Criminal Law

Criminal Law Questions? Ask a Criminal Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

This answer was rated:

I live in California I filed an EPO last summer after a

I live in California...

I live in California I filed an EPO last summer after a stupid drunken fight with my husband, and now he has lost senior management promotion as well as other things. We are now trying to figure out how to get it expunged in Northern California

Lawyer's Assistant: Has anything been filed or reported?

Yes I filed an epo then a TRO. I dismissed all charges and file the dismissal and there was no follow up court date or anything

Lawyer's Assistant: Since laws vary from place to place, what state is this in? And just to clarify, have charges been officially filed?

Q no charges nothing were ever filed he was not arrested I simply went to the police station to file the EPO and he was served

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Nope just how do we clear his record of the epo in California

Show More
Show Less
Ask Your Own Criminal Law Question
Answered in 7 hours by:
3/6/2018
James Daloisio
Category: Criminal Law
Satisfied Customers: 871
Experience: 30 years experience in criminal law, continuing education.
Verified

Hi, my name is ***** ***** welcome to Just Answer.

Short answer to your question is no.

Expungement in California is directed at criminal offenses; unless there was a conviction, there's nothing to expunge.

There's an unofficial procedure used infrequently but successfully in California, which makes use of Penal Code Section 851.8, Petition for Factual Innocence. Unfortunately, to avail yourself of this remedy, your husband would have had to have been arrested. Just securing a protective order is insufficient under the statute to seek relief.

Only Massachusetts has taken any steps at all in this area, they are indeed baby steps. Back in 2006 the Massachusetts Supreme Judicial Court ruled in Commissioner of Probation v. ***** *****, 65 Mass.App.Ct. 725, 843 N.E.2d 1101 (2006), ruled that “a judge has the inherent authority to expunge a record of a 209A order from the statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court.”

I am not aware of this argument ever having been made in a California court. The reasoning behind this decision is sound, although since the original decision, the rule has been severely restricted to cases involving more than just false testimony, although in one case fraud was found where the complainant made 19 "false and perjurious" allegations.

The most recent case involving perjured testimony resulted in the court finding that the restraing order had not been obtained by “fraud on the court,” which required a showing of a larger plan to harass the defendant or undermine the judicial process; the court gave as examples of such a scheme bribery of judges or jurors.

In that case, the court ruled that the complainant sought the order as part of a larger pattern of harassment, and in addition to filing false affidavits in the restraining order matter falsely complained to the Board of Bar Overseers regarding the defendant. It will be difficult, if not impossible, for defendants to demonstrate “fraud” in most cases where restraining orders are obtained through false testimony. However, one remaining possible strategy for defendants in appropriate cases may be to seek to show that such false testimony was, as in Adams, a part of a larger scheme to use the court system to perpetrate harassment.

As you can see, your case falls short of being able to make this argument. All I can suggest is that you might want to start contacting your representatives in the Senate and the Assembly and let them know about the Draconian consequences of an EPO in California, and tell them that there should be some relief for people whose lives were turned upside down over some words. You might add that the both of you are paying. Point out that felons can get their convictions expunged but a person can open his mouth and it sticks to him forever.

Hope that answered your question. Sorry the news wasn't better but the domestic violence pendulum in California has swung pretty far and seems to have gotten stuck at the extreme end. You can always return here with follow up questions on this topic at no additional charge. And thank you for using Just Answer.

Ask Your Own Criminal Law Question
Customer reply replied 5 months ago
Thank you. So what if even though I have proof from a psychiatrist that I was under extreme chemical imbalances from narcotics from a recent surgery and hormonal issues, and now diagnosed as bipolar as the result as well as proof that I was coerced into filing the EPO by the local domestic violence center I still have no case to present to a judge for expungement for my husband? And why don’t they tell you hear things when you go to file? I was never in serious threat I was totally out of my mind literally

Hi again

You are focusing on the wrong issues. A court does not have any authority to order a civil protective order expunged, or sealed, or destroyed. The legislature has not passed any laws giving the courts that authority. The only way anyone has figured out a way around that is by what happened in Massachusetts. But even if that law were applicable in California, it does not fit the facts of your case.

The police department must have generated some kind of a report when this occurred. Was your husband detained, i.e., was his freedom of movement restricted in any way by the police when he was served with the order? I'm wondering if there was sufficient loss of liberty to characterize it as an "arrest." At least then you might have a good faith basis to file the 851.8 petition. Think about that.

Ask Your Own Criminal Law Question
Customer reply replied 5 months ago
Well I did as you suggested and emailed my senators and representative to explain need for help in these areas. As far as records... I did not press charges from the fight only has him served. He was told to go home and stay there and not to contact me until the police arrived to serve EPO papers. Would that work?

