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Petition for Factual Innocence

A criminal record in California is not only for those who have been convicted and sentenced to a crime. A criminal record contains information about an individual's arrest, criminal charges filed, and criminal prosecution. This means that even if you were never found guilty of any crime, you may have a criminal record.

The good news for anyone arrested but not convicted of a crime is that there is a way to file to have your arrest record sealed and even destroyed. Employer or housing background checks won't turn up any criminal arrest record and if a job application asks about any arrest or conviction, the applicant can indicate they have not been arrested or convicted.

An innocent person should not have to suffer prejudice for an arrest if they were never found guilty of any crime. If you were arrested but never convicted, talk to your experienced East Bay criminal defense attorney about your rights to have your arrest record sealed and destroyed.

Petition for Factual Innocence Under PC 851.8 and PC 851.87

A petition for factual innocence is a criminal court motion to have an individual's arrest records sealed and eventually destroyed. This is not available for all arrest records. A petition for factual innocence is generally only available for criminal arrest records that did not end in a conviction. This includes arrests where:

  • The prosecutor never filed criminal charges;
  • Criminal charges were filed but later dismissed; or
  • The defendant's case went to trial ending in an acquittal.

Under California Penal Code 851.8, when a person has been arrested and no accusatory pleading has been filed, the person arrested may petition to destroy the record of the arrest.

When the law enforcement agency having jurisdiction over the offense determines the person arrested is factually innocent, they shall seal the arrest record for a period of three years from the date of the arrest. After 3 years, the arrest record and petition for factual innocence will be destroyed, along with the records associated with the arrest.

After the California court and law enforcement agency destroy the arrest records, the Department of Justice will also be notified that the petitioner has been found factually innocent. The DOJ and any law enforcement agency notified shall also seal their records of the arrest and destroy the records after 3 years from the date of arrest.

The initial burden is on the petitioner to show he or she was factually innocent of the charges.

Effective January 1, 2018, a new procedure is available for individuals who have been arrested (but not convicted) to have their records sealed and destroyed. Under California Penal Code 851.87, individuals arrested can have their records sealed where the defendant completed a diversion program, such as under Proposition 36 or deferred entry of judgment under PC 1000.

The individual may then petition the court to issue an order to seal the records pertaining to the arrest. The prosecuting attorney can request a hearing within 60 days of the petition.

If the order is made, the petitioner will be able to state that he or she was not arrested for that charge. Any questions about a prior criminal record can be answered that there was no arrest for that charge. However, if a peace officer requests information about an arrest, the individual will have to disclose that arrest.

Filing for a Petition for Factual Innocence

Generally, a petition for factual innocence must be filled within 2 years of the arrest. The law enforcement agency with jurisdiction has 60 days to respond to the petition. If the law enforcement agency does not respond within 60 days, it is considered a denial. The petitioner can then petition the court to grant an order to seal and destroy the criminal arrest record.

Expungement vs. Petition for Factual Innocence in California

An expungement is different than a petition for factual innocence. An expungement applies to criminal convictions were a petition for factual innocence applies to arrests.

Under California Penal Code §1203.4, when someone is convicted of an infraction, misdemeanor, or felony but not sentenced to prison, that individual can petition for a dismissal of their criminal charges. A dismissal will change your criminal record to show a dismissal instead of a conviction. However, the arrest and dismissal will still remain on their criminal record.

Job Opportunities After a Factual Innocence Petition

With a criminal arrest on your record, employers doing a background check will see the arrest and may assume the worst. Even if the applicant is innocent, having to explain the factual situation to an employer may make them move on to the next candidate who does not have a criminal record.

After an arrest record is sealed, a routine background check will generally not reveal the arrest. A sealed and destroyed arrest record will also mean the applicant can respond that they have never been arrested or convicted of a crime because that arrest no longer exists on their record. This can increase job opportunities and prevent an arrest from placing barriers on an innocent person's life.

Factual Innocence Attorney in Alameda County

East Bay lawyer Lynn Gorelick has more than 30 years of criminal defense experience fighting for clients to keep their records clear and avoid a criminal conviction. If you have already been arrested but never convicted of a crime in Alameda or Contra Costa County, contact East Bay Criminal Defense Attorney Lynn Gorelick about sealing your criminal record.

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