Please help

[G.A. Heath]

The arrest should remain on the record, unless something hokey is going on with their record keeping. My advice is to consult a lawyer.

[The Annoyed Man]

Everything that he was charged with is gone nothing will show up on his record and he revived his pistol back and I will get the bond money back that I put up for him to get out. Either way I don't think we were going to file a civil suite because they are very costly and not very rewarding in the end. So no attorney needed at the station plus I know enought about the legal process to get by on stuff like that. Thank you all for your comments suggestions and support.

That's good news, but have you had to pay the attorney anything so far? If so, then the police ought to be responsible for reimbursing you for that as well.

If your cousin had actually broken the law and they chose to drop the charges, then any attorney fees are on you. But if the police broke the law by falsely arresting you on charges which cannot legally exist and which cannot be prosecuted because you have not broken any laws, and that winds up costing you some attorney money, then as far as I'm concerned, the police department owes you a full refund of all of your costs.

If they do not refund those attorney fees, then sue them. I love my police department. They are very good and very professional. But if they make a mistake and it costs me significant money, then they don't get to stomp around on my rights without it costing them whatever amount it takes to make me whole again. Mind you, I said "whole," not "profitable." I don't think I deserve any more than it costs me. So that would equal all money I paid, plus any lost wages if I spent time in jail during work hours on false charges. If I could not afford bail without involving a bail bondsman, then the total amount owed includes whatever I lost to the bail bondsman to post bail. They should not be allowed to make mistakes that cost me money without full restitution of all my costs associated with their mistake. I would not seek punitive damages - that's for whiners - but I would seek reimbursement of any and all costs associated with the false arrest, including bail, plus court costs to recoup them if they did not willingly pony up for all those costs.

The reason this is important to do is that failure to pursue it allows a precedent of heavy-handed unaccountability to be established. If such behavior causes the department financial pain, then they won't do it anymore. It's that simple.

[WildBill]

The arrest should remain on the record, unless something hokey is going on with their record keeping. My advice is to consult a lawyer.

I don't think they can just hit the "delete key" and have the records disappear. In the future, if he applies for a CHL and doesn't list this arrest, his application may get denied. IMO, this would be the ideal time to apply for expungement of the arrest, but again IANAL.

[glbedd53]

Wouldn't be right for it to cost you anything. It's bad enough it cost you time and inconvenience. What if he had been going someplace really important? I know you can't get that back but it wouldn't have mattered where he was going, he would been arrested anyway. I wouldn't let them off any easier than I had to.

[WildBill]

Wouldn't be right for it to cost you anything. It's bad enough it cost you time and inconvenience. What if he had been going someplace really important? I know you can't get that back but it wouldn't have mattered where he was going, he would been arrested anyway. I wouldn't let them off any easier than I had to.

It may not be right, but there isn't much that can be done about it. He got an apology, and that's probably all he will get.

[glbedd53]

I think you're right, but I would want to hear it from a lawyer. I'm just talkin about getting back whatever it cost him in $$$

[JJVP]

They said because it's a newer law and it's a gray area they made a mistake and their sorry.

What a bunch of Barbra Streisand. The MPS was passed in 2007, nothing new and nothing "Grey" about it. They just don't have a clue.

[glbedd53]

Not as unusual as you might think. One of the high ups in the PD in this town didn't have any idea (until I told him) about the change in the law that allows for carry in the vehicle without a CHL. I understand there are a lot of law changes to keep up with. I think if I was a LEO trying to arrest someone for that and he asked me to get a second opinion because he knows the law has changed, I think I could spare a few minutes to check. It would save a lot of trouble for both of us.

[Keith]

Just wanted to add a personnel expierence. Brother-in-law gets busted at 17 with a m/t beer bottle in car. He had no booze in his blood. He was still arrested for a minor in posession.

I know crazy. Anyway doesnt go to to court thanks to lawyer and all charges are dropped and told it will not be on his record. After leaving the Marines after 4 years he gets into police work and then gets into Secret Service attempting to work for them. He is told by his lawyer that he doesnt have to mention anything about the arrest. Its as if it never happened.

He is a decorated military man. Everything is going great and looks like he has a good chance of getting in with the SS. Then they find out he has a PAST involement when he was in High school with having a mt beer bottle in the car and was arrested. End of storey he is dropped from the process. My expierence is that an arrest never goes away! The military and his police job knew nothing of his past issue but the SS sure found out about it.

I also agree that a man or women should not have to pay one penny out of his/her pocket for a lawer when they did nothing wrong. This will continue to happen until people start standing up and fighting this. Im pro police also and work with them all the time but wrong is wrong. If I make a mistake at my job I also have to answer for it. None of us get a free ticket do we.

Welcome and good luck!

