the next step…..
Petition the court to seal they arrest record, sue or do both…. The following is from an attorneys website, but you get the basic steps what will be necessary to clear your name.
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Once again, this step is for those people who are denied relief by the police. However, this is the first and only step for those individuals who
had their cases dismissed in court after charges were filed, or
were acquitted by a jury.
And on that note, if (at the time of the dismissal) the judge believes the defendant is factually innocent, he/she may (with the prosecutor's consent) grant the relief on his/her own motion. Similarly, if (at the time of the acquittal) the judge believes the defendant is factually innocent, he/she may simply order the records sealed and destroyed.6
What does "factually innocent" mean?
As San Francisco criminal defense attorney Jim Hammer7 explains, "In order to declare you 'factually innocent', the arrest record must exonerate you, not merely raise a substantial doubt as to your guilt".8
And according to the California Court of Appeals, a finding of factual innocence shall not be made unless no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.9 "'Reasonable cause' is defined as that state of facts that would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime".10
The burden to prove factual innocence is on the defense
Assuming that the judge does not initiate the motion -- and you must petition the court for the requested relief -- the burden is on you to establish that there was no reasonable cause for your arrest. And, unlike the strict rules of evidence that govern a jury trial, California law allows the judge to consider a wide variety of evidence when ruling on this issue.
The court may evaluate police reports, affidavits, and any other evidence which is "material, relevant, and reliable". This even includes evidence that the court previously suppressed pursuant to a Penal Code 1538.5 motion to suppress evidence, as well as any facts that were disclosed after your arrest.
If you meet your burden, it then shifts to the prosecution. If they wish to challenge your motion to seal and destroy your records, they must prove that reasonable cause did, in fact, exist.11 And both sides are entitled to appeal the court's ruling.12
The importance of hiring a skilled California criminal defense lawyer
Because the judge has so much discretion in deciding whether to grant or deny your motion to seal and destroy your California arrest records -- and because the judge can deny your motion with prejudice so that you may not re-file your request -- it is critical to hire a skilled California criminal defense attorney.
I know I should leave the scab alone, but am compelled to pick at it to either speed the healing process or irritate the wound.
MZ got popped for 25400 (concealed weapon) while transporting an unloaded firearm in a locked case, spent good money in defense of a false arrest and flaunts his acquittal. Open carry of a locked case (whatever its shape) is not open carry....and certainly a legal victory against a false charge of concealed carry does not vindicate open carry in the slightest. It does not advance gun rights in California at all.
If anything, it only reinforces the fact that police and DA's will use the spaghetti noodle test when pursuing charges involving firearms - even when one has an encounter with police having committed no crime.
Were it I who had been stopped by police in MZ's place, I would have refused consent to search my locked case. Instead - according to the police report which MZ has published here (
http://www.scribd.com/doc/190796224...County-Superior-Court-Case-No-SM382036#scribd) he gave the officer the key to the case and consented to the search. If they forced the case open, it would have at least had the benefit of establishing that police cannot conduct a search on the suspicion that the case might contain a firearm - giving gun owners an out for warrantless searches of gun cases under PC 25850.
Pretty tough to establish harm, when you give police everything they want.