Probably not. An arrest is a deprivation of a person's liberty. A "detention" is a lesser deprivation; temporary, not involving force or a show of force, and not designed to last very long. But in some circumstances, a "detention" can simulate an "arrest." However, if your husband was at home when the police arrived to serve him, then I doubt that he was "detained" at all, because there was no temporary interference with his freedom of movement.
I'm really sorry that you are going through this. The collateral consequences of an EPO are not well known and not well publicized, and you don't find out about them until it's too late. But that's the state of the law in California. They've made a huge effort to protect victims of domestic abuse but in the process have completely ignored the fact that sometimes, the "suspect" really is innocent.

Ask Your Own Criminal Law Question
Customer reply replied 5 months ago
Ok thank you. This is ridiculous you can get arrested removed but not something so stupid as this. I’ll keep asking. I know this horrible. What if I got him arrested a second time and then dismissed, and Presented the whole case would that also get previous records erased?

Well, you're thinking like a lawyer...

But it wouldn't work. The records that you are seeking to have sealed and destroyed in the arrest case must be based upon the same conduct that formed the basis for the EPO.

Ask Your Own Criminal Law Question
Customer reply replied 5 months ago
Lol thank you. I think. And that sucks that it wouldn’t retro for that as well with proof of mental instability. Ok i have an appt with a lawyer in person to physically snow all documentation and see what they say. Thank you for your time and help.
Customer reply replied 5 months ago
Wait same conduct.... so a second fight egged on by my mental instability that made me take out a second arrest and RO? That would be two strikes on him.... but exact same circumstances

Well, here's the first line from PC 851.8:

In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest.

So, breaking it down:

1. "In any case." Not "cases." Singular means one case.

2. "Where a person has been arrested." One person, one arrest. One case.

3. "The person arrested may petition the law enforcement agency having jurisdiction over the offense." Note that it says "the offense," not "offenses." And it refers back to the offense for which the person was arrested.

So...

Nice try. But courts apply a "plain English" meaning to statutes whenever possible. It's basic statutory construction.

Ask Your Own Criminal Law Question
Customer reply replied 5 months ago
All right. Was worth asking �� plus it goes as second strike and also doesn’t look good on my record for my kids so not worth it. Ok thank you very much for time and effort. I’ll keep fighting.

Good luck. Feel free to return here. And please don't forget to rate any one of these answers :)

James Daloisio
Category: Criminal Law
Satisfied Customers: 871
Experience: 30 years experience in criminal law, continuing education.
Verified
James Daloisio and 87 other Criminal Law Specialists are ready to help you
Ask your own question now
Was this answer helpful?

How JustAnswer works

step-image
Describe your issueThe assistant will guide you
step-image
Chat 1:1 with a criminal lawyerLicensed Experts are available 24/7
step-image
100% satisfaction guaranteeGet all the answers you need
Ask James Daloisio Your Own Question
James Daloisio
James Daloisio
James Daloisio, Lawyer
Category: Criminal Law
Satisfied Customers: 871
871 Satisfied Customers
Experience: 30 years experience in criminal law, continuing education.

James Daloisio is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends.

NormaPensacola, FL

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

< Previous | Next >

Meet the Experts:

Ely

Ely

Counselor at Law

3,248 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

P. Simmons

P. Simmons

Lawyer

2,181 satisfied customers

16 yrs. of experience including criminal law.

RobertJDFL

RobertJDFL

Lawyer

2,016 satisfied customers

Experienced in multiple areas of the law.

LawTalk

LawTalk

Lawyer

1,815 satisfied customers

30 years legal experience

Nate

Nate

Lawyer

1,750 satisfied customers

Over 10 years of criminal defense practice.

Marsha411JD

Marsha411JD

Lawyer

1,640 satisfied customers

Licensed attorney with 29 yrs. exp. in criminal law

Barrister

Barrister

Criminal Defense Law

1,266 satisfied customers

17 years practicing criminal defense.

