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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

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Answered in 7 hours by:
3/6/2018
James Daloisio
Category: Criminal Law
Satisfied Customers: 340
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.

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Customer reply replied 1 month 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.

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Customer reply replied 1 month 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.

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Customer reply replied 1 month 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.

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Customer reply replied 1 month 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 1 month 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.

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Customer reply replied 1 month 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: 340
Experience: 30 years experience in criminal law, continuing education.
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