A finding of factual innocence is a way for people who have been arrested but were not charged, or were arrested and not convicted to remove the record of arrest from law enforcement databases.  It is a petition to law enforcement and the court to seal and destroy a person’s criminal record with respect to an arrest that did not result in a conviction and in which the person was “factually innocent” of the crime of arrest.  This is different than an expungement as it requires actual proof of innocence, rather than a conviction for eligibility.  If you were convicted of a crime you may still be eligible for an expungement.

Basic Information

The benefit to a finding of factual innocence is that the person will no longer have any record of the crime including that an arrest or detention was made.  This is significant because even if you are not convicted of the crime of arrest, thorough background checks will still show arrests and detentions.  Though these arrests without conviction are prohibited from being used in the decision to hire a person by a prospective employer, they can result in a tarnished record for a person who is innocent.  Complete removal of any trace of the arrest will prevent its future use.

The Process

In most cases the procedure requires first petitioning the arresting law enforcement agency.  If the petition is denied then the second step is to petition the court.  The court will hold a hearing where we present evidence on your behalf of your innocence.  The burden of proving factual innocence is a different standard than what is necessary to convict a person.  A case that has been dismissed because of weak evidence or inadmissible evidence is not the same as proof of factual innocence.  You must be able to actually prove your innocence, not that the prosecution can’t prove your guilt.  A finding of factual innocence “. . .shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.” Penal Code § 851.8(b)   Therefore, if there exists reasonable cause (not proof beyond a reasonable doubt) to believe the person committed the crime, the petition will not be granted.

It is worth noting that timing is of the essence with regard to these petitions: A petitioner has two years from the date of the arrest or filing of the accusatory pleading to be eligible for relief.  However, upon a showing of good cause the court may waive the time restriction. Penal Code § 851.8(l)

What You Should Do

Call Criminal Defense Lawyer Matthew Luzaich for a free consultation regarding your eligibility for a finding of factual innocence.  Removing a detention/ arrest/ charge from your criminal record is the only just thing to do when you are factually innocent and have been wrongfully arrested or accused by law enforcement and the judicial system.  Call for free today.

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