Factual Innocence Petition: Filing a Petition to Seal under Penal Code section 851.8
A record of an arrest, even when the case is never pursued by the district attorney, or when the case is dropped after it is charged, still remains on a criminal record. A petition to seal an arrest record under Penal Code section 851.8 is the best way to completely seal and destroy an adult arrest record. The other option is a petition to seal under Penal Code section 851.91, which provides more limited relief but it is easier to obtain. The Law Office of David Reagan is reliable and compassionate with experience proving factual innocence in tough cases.
What is a petition to seal an arrest record?
Under Penal Code section 851.8, within two years of an arrest or filing of a complaint, absent good cause for delay, the arrestee may file a petition to seal arrest record with the police department and/or the superior court. The petition must demonstrate that the arrestee is factually innocent: there is no "reasonable cause" to believe the person committed the crime for which he or she was arrested.
If the petition is granted, the "court shall order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency which arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this section to seal their records of the arrest and the court order to seal and destroy the records, for three years from the date of the arrest and thereafter to destroy their records of the arrest and the court order to seal and destroy those records."
After the records are sealed, "the arrest shall be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence."
Who is eligible?
Anyone arrested for an offense that was never charged, meaning the district attorney never filed a complaint with criminal charges.
Anyone arrested for an offense that was charged by complaint or information, but the district attorney eventually decided to drop the case without requiring a guilty plea, no contest plea, or a trial.
Anyone arrested for an offense that was charged by complaint or information, but proceeded to trial and either the jury acquited or the jury hung. Even if there was a jury trial with an acquittal, the two year bar to file a petition to seal applies, so if the case is taking a long time to go to trial, it may be necessary to file a petition to seal arrest record prior to trial to preserve the right.
What are the requirements?
The first step is to determine whether the petition needs to be filed first with the police department or first with the superior court. If a person was charged and then the charges were dropped, or the person was not convicted at trial, the petition should be filed with the superior court. If the person was never charged in the first place, the petition should first be filed with the arresting police department. After waiting 60 days for a response from the police department if the statute of limitations on the underlying arrest has expired, or after receiving a response with a denial, the petition can be filed in the superior court.
In order to establish “factual innocence” under Penal Code section 851.8, the petitioner has the initial burden of establishing that, “no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.” In other words, “the arrestee [ . . ] must establish that facts exist which would lead no person of ordinary care and prudence to believe or consciously entertain any honest and strong suspicion that the person arrested is guilty of the crimes charged.” (People v. Mathews (1992) 7 Cal.App.4th 1052, 1056.)
If the court finds the petitioner has made this showing, the burden shifts to the district attorney to show “reasonable cause exists to believe” petitioner committed the crime for which he or she was arrested.
The petition will be granted if the district attorney cannot meet this burden.
To establish factual innocence, a petitioner can argue the facts are insufficient to show reasonable cause, using either new facts, previously unknown facts, or agreed upon facts. The petition could show that the facts are weak and contradicted, or petitioner can cite to the elements of the alleged crime to show that the established facts do not meet the elements necessary under the Penal Code to prove the crime.
If there are two sides to a story that each appear reasonable, in a normal case it will not suffice for a petitioner to merely claim that their side of the story, which showed innocence, is correct. There needs to be a fatal flaw in the story of the other side or the other side needs to agree that the statements to law enforcement were a lie, exaggerated, or misstated.
What are the benefits?
Unfortunately, without a court order to seal and destroy, many public records reflect an arrest, even if the district attorney never filed any charges. Employers, members of the public, and the government can often view an arrest record without any hindrances. A petition to seal under Penal Code section 851.91, which is easier to obtain, will stop the public from viewing some of these facts of the arrest.
The arrest record, if sealed and then destroyed after three years, will be removed completely from the arrestee's record, and "the arrest shall be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence." A benefit for employment, licenses, immigration, and personal benefit, a finding of factual innocence is a judicial finding that the arrest should never have occurred in the first place.
Why hire an attorney?
To be successful, a petition to seal an arrest record must be filed in a timely manner and must be presented with relevant exhibits, factual arguments, and legal claims. While some individuals can accomplish this without assistance, an attorney can help make the arguments precise and compelling.
For individuals with old arrests where more than two years has passed since the arrest or filing of a complaint, the motion will need to contain a solid argument to the judge that there was good cause for the delay.
The Law Office of David Reagan can make the petition to seal process a great deal more convenient and less confusing.