[WildBill]

Just wanted to add a personnel expierence. Brother-in-law gets busted at 17 with a m/t beer bottle in car. He had no booze in his blood. He was still arrested for a minor in posession ... Anyway doesnt go to to court thanks to lawyer and all charges are dropped and told it will not be on his record. After leaving the Marines after 4 years he gets into police work and then gets into Secret Service attempting to work for them. He is told by lawyer that he doesnt havent to mention anything about the arrest. Its as if it never happened.

Even though a record is legally expunged it never truly goes away. When applying for certain jobs such as LEOs, FBI, Secret Service, security clearances, etc. it will show up and if you do not disclose it, it can cause issues. Most applications for these type of positions will state that you have to include expunged or sealed records when listing arrests. I never understood the rational for listing arrests if you were not convicted. I was "taught innocent until proven guilty" so why should you have list an arrest if you were not convicted?

[chartreuse]

Just wanted to add a personnel expierence. Brother-in-law gets busted at 17 with a m/t beer bottle in car. He had no booze in his blood. He was still arrested for a minor in posession ... Anyway doesnt go to to court thanks to lawyer and all charges are dropped and told it will not be on his record. After leaving the Marines after 4 years he gets into police work and then gets into Secret Service attempting to work for them. He is told by lawyer that he doesnt havent to mention anything about the arrest. Its as if it never happened.

Even though a record is legally expunged it never truly goes away. When applying for certain jobs such as LEOs, FBI, Secret Service, security clearances, etc. it will show up and if you do not disclose it, it can cause issues. Most applications for these type of positions will state that you have to include expunged or sealed records when listing arrests. I never understood the rational for listing arrests if you were not convicted. I was "taught innocent until proven guilty" so why should you have list an arrest if you were not convicted?

That's always confused me too. It's different in England, precisely as you say. OTOH, in Soviet Russia there was probably a box to check if you ever looked at the local Party Chairman's wife funny.

[srothstein]

I wanted to clarify two points that have come up. There seems to be some question about the arrest and some question about the liability of the department.

First, how the arrest can affect the person. It is true that the arrest will be on his record forever unless it is expunged. It should never cause him any harm since there is no conviction to go with it, but many people still operate under the theory of an accusation is equal to guilt. The statute of limitations on a misdemeanor is two years, which means that the Dalhart PD could file the case again any time in the next two years. I doubt that would happen based on the facts stated in the thread. But, it also means the record cannot be expunged for two years, because the courts will only expunge the record when the law says it is no longer applicable. This is all explained in Article 55 of the Code of Criminal Procedure. When an expunction is ordered by the court, every department or agency with any record of the offense (in this case, the PD, the Sheriff's office, DPS, and the FBI) are ordered by the court to go through all records and remove the person's name and any information identifying the person or the criminal charge or arrest. If any person reveals any information about the arrest after it has been expunged, they are guilty of a class B misdemeanor. This charge is usually taken seriously by the D.A's and courts I know of, since they really do intend to protect the innocent. The law specifically states the person arrested may deny the arrest or expunction order even exists, unless he is testifying in a criminal court proceeding under oath about an arrest that the expunction order concerns, in which case he is to answer simply that it has been expunged.

What this means to me in this case is that I would recommend that the person go to court in two years to get the record expunged. I would not worry too much more about it until then, but reveal the arrest if asked in any official type of proceeding, including job applications. They may not take action based on the arrest, but they can take action for not disclosing it (lying). To lessen the future costs, I would probably write a letter to the Chief, Mayor, and city attorney letting them know that you understand the mistake and expect the city attorney to represent you in an expunction proceeding as soon as it is legal to file. A reasonable attitude with the city should get a reasonable response. If they do not, you MIGHT have a possible civil suit to recover the costs of the expunction hearing when it occurs (but there is no cost yet so no liability on it yet).

Second, I wanted to explain why there is limited chance of winning the liability suit against the police. The arrest was clearly wrong, but one of the things necessary to prove in the court case is the intent of the officer. If the officer was simply mistaken about the law, he is not liable. A 1983 suit requires proof of intent to violate the civil rights. This means it would require proof that the officer KNEW what he was doing was wrong and did it anyway. This might even be true, but it is a very hard to prove. When you read the court cases that establish new legal precedent, you will find the cops are not usually liable because the law was not clearly established at the time. Yes, I know this law was clearly established, but the principle of the officer knowing it applies. This is one of the more serious flaws in our courts, but to be honest, the old saying about ignorance of a law not being an excuse is just an old saying and not a real legal principle. We do need to improve the requirements for training of the police, especially on how we keep them up to date on the laws.

Remember that this is just my opinions based on my experiences with the criminal justice system. I am not now, nor ever have been, a lawyer. I may not be accurate in the details of how things work or my interpretation of the law. My advice is not to be construed as legal advice, and the best advice is still to discuss this with your lawyer (the expunction part was probably not discussed earlier)..

[chartreuse]

Steve - thank you for a comprehensive and well written explanation of two key points. The first, in particular, was very educational for me.

[ninemm]

How do you revive a handgun?

[Pawpaw]

How do you revive a handgun?

You use CPR... Confiscated Pistol Resuscitation.