Expungments and The DOJ Record (RAP Sheet)
A common question I am asked is “can I remove my expunged conviction from my RAP sheet?” The short answer is no. But let’s dive a little deeper to understand the issues at play.
The California Department of Justice (and FBI) maintain criminal histories on every person in California. These background reports include arrests, convictions, juvenile adjudications, and often applications for security clearance. Referred to as RAP Sheets, these records are consulted by law enforcement when determining eligibility to purchase a firearm, eligibility for a professional license, or enhanced criminal charges due to a prior conviction. Private employers do not have access to the RAP Sheet.
After a conviction or arrest, the arresting law enforcement agency or superior court in the case of conviction reports the information to the California Department of Justice and FBI. This results in the creation of the record. The RAP Sheet is not always complete; some entries are lost in transmission. Nonetheless, for most convictions, an entry is added to the RAP Sheet describing the conviction offense, whether it was a misdemeanor or felony, and the sentence. After clean record relief is granted, like a dismissal under Penal Code section 1203.4 (California’s version of an expungement), an additional entry is added to the RAP sheet. The additional entry will read, “CONV SET ASIDE & DISM PER PC 1203.4.” Many people then remark, well that wasn’t a true “expungement,” it’s still on my DOJ record.
Unfortunately, there is no way to fully remove an adult conviction from a RAP Sheet. Even if a Governor’s Pardon was granted, the conviction would still be listed. There are only two ways to actually remove a RAP Sheet entry. The first way is to seal an arrest record under Penal Code section 851.8 for factual innocence. But in order to file a petition under this section there has to only be an arrest with no conviction, and it should be filed within two years of the arrest. Notably, sealing under Penal Code section 851.91 (which can be filed years after the arrest and doesn’t require showing factual innocence) adds a similar notation to dismissal but doesn’t remove the record. The second way is to seal a juvenile adjudication record. Apart from these options, the entry will remain with a new notation added showing the clean record relief.
A second question I am commonly asked is “why isn’t there a notation on my conviction showing dismissal, I had it dismissed?” The issue there is that the superior court of the county where the order was granted neglected to forward that order to the DOJ, or forwarded it without sufficient information to match the person’s record. This happens in a small percentage of cases. The remedy is to file an amendment request with the California DOJ. First, request the criminal history using form BCIA 8016RR which will require a livescan fingerprint. Once that report is completed and sent out to the requestor, which usually only takes a few days, review the record and if it is still lacking. If so, file a request to amend the record on the attached form at the end of the report; include the superior court order and any other related paperwork as exhibits. After submission, the DOJ will respond in three to six months with the amended report or provide the reason why the request was denied. If denied, there is an option to request an administrative hearing to further challenge the issue.
Attorney David Reagan helps people in Alameda County, Contra Costa County, and throughout the San Francisco Bay Area amend their records and obtain clean record relief. Mr. Reagan has over a decade of experience filing petitions to seal arrest records, expungements, and motions to reduce felonies or misdemeanors. He is well versed in firearm eligibility issues and dealing with unique problems that can arise with the DOJ or FBI record. Contact his office today for a free consultation.
