California Penal Code Section 851.8
Suppose you are simply in the wrong place at the wrong time and caught up in a sting operation. Or perhaps a bitter ex trumps up bogus domestic violence charges. Or even worse, an eyewitness places you at the scene of a crime that you did not commit.
When a horrific crime occurs, police officers and prosecutors are often under a lot of public pressure to arrest a suspect. As such, they may arrest the wrong person and falsely accuse him or her of the crime. Yet even when the charges are later dropped or dismissed because of lack of evidence, your arrest record can linger-jeopardizing your future and your reputation.
Even if you are never convicted of a crime, simply being arrested and charged with a crime is enough to show up when potential employers run a background check. When a potential employer or individual realizes that you have been arrested for child pornography, sexual assault, or even domestic violence-this knowledge could cost you a job.
But you were innocent! What can you do?
Luckily, California Penal Code Section 851.8 allows an attorney to make a motion for a petition of factual innocence. Unlike Expungement, this is a far superior method for wiping your criminal record clean. Under this petition, all arrest records would be wiped from your record - as long as the courts find that "no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made."
Petition for Factual Innocence vs Expungement
When you are convicted of a crime and you want to have the finding of guilt set aside and a not guilty plea entered you will need to file a petition for an expungement under Penal Code section 1203.4. If granted, this allows you to report to a prospective employer that you have never been arrested or convicted of a crime. If the employer learns of the conviction that existed against you before the expungement the employer is barred under federal law from using that information to discriminate against you in the hiring process.
However, if you were arrested, or arrested and charged with a crime but the charge was dismissed, you were found not guilty of the offense, or the charge was never filed, you can petition the court to seal your arrest record. This process is called a petition for factual innocence under Penal Code section 851.8. If granted the court must inform amongst other entities the California Department of Justice and any law enforcement agency responsible for your arrest to completely seal your arrest record. When a court grants a petition for factual innocence, the court essentially agrees that you should've never been arrested in the first place and ALL records of your arrest are destroyed. This allows innocent individuals to move through life unencumbered by the arrest. After all, you shouldn't have to suffer unnecessarily because the police arrested the wrong person.
A petition for factual innocence is even better than getting an acquitted at trial! An acquittal at trial simply means that the jury found you "not guilty" beyond a reasonable doubt. When a court grants a petition for factual innocence, they are stating that you are innocent of the crime. As a result, all arrest and prosecution records are not just sealed-they are destroyed.
Proving you are Innocent
It is not easy to prove that you are factually innocent of a crime-even if you were never convicted and the charges were dismissed. If the courts still believe that enough evidence was gathered that showed you may have committed the crime, your motion for factual innocence may not be granted. You and your criminal defense attorney bear the burden of proving that there was no reasonable cause to believe that you committed the offense. Although, the good news is that the court can consider evidence that was learned after the arrest in establishing the client's innocence.
To establish your innocence, your San Mateo criminal defense lawyer must present evidence to the courts to contradict any evidence that was gathered by the prosecutor. This could include live testimony, expert witnesses, forensic experts, and more. This level of investigation requires an experienced and skilled criminal defense lawyer. If your lawyer is unable to establish your innocence, it is unlikely that the courts will grant your petition for factual innocence.
Time is Critical When Filing Petition for Factual Innocence
It is important that you do not delay when filing a petition for factual innocence. In the State of California, you only have 2 years from the date of the arrest or the filing of the accusatory pleading, whichever is later, to file your petition. If it has already been 2 years since your arrest you may be able to file this petition by convincing the court you have good cause for the late filing. (Cal. Pen. Code § 851.8(l).)
San Mateo Criminal Defense Lawyers
At Ahmed & Sukaram, our San Mateo criminal defense lawyers know how important it is to be exonerated after being accused of a crime. If you wish to pursue a petition for factual innocence after being charged with a crime in Redwood City, San Mateo, San Jose, Palo Alto, or anywhere in the State of California, contact the dynamic legal team of Ahmed & Sukaram immediately. You are not alone-call Ahmed & Sukaram today at 1-866-477-0965 or email us through this site in order to set up a no obligation consultation.