It is very important to ascertain the client’s exact criminal history, i.e., prior arrests and convictions.  First, it is necessary to verify the jurisdiction (i.e., the geographical location of the court) in which each criminal conviction occurred.  See § 5.9, supra.

 

            Information concerning the client’s exact criminal situation may be complex or highly technical, and the client’s memory may not be complete and accurate, especially if a span of years or extensive use of alcohol or drugs is involved.  Therefore, it is important to verify the details of the plea, conviction, and sentence by consulting official sources of information.

            This involves three primary efforts: (a) obtaining the official criminal history reports of the client’s arrests and convictions (the “rap sheets”); (b) obtaining certified copies of the plea and conviction records from the rendering courts; and (c) interviewing key participants, in addition to the client, who may have useful information.

 

            Because FBI information is often erroneous or incomplete, especially regarding the final result or disposition of a state arrest, it is wise to obtain a state “rap sheet” for every state in which the client may have one or more convictions.  This can be used as a guide to the complete list of convictions that may trigger adverse immigration consequences.  If the client may have convictions of traffic offenses, it is wise to obtain the DMV criminal history record as well, since the FBI and state Department of Justice criminal records may omit minor traffic convictions.  These convictions may nonetheless be misdemeanors which can potentially bar the client from receiving relief under the amnesty program, Family Unity, or Temporary Protected Status (TPS), [24] although they may be infractions or other offenses so minor they are not considered to be convictions of crimes at all.  See § § 4.9 ff., supra.

 

            An excellent self‑help manual with forms, addresses, and instructions concerning how to obtain federal, California, and local criminal records and how to correct any errors they contain is Warren Siegel’s How to Seal Your Juvenile and Criminal Records in California (7th ed. Sept. 2000), available from Nolo Press, 950 Parker Street, Berkeley, CA 94710.[25]

[24] See K. Brady, California Criminal Law And Immigration, Chapter 11 (2004).

[25] Make sure to obtain the most current edition.

Other

Under both California statute and case law, clients have a right to a certificate declaring that an arrest was but a detention, if the client was released before seeing a magistrate or the district attorney declined to file charges. Such a certificate can be obtained from the arresting agency. Cal. Penal Code sections 849 and 851.6(a) (when police release an arrestee without taking him before a magistrate, the arrest shall not be deemed an arrest, but a detention only and the arresting agency shall issue a certificate with such a declaration); Cal. Penal Code sections 849.5 and 851.6(b) (when no accusatory pleading is filed charging [arrestee] with an offense, any record of arrest of the person shall include a record of release. Thereafter, the arrest shall not be deemed an arrest, but a detention only.); see Loder v. Municipal Court (1976) 17 Cal. 3d 859, 869 (The Legislature has provided in effect that a substantial proportion of arrests not resulting in conviction shall not be recorded as arrests but simply as detentions.); see Raphael Goldman, A Little-Known Entitlement for Suspects who are Detained but not Charged, California Attorneys for Criminal Justice Nuggets.

INVESTIGATION OF CLIENT'S CRIMINAL HISTORY
It is now possible to obtain commercial criminal history reports concerning clients by using services such as ChoicePoint®, whose national file includes 20 million criminal records. Designed for employers, this service may also aid criminal and immigration lawyers in obtaining criminal history reports on clients who may not accurately remember their criminal histories. ChoicePoint National Criminal File searches multiple criminal record sources, including federal fugitive files, state and county criminal record repositories, ChoicePoint proprietary record information, prison parole and release files and public records from other state agencies. This exclusive criminal search includes access to more than 20 million criminal records across the United States. Results are available immediately. "Most background checks are conducted based on the counties and/or states where an individual lives or works. This means that criminal activity in other areas may go undetected," said David Cook, vice president, WorkPlace Solutions for ChoicePoint. "We recently re-screened 44,000 previously conducted background searches using the ChoicePoint National Criminal File and found convictions for murder, kidnapping, rape, arson and drug trafficking that were previously undetected under the customer's original 'local only' search request." The ChoicePoint National Criminal File is available only from ChoicePoint as a supplement to a customer's standard criminal search, beginning November 2001. ChoicePoint's complete suite of WorkPlace Solutions services includes: pre-employment screening; continued-employment background checks; identity verification; criminal background checks; drug screenings; physical exams; driver qualification file maintenance; education and professional certification verification; immigration and legal work status verification. For more information call 877-653-3302 or email client.satisfaction@choicepoint.net.

INVESTIGATION " CRIMINAL RECORDS
Courtlink, a service of Lexis Nexis, provides criminal history information. Thanks to Robert H. Gibbs.