Every time a person is arrested for a crime in California a record of that arrest is created. It does not matter if the person is actually guilty of the crime. Arrest records in California are available to the public. This means that if you have been wrongfully arrested in California, a record of that arrest exists and could be seen by anyone who wants to find it.
In most cases, this may not be a problem. However, if you submit an application for a new apartment or want to switch jobs, someone may run a background check on you. Records of your arrest will show up. The record of your wrongful arrest could cause you to lose out on that great new place or that great new job.
What can you do if you have been wrongfully arrested in California? If you are innocent of the crime you can petition the court to have the record of your arrest destroyed. This will prevent it from showing up in public searches and background checks. If you have been arrested for a crime you did not commit you should contact an attorney to learn about how you can file a petition for factual innocence.
What does it mean to be factually innocent?
Factual innocence is exactly what it sounds like. It means that you are innocent of the crime that you were arrested for committing. When you are arrested for a crime that you did not commit you can petition the court to have your record sealed and destroyed. This requires filing a formal motion to destroy your record with the police department that arrested you. The police department has 60 days to respond to your request. If they fail to respond or deny your request, you can then file a motion with a court that has jurisdiction over the matter. Hiring an experienced San Diego criminal defense attorney to handle your petition(s) is the best way to get rid of the record of your arrest.
How do you prove factual innocence?
When you file a petition for factual innocence pursuant to Penal Code 851.8 PC, you are essentially asking the court to find that there was no reasonable cause for your arrest. You have the burden of proof. This means that it is your responsibility to persuade the court that you were innocent of the crime and should not have been arrested. You will need to provide evidence to help support your argument. Evidence that can be helpful when filing a factual innocence motion include:
- Video surveillance footage;
- Witness testimony or statements;
- Police reports;
- Travel records; and
- Any other evidence that may help to prove that you could not have committed the crime.
If the court believes that you have presented a valid and persuasive argument it will ask to hear from the state. The prosecution will then have the burden to prove that law enforcement did, in fact, have reasonable cause to arrest you for a crime. The court will take both arguments into consideration and make a decision.
What happens if my petition for factual innocence is approved?
If a court believes that there was no reasonable cause for your arrest and that you are factually innocent it will issue an order to have the record of your arrest destroyed. The police department that executed the arrest and the Department of Justice will be required to seal your arrest record for three years. During this time the records will not be available to the public, nor will they show up on background checks. Once this three year time period has elapsed the records must be physically destroyed. It is at this point in time that any record of your arrest will no longer exist.
What type of information is included in an arrest report?
California law requires that certain information is contained in a record of arrest. All of this information is available for public consumption. This means that if you were wrongfully arrested for a crime that you did not commit, the following information would be available to the public:
- Your full name and occupation;
- A physical description including your hair and eye color, sex, height, and weight;
- Your date of birth;
- The time, date, and location of the arrest;
- Factual circumstances surrounding the arrest;
- The time and date of the booking;
- The amount of bail set for your release; and
- Any charges that have been filed against you.
If you have were arrested for a crime that you did not commit it may be in your best interest to file a petition for factual innocence.
When can I file a petition for factual innocence?
Petitions for factual innocence can be filed even if you were formally charged with a crime. There are three situations when you can file a petition for factual innocence. You can file a factual innocence motion if:
- You were detained or arrested but not charged with a crime;
- Charges were filed but dropped;
- You were found not guilty of the charges against you.
Petitions for factual innocence must generally be filed within two years of your arrest or the date when you were charged with a crime. In some cases, a court may allow you to file a petition at a later date. However, you have a better chance of successfully getting your arrest record thrown out if you file as soon as possible.
Is factual innocence different than expungement?
Yes. In California, you can petition to have your record expunged if you have been convicted of certain crimes. However, an expungement will not erase the record of your arrest. Once your record is expunged you can deny having been convicted of a crime. However, a record will still exist. A successful petition for factual innocence will result in the actual destruction of your record.
Speak with an experienced California factual innocence attorney.
Have you been arrested for a crime that you did not commit? If so, do not hesitate to contact us today. An attorney can help you file a petition for factual innocence and get the record of your arrest destroyed. Once your factual innocence is established, you can rest easy knowing that future employers and landlords will not see that you were wrongfully arrested.