Criminal Defense of Immigrants


§ 3.35 A. Criminal History Reports

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During the client interview, counsel should ascertain the states in which the client has resided as an adult and obtain information suggesting whether the client may have state, federal, or motor vehicle convictions.  A criminal history report should be obtained from each jurisdiction in which the client may have a criminal conviction with immigration consequences.  If the client has several convictions, very often the probation report from the most recent conviction contains an excellent summary of the client’s criminal history in that jurisdiction.  Federal presentence reports include comprehensive summaries of convictions in all jurisdictions.


                The following sections give information concerning how to obtain criminal history reports from the Federal Bureau of Investigation, see § 3.36, infra; state departments of justice, see § 3.37, infra; and state departments of motor vehicles.  See § 3.38, infra.  Information is also given on how to correct errors in criminal histories.  See § 10.52(B), infra.




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