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Penal Code 851.8 PC – Petition for Factual Innocence

California Penal Code 851.8 PC – Petition for Factual Innocence Explained

If you were arrested but not convicted of a crime in California, you may be able to petition the court to seal the arrest record and declare you factually innocent under Penal Code 851.8 PC. This article provides an overview of the factual innocence law, how to petition for factual innocence, and the benefits of getting an arrest sealed.

What is Factual Innocence?

Factual innocence means the defendant did not commit the crime they were arrested for. Under Penal Code 851.8 PC, a person arrested but not convicted can petition the court to make a finding that they are factually innocent of the charges. If the petition is granted, the arrest is sealed from the defendant’s criminal record.

Sealing an arrest record under PC 851.8 provides several benefits:

  • The arrest is deemed to have never occurred, legally speaking
  • The defendant can answer that they have never been arrested for the sealed offense
  • The sealed record cannot be used against the defendant by employers, landlords, or licensing agencies
  • The record of the sealed arrest will not show up on background checks

In essence, a factual finding of innocence allows a person to truthfully claim they were never arrested after the record is sealed. It provides the maximum protection for an individual’s criminal record under California law.

When Can I File a Factual Innocence Petition?

A petition for factual innocence can only be filed if all of the following conditions are met:

  • You were arrested but not formally charged with a crime, or
  • You were charged with a crime but not convicted, and
  • The statute of limitations has run out or the charges were dismissed by the prosecution, and
  • You are factually innocent of the charges

If you were convicted of the offense, even if the conviction was later expunged, you cannot petition for factual innocence under PC 851.8. However, you may qualify for other record clearing remedies, like a certificate of rehabilitation.

How Do I File a Petition?

To petition for factual innocence in California:

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  1. Obtain copies of your criminal records, like the arrest report, complaint, etc.
  2. Fill out the proper forms – Petition for Finding of Factual Innocence (Judicial Council Form CR-181) and Order Sealing Arrest Records (Judicial Council Form CR-182)
  3. File the petition forms with the court in the county where you were arrested
  4. Serve the petition on the arresting agency and district attorney
  5. Attend your court hearing – the judge will review your petition and make a decision

The process seems simple, but a factual innocence petition can be complex. Working with an experienced California criminal defense lawyer improves your chances of success. An attorney can review the police reports and help present persuasive evidence of your innocence.

What Evidence Do I Need to Show Factual Innocence?

To convince the judge you are factually innocent, you need strong evidence showing you did not commit the crime. Examples of evidence include:

  • Alibi evidence – Records like work schedules, cell phone records, receipts, or testimony from witnesses showing you could not have committed the crime.
  • Misidentification – Evidence the victim or witnesses were mistaken, like differences between your appearance and the police description of the perpetrator.
  • Expert testimony – An expert witness, like a DNA analyst or forensic scientist, can testify that you did not commit the crime.
  • Police misconduct – Evidence that officers fabricated charges or conducted an improper investigation.

The stronger your actual innocence evidence is, the more likely the judge will grant your petition. Consult with an attorney to identify the best defenses and evidence to present at your factual innocence hearing.

What Happens at the Hearing?

At the factual innocence hearing, the judge will consider your petition, the evidence, and any opposition from the DA’s office. You may have to testify about your innocence. It is critical to have an attorney to examine witnesses and argue on your behalf.

If the judge finds you factually innocent, they will grant the petition. The arrest will be sealed immediately and you can legally answer that it never happened on applications, etc. The court will also send the order to the California DOJ to seal the arrest from your state criminal record.

However, if the judge determines there is insufficient evidence of factual innocence, they will deny the petition. You would then have to disclose the arrest on background checks and applications.

How Long Does a Factual Innocence Petition Take?

The timeline for a factual innocence case depends on the court’s calendar, but typically takes 2-6 months from filing the petition to the hearing date. If the petition is granted, the California DOJ seals the record within 30 days.

It is important to file for factual innocence as soon as possible after the charges are dropped or dismissed. The further away from the arrest, the harder it becomes to gather evidence and witnesses to prove your innocence.

Can a Factual Innocence Finding Be Appealed?

Yes, either party can appeal a factual innocence decision. If your petition was denied, an attorney can file an appeal to get the denial overturned. If the petition was granted, the prosecution can appeal as well.

The appeal must be filed within 60 days after the court’s decision. Appeals typically take around a year to resolve.

Consult an Attorney for PC 851.8 Help

Petitioning for factual innocence can be complicated, with strict eligibility requirements and high standards of proof. Having an experienced criminal defense lawyer handle the petition maximizes your chances of success and getting the arrest permanently sealed.

To discuss your case with an attorney, contact us online or call 888-327-4652 for a free consultation.

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