March 14, 2018 5:53 am Published by

Filing a Petition for Factual Innocence in a Criminal Case – California Penal Code Section 851.8

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 record. This is where the filing of a Factual Innocence Petition comes in. Under Penal Code Section 851.8 in Los Angeles, you can file this Petition with the police department to ask them to seal and destroy your arrest record. When you file this motion, you have to serve a copy on the prosecuting agency as well, and basically what you’re doing is 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 course of the last twenty-five years, the police departments across Los Angeles county, 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, then they can be sued for illegally arresting a person. The person can say, hey look, they granted 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 jail. 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 in Order to Be Found Factually Innocent Pursuant to Penal Code Section 851.8?

Basically, 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 pull you over, they arrest you and they determine because they have video evidence that you had nothing to do with robbing the bank and 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 easily. 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 highly unlikely they’re going to get rid of that arrest pursuant to this Penal Code Section because the police are going to 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 pursuant to 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 litigated 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 by the Police Department in Los Angeles

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 very difficult road to hoe and a very serious crime in one of the local courthouses. I got a not-guilty verdict in Pomona which is a very conservative courthouse and I then filed a Petition for Factual Innocence on behalf of my client and the Judge denied it. He basically 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 up-hill battle that you’re up against, and I always tell my clients that when they come in that it is very difficult to get these motions granted by the police or the court. Don’t get your hopes up.

But if you are going to file one of these motions, then obviously you want to sit down with a qualified attorney who knows what they’re doing, who has had success with these motions and knows how to file them. 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.

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