obliges the California DOJ, law enforcement, and courts to accurately report and maintain such information and provides that if there is a problem with your record, it will be your responsibility to try to resolve it. Unfortunately, correcting such a problem can be an extremely burdensome, costly, and frustrating experience. In fact, it involves its own administrative hearing process.
Penal Code section 11126 allows someone who believes his or her criminal history report from DOJ contains inaccurate or incomplete information to submit a written request to DOJ to correct the record. Upon receiving such a request, DOJ is required to review the record in question to ensure that the individual’s criminal history correctly reflects the “source documents” from the arresting agency or court. This process can often resolve a criminal history report problem but does not always do so.
In the case where DOJ denies the request for correction, such information can only be modified or deleted by court order, at direction of the arresting agency/district attorney having jurisdiction over the matter, or by appealing the DOJ’s denial of a request to fix the criminal history report.
An administrative process exists to appeal the DOJ’s decision before an ALJ. DOJ rarely informs people of this option and, at the time of the writing of this blog article, the author of this blog could not even locate this on the DOJ’s website. A person who disagrees with the DOJ can file an appeal (Penal Code § 11126 (c)). The appellant is entitled to an administrative hearing under the Administrative Procedure Act (Gov. Code §§11500, et seq.).
If the appeal is unsuccessful, the next step is to a petition for writ of mandate (Penal Code § 11126 (c); Gov. Code § 11523). A writ of mandate asks the court to order the government agency to follow the law by correcting its prior action.