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Factual Innocence

Factual Innocence refers to a remedy in the criminal justice system whereby an innocent person falsely arrested and charged with a crime but never convicted might have their California arrest records sealed and destroyed under Penal Code section 851.8 if the following scenarios apply:

  • You were arrested for a crime but the prosecutor declined to file a criminal case;
  • You were initially charged with a crime but the criminal charges were ultimately dismissed in court;
  • You were charged with a crime but ultimately found not guilty in a jury trial.

You can petition (Factual Innocence motion) a court to have your arrest record sealed and destroyed and if successful all records relating to the arrest including the police report, suspect's photo, fingerprints, criminal charges, details of the crime and notes and observations of the arresting officer will be completely eliminated and not appear on any criminal background investigation. The arrest is deemed never to have occurred [California Penal Code Section 851.8(b)]. In addition, you can confidently and legally answer “no” if asked whether you have ever been arrested.

The Factual Innocence motion should be filed within two (2) years after the date of arrest or accusatory pleading. The court sometimes may permit later filing if there is good cause (enough grounds for filing beyond the two year limit). Not all Factual Innocence motions are granted by the court. If the motion is granted then the arrest records are ordered to be sealed for three (3) years. After the three (3) years the entire records containing the arrest will be destroyed. The burden on the arrestee (person filing the motion) in order to prevail on the Factual Innocence motion is high. An arrestee is “factually innocent” only if no reasonable cause exists to believe he or she committed the offense [California Penal Code Section 851.8(b)]. The evidence must show that “no person of ordinary care and prudence [would] believe or conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty…” [People v Adair 129 CR2d 799 (2003)]. If the court believes the defendant was responsible for or contributed to the crime he or she was arrested for, then there would be no finding of factual innocence. A case that was ultimately rejected or not filed by the prosecutor's office does not automatically equate to factual innocence. Some evidence of a crime, but just not enough to ultimately obtain a conviction, does not equate to factual innocence. A skilled and experienced California criminal defense lawyer in your corner will improve your chances of prevailing on your Factual Innocence motion

How Can The Lawyers At Stephen G. Rodriguez & Partners Help

The lawyers at Stephen G. Rodriguez understand that having an arrest on your record for a crime you did not commit can have devastating consequences on your life including your future prospects and opportunities. If you believe you were wrongfully arrested and charged for a crime we can help you seal and destroy your arrest record by filing a Petition for Factual Innocence. We invite you to contact our office for an in-person no-charge consultation to discuss the facts surrounding your case. We bring over 75 years plus of combined criminal law experience and we can put that experience to work for you.