When somebody has been arrested, and then they're sent to court, and no complaint is filed against them – in other words, no charges are filed against them – then the question becomes do they have any way to get rid of the arrest record that will ultimately show up when people check their history.

This is where the filing of a Factual Innocence Petition comes in. Under Penal Code 851.8 PC, you can file this Petition with the police department to ask them to seal and destroy your arrest record.

You have to serve a copy to the prosecuting agency when you file this motion. You're asking them to get that arrest record out there – send notice to the Department of Justice that there should be no record of your arrest. That way, if it's granted, the arrest record is sealed and destroyed, and if anybody checks your record in the future, they won't see it.

The problem with this whole concept is, in my experience over the last twenty-five years, the police departments across San Fernando and Van Nuys, CA, and I assume across California, will not grant these motions.

I think a lot of times, it's a political reason because they feel like if they grant it, they can be sued for illegally arresting a person. The person can say, hey, look; they gave it, they sealed and destroyed it because they were wrong. They should have never arrested me.

I was factually innocent, and therefore, I'm going to sue them because I had to spend a night in jail – or whatever time the person spent in prison. I was embarrassed in front of my family, my colleagues, etc. So, the police departments generally will not grant this motion.

What is the Test to Be Found Factually Innocent Under PC 851.8?

You're going to have to be able to show realistically that they should not have arrested you or that they arrested the wrong person. In other words, you weren't doing anything wrong.

For example, if somebody robbed a bank, the police were called out, you matched the description of a get-away car, they pulled you over, they arrested you, and they determined because they have video evidence that you had nothing to do with robbing the bank. It was, in fact, somebody else, obviously there; you are factually innocent.

There's no way that arrest is going to stay on your record. We'd be able to get it off quickly. If, on the other hand, you get in a big fight with your significant other and you're arrested for spousal abuse and taken down to the police station, and you have to post bail, then ultimately, they don't file any charges against you.

In my experience, it's doubtful they're going to get rid of that arrest under this Penal Code Section because the police will say there was a factual basis to arrest you. The fact that the prosecutors didn't file charges against you is not our problem, and we're not going to grant your petition.

So, the bottom line is that if you're going to try to file a Petition for Factual Innocence under Penal Code Section 851.8, you've got to have an attorney do it, otherwise in my opinion, you have no chance to get it granted because it has to be filed the right way. It has to be prosecuted the right way, and if it's not filed the right way, then I would say you have almost zero chance to get it granted.

What do you do if your Petition for Factual Innocence is Denied

After you file your Petition for Factual Innocence with the police agency that arrested you, if it's denied, your next move would be to file a motion with the court where your case would have gone and have that judge find that you're factually innocent and order the police department to seal and destroy your record.

Again, this is where you have to serve the prosecutors. They can object to it. They'll probably argue against it, and it's a tough road and a grave crime in one of the local courthouses. I got a not-guilty verdict in Pomona, a very conservative courthouse, and I then filed a Petition for Factual Innocence on behalf of my client, and the judge denied it.

He said, listen, based on the case law, your client doesn't meet the standard that is necessary for us to seal and destroy his record and find him factually innocent. So, that gives you an idea of the uphill battle you're up against, and I always tell my clients that it is tough to get these motions granted by the police or the court when they come in. Don't get your hopes up.

But if you are going to file one of these motions, you want to sit down with a qualified attorney who knows what they're doing, has had success with these motions, and knows how to file them. Call the Hedding Law Firm for help. Give them all the facts and details of your case, and then let them give you an honest opinion as to whether or not it's worth your money, time, and aggravation to file a Petition for Factual Innocence.