< Previous | Next >

Related Criminal Law Questions
I'm trying to do research about a personal situation. When I
I'm trying to do research about a personal situation. When I turned 18, 10 years ago, I lied for a friend to the authorities. I was charged it false informing. I entered a pretrial diversion program a… read more
Ely
Ely
Counselor at Law
Juris Doctor
3,248 satisfied customers
When completing a job application usually there is a
When completing a job application usually there is a question about felonies. It may say something like: "Have you ever been convicted of a felony?" If someone has had their felony record expunged how… read more
Zoey, JD
Zoey, JD
Doctoral Degree
198 satisfied customers
My husband is being messed over due to him being a police
My husband is being messed over due to him being a police officer. He was upset well we both were he held a gun to his head and said he was going to kill himself,but about an hour before the verbal "t… read more
Dwayne B.
Dwayne B.
Juris Doctor
28,766 satisfied customers
These events happened in North Carolina. My son was charged
These events happened in North Carolina. My son was charged with 2 counts of felony assault with a deadly weapon in 2010. His attorney got the DA to dismiss the charges in 2014, if my son paid the med… read more
Zoey, JD
Zoey, JD
Doctoral Degree
198 satisfied customers
Hi. I live in New Jersey. I was involved in a burglary when
Hi. I live in New Jersey. I was involved in a burglary when I was 18 and did a pre trial intervention program and the case was dismissed and later expunged. I also have two shoplifting charges when I … read more
Marsha411JD
Marsha411JD
Lawyer
Doctoral Degree
1,640 satisfied customers
I recieved a citation in PA on st patties day. I have never
I recieved a citation in PA on st patties day. I have never been in trouble before and iam 51. I can have this on my record I could loose my job. There was no breathalyzer done. I pleaded not guilty. … read more
Law Pro
Law Pro
Doctoral Degree
19,000 satisfied customers
I am a US Green Card holder, resident in CA. I was arrested
I am a US Green Card holder, resident in CA. I was arrested in Addison TX for public intoxication. They held me for 6 hours, took my finger prints, photo, and charged me with PI, and an FBI number was… read more
Zoey, JD
Zoey, JD
Doctoral Degree
198 satisfied customers
Back in 2004 I was arrested twice in a 4 month period. The
Back in 2004 I was arrested twice in a 4 month period. The 1st was for 273.5A. (A stupid, drunken fight with my wife) I spent the night in jail, posted bail the next morning and that was it. I receive… read more
AttyDort
AttyDort
Attorney at Law
Juris Doctorate
95 satisfied customers
Hi, My case has been dismissed in the local court and then
Hi, My case has been dismissed in the local court and then expunged. The expungement letter states that it is expunged but not from CDS database. I am about to renew my NJ CDS license and they have a … read more
dkennedy
dkennedy
Attorney
Juris Doctorate
27 satisfied customers
A Friend of mine was arrested for DUI in Riverside Co.,California.
A Friend of mine was arrested for DUI in Riverside Co.,California. If his rights were violated under the circumstances of his arrest, would he be able to have his DUI expunged from his record? My frie… read more
Zoey, JD
Zoey, JD
Doctoral Degree
198 satisfied customers
Re: California Criminal Code - 17b Regarding defendant is
Re: California Criminal Code - 17b Regarding defendant is sentenced under a felony crime but the plea deal states it'll be misdemeanor in two years IF probation is followed. So after two years defenda… read more
stevexo
stevexo
Criminal Defense Attorney
Doctoral Degree
992 satisfied customers
The lawyer said that he thinks he can get it dismissed because
The lawyer said that he thinks he can get it dismissed because essentially the original epo was dismissed on Aug 9th but the ex husband failed to mention the violation of the epo to the judge before h… read more
Zoey, JD
Zoey, JD
Doctoral Degree
198 satisfied customers
In New Jersey Criminal Law under PTI (Pretrial Intervention)
In New Jersey Criminal Law under PTI (Pretrial Intervention) Program: I need to obtain following documents for travel/immigration purpose. Please let me know from "where" and "how" do I get/obtain the… read more
Michael J, Esq.
Michael J, Esq.
Solo Practicioner
Doctoral Degree
3 satisfied customers
MY DAUGHTER IN MS. WAS ARRESTED CHARGED WITH GRAND LARCENY
MY DAUGHTER IN MS. WAS ARRESTED CHARGED WITH GRAND LARCENY OF SUSPECTED JEWELRY THEFE FROM RESIDENCE. THE VICTIM MADE ACCUSATIONS ON OTHER GIRLS AND ALL WERE BROUGHT TO STATION AND ARRESTED. THEN THE … read more
Joseph
Joseph
Attorney
Doctoral Degree
7,245 satisfied customers
I live in Northern Virginia, and recently went to court for
I live in Northern Virginia, and recently went to court for charges of contributing to the delinquency of a minor. The judge dismissed the charges. (y two boys at the age of 3 and 4 unlocked the door … read more
lwpat
lwpat
Doctoral Degree
256 satisfied customers
I have been employed with the government as a Security Manager
I have been employed with the government as a Security Manager for 8 years and I received a BackGround Security Clearance Interrogatory stating that my FBI record states that I was arreested on May 14… read more
Legalwriter
Legalwriter
Attorney
Juris Doctor
201 satisfied customers
My husband was arrested 4 years ago. There were no criminal
My husband was arrested 4 years ago. There were no criminal charges. I am wondering if his arrest is public information, and if this could ever hold him back from community or religious positions he m… read more
LegalKnowledge
LegalKnowledge
Juris Doctor
31,003 satisfied customers
Last Night my boyfriend and I got into a drunken argument.
Last Night my boyfriend and I got into a drunken argument. There were some witnesses who called the police but I left before their arrival. My shirt happened to get ripped and now my boyfriend is bein… read more
FiveStarLaw
FiveStarLaw
Attorney
Doctoral Degree
477 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x