skip to Main Content
Blog.seal.factualinnocencesealingrecords.occriminaldefense

‘Factual Innocence’: The Absolute, Single Most Difficult Way to Seal Your Arrest Record

You may have an arrest in your past that did not result in a conviction. If so, you may wish to consider sealing the record of your arrest. The benefit in doing so?

You can stop third parties — such as prospective employers, state licensing agencies, insurance companies, universities, and landlords — from finding the arrest and taking it into account when deciding whether to do business with you. In other words, sealing your arrest record can help you secure your future opportunities.

As of January 1, 2018, there is a new way to seal a record of your arrest: petitioning the Court to do so. That method is efficient and fair, and you can read about it here.

Before 2018, the original (and only) way to seal your arrest record was by seeking a finding of factual innocence, a nearly impossible task. A finding of factual innocence, which will be discussed here, is still a valid method to seal an arrest record. But when it comes to being found factually innocent, the odds are not in your favor.

Know the odds of being dealt pocket kings?
About the same as being found factually innocent.

Behold, the Stacked Deck Process for Obtaining a Finding of Factual Innocence

Step 1: Petition the Police and the District Attorney’s Office

If you were arrested and no charges were filed, you must petition the police agency that arrested you and provide a copy of the petition to the District Attorney’s Office.[i] You are, in essence, asking the authorities to grant your request to seal your arrest record.

To seal your arrest record, both the police and the prosecutor’s office must agree that “no reasonable cause exists” to believe that you committed the crime that you were arrested for.”[ii] It is within the authorities’ sole discretion to grant or deny your petition. If you don’t hear back from the authorities within 60 days, then it is presumed that they denied your petition.[iii]

Step 2: Petition the Court

If your petition is denied, you may petition the Court and request a hearing. At this hearing, it is your burden to prove to the Court that you are “factually innocent” — meaning that “no reasonable cause exists” to believe that you committed the crime that you were arrested for.[iv] To make your case, you may present any evidence that is material, relevant, and reliable.[v]

Factual innocence requires that you prove that the police had no good reason to have suspected you to begin with.[vi] This is a very difficult standard to meet; even if you are acquitted (read: unanimously found not guilty by a jury), a Court may still disagree with the notion that you are factually innocent.[vii]

What Happens If I Am Found Factually Innocent?

If you prevail at your hearing, then the record of your arrest, including your petition to seal the arrest record, will be sealed for three years from the date of the arrest.[viii] After three years, the arrest record will be destroyed.[ix] If it is the Court that finds you factually innocent, then the Court will order the police to seal your arrest record for three years and then destroy it.[x]

Upon a finding of factual innocence, the police must provide you with a document stating that you are factually innocent of the charge that they arrested you for[xi] and that the record of your arrest will be sealed for three years and then destroyed.[xii]

Factual innocence requires that you prove that the police had no good reason to have suspected you to begin with. This is a very difficult standard to meet.

Once you receive the document from police, the arrest will be deemed to have never occurred and you can lawfully answer “no” whenever you are asked if you’ve ever been arrested[xiii] — for instance, in an application for a job, an apartment rental, or a state license. (Note: You must still answer “yes” regarding arrests for which you have not found to be factually innocent.)

Additionally, if you are ever called to testify as a witness at trial, neither the arrest nor the finding of factual innocence may be used to suggest that you are less trustworthy.[xiv]

You Can Seal Your Detentions, Too

Detentions[xv] