When someone has been arrested and sent to court, but no complaint is filed against them—in other words, no charges are filed against them—the question becomes, do they have any way to expunge the arrest record that will ultimately show up when people check their history?

Here's where the Factual Innocence Petition can be a beacon of hope. Under Penal Code 851.8 PC, you have the right to file this Petition with the police department, requesting them to seal and destroy your arrest record. This could be the key to a fresh start, free from the shadow of past accusations, and a chance to move forward with a clean slate.

You have to serve a copy to the prosecuting agency when you file this motion. You're asking them to expunge that arrest record – 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, based on my experience over the last twenty-five years, is that police departments across San Fernando and Van Nuys, CA, and, I assume, across California, will not grant these motions.

I think that often, it's a political reason because they feel that if they grant it, they could be sued for illegally arresting a person. The person can say, 'Hey, look; they gave it, sealed it, and destroyed it because they were wrong. ' They should never have 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, colleagues, and others. So, the police departments generally will not grant this motion.

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

You will need to demonstrate convincingly that they should not have arrested you or that they arrested the wrong person. In other words, you were doing everything correctly.

For example, if somebody robbed a bank, the police were called out. You matched the description of a getaway car, so they pulled you over, arrested you, and determined, based on video evidence, that you had nothing to do with it. 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 concern, and we will not grant your petition.

When it comes to filing a Petition for Factual Innocence under Penal Code Section 851.8, the importance of legal representation cannot be overstated. Without the expertise of an attorney, the chances of your petition being granted are slim. The correct filing and prosecution of this petition are crucial, and any misstep could significantly reduce your chances of success.

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 received a not-guilty verdict in Pomona, a very conservative courthouse, and subsequently filed a Petition for Factual Innocence on behalf of my client. However, the judge denied it.

He said, "Listen, based on the case law, your client doesn't meet the standard necessary for us to seal and destroy his record and find him factually innocent." That gives you an idea of the uphill battle you're facing. I always tell my clients that it is challenging to obtain these motions granted by the police or the court when they are presented. Don't get your hopes up, but be prepared for the challenges ahead.

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.