Skip to main content

Under the California Penal Code Section 851.8 PC, you may ask the court for a certificate that reports a clean criminal record if you were previously detained, arrested, or charged but never convicted. A tainted criminal record can adversely affect your career opportunities, child custody, adopting children, driving and other privileges, owning firearms, immigration, and many more consequences.

Ehline Law and our personal injury attorneys understand the impact and consequences of a criminal record, especially when you were innocent, acquitted, or never convicted. Our attorneys have explained the necessary information pertaining to factual innocence motions and the certificate of factual innocence in California.

What Are Factual Innocence Motions in California?

A factual innocence motion is a petition to the arresting Police Department and the court to destroy a person’s criminal record and deem them innocent of any illegal activity. 

The need for a petition may arise after you get arrested for a crime you did not commit, which can taint your criminal record and have long-term consequences on your life.

A successful factual innocence motion petition suggests that you are innocent and that there is no reasonable cause to believe that you are guilty or have committed the offense in the past, providing you with a clean slate that you should’ve originally had before the arrest.

Are Factual Innocence Motions Different from an Expungement?

An expungement proceeding is a court-ordered process in which the legal record of an arrest or a criminal conviction is sealed or destroyed, making the records nonexistent or unavailable to the general public. Although the records remain inaccessible to the general public, the sealed records are still available to law enforcement authorities.

In the case of a factual innocence motion, under Penal Code 851.8, the record is not available at all, as the petition results in the actual destruction of the record. In other words, your criminal record does not exist, meaning there is no indication of arrest for an underlying offense.

Why Would You Want to File a Petition for Factual Innocence?

In cases where you’ve been wrongfully accused and arrested for a crime you did not commit, your criminal record will show the arrest, and that information will be accessible to the public. 

When employers carry out a background check, they may come across the arrest record and decide not to pursue your application or hire you for the job even if you’re qualified and have experience.

Having your factual innocence motion granted means that you have a clean slate. When employers carry out a background check on you, they won’t see any details or arrests allowing you an equal employment opportunity.

Proving Factual Innocence

After your arrest, you may want to consider filing a petition for factual innocence with the law enforcement agency with jurisdiction over the offense under Penal Code 851.8 to avoid the consequences of an arrest record.

Your petition for factual innocence must include evidence to prove that the arrest made did not have any legal cause and that you were innocent of the crime the law enforcement agency arrested you for. 

Some of the examples of evidence you can submit when filing a petition for factual innocence may include the following:

  • Photographs and videos
  • Witness testimony
  • Surveillance or CCTV footage
  • Cell phone records and receipts
  • DNA

When proving that you’re factually innocent, the burden of proof lies with you, and you must prove that there was no need to make the arrest. On the other hand, the prosecutor must show in court that they had the necessary evidence to suspect you of the crime and therefore made the arrest.

After hearing the arguments and reviewing the evidence provided by both sides, the judge will then decide the following:

  • Whether there was a need for the arrest
  • Should they grant you your factual innocence?

Is There a Deadline for the Factual Innocence Motion?

The statute of limitations governs how long you have to pursue a factual innocence motion. In short, you have two years following the date of your arrest to file a petition for factual innocence with the arresting law enforcement agency.

Factual Innocence Motion Process

After filing the petition, the law enforcement agency has 60 days to respond to your petition. If they fail to respond or deny your petition, you may then pursue your petition in the Superior Court that has jurisdiction over your offense.

When you file a petition in the Superior Court, you need to serve the notices to the law enforcement agency responsible for your arrest and the prosecutorial agency responsible for prosecuting your case.

The Superior Court will set a hearing where you can either represent yourself or hire criminal defense attorneys to represent you in court. The petitioner must provide declarations, affidavits, and other important evidence to prove that they are factually innocent. Unlike criminal cases where the burden of proof lies with the prosecutor, here, the burden of proof lies with the petitioner, who must meet this burden and establish that there was no reasonable cause for the arrest.

The prosecutor can also present evidence to show that there was a reasonable cause for arrest or that the petitioner committed the crime for which they made the arrest. To rebuke the petitioner’s arguments, the prosecutor may provide police arrest reports, arresting police officer testimony, and other evidence.

If the judge believes they should grant the factual innocence motion, they will have your arrest record sealed for three years before being destroyed. During this time, you can let potential employers know that you don’t have a criminal background (since you’re now factually innocent) when they require you to provide information about it.

Schedule a Free Consultation with Ehline Law’s Top Lawyers

Under the California penal code section 851.8, the improper release of a sealed arrest is against the court order, with penalties for violations enforced by the District Attorney. You may also have the right to pursue compensation if the release of sealed documents were reckless and intentional.

If you’ve suffered harm due to the intentional release of sealed arrest records, contact us at (833) LETS-SUE for a free consultation, as you may be able to seek compensation, even punitive damages.

Firm Archive

Main Los Angeles Location

633 W 5th Street #2890 Los Angeles, CA 90071 (213) 596-9642.
Animation of injury lawyer, Michael Ehline Animation of injury lawyer, Michael Ehline

Michael Ehline

Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients. We pride ourselves on being available to answer your most pressing and difficult questions 24/7. We are proud sponsors of the Paul Ehline Memorial Motorcycle Ride and a Service Disabled Veteran Operated Business. (SDVOB.) We are ready to fight.