User:Dinday/factual innocence

There is a second variety of “expungement” relief in California that is considerably broader and more powerful than Penal Code Section 1203.4, by which a conviction can be vacated and dismissed. It is called a petition for “factual innocence” under Penal Code Section 851.8. This law applies to people who have not been convicted of the offense for which arrested, and the relief results in the arrest and court records being sealed for three years and then fully destroyed.

This relief is available to anyone arrested, but who was not convicted, whether because the prosecutor never filed charges, or did file charges and then dismissed them, or whether the arrestee was found not guilty at trial. Obviously, due to the presumption of innocence, many guilty people can be acquitted or have the charges dismissed even though they did commit a crime. That kind of dismissal alone won’t support this method of “expungement.”

The Court won’t grant the factual innocence petition until it finds that “no reasonable cause exists to believe that the arrestee committed the offense”. That is significant. If the Prosecutor opposes the petition and introduces incriminating evidence that could have allowed a jury to convict, then the petition should be denied. This may occur if the District Attorney dismissed the case due to inability to get admissible evidence in to court, though he believed that the accused was guilty. The petitioner must prove that under the current evidence, no reasonable person would think that he was guilty.

Once the judge grants the petition, the Court orders the Attorney General, the police, and the Courts to seal all their records for three years from the date of arrest. During this time, people inquiring as to a criminal record will be told “We have no record of any arrest or conviction for that person.” After the three years expire, those entities must destroy their records of the arrest and prosecution, including the court order itself that declares the accused factually innocent.

This last point can be of critical importance. The beneficiary of such an order should be careful to promptly obtain several certified copies of the order and put them in a very safe place. The Court will not be able to provide another copy years later when the petitioner has lost his or her copy. In addition, all of the court indexes and print-outs of past criminal cases will have to delete the mention of the petitioner. The State agencies that shared the arrest records with other agencies are ordered to request those other agencies to destroy their copies too. However, due to the Federal Government being supreme over state governments, a state cannot force the Feds to destroy their records of the arrest, though often they will comply. Additional information on Factual Innocence relief can be found at http://lawyer-expungement.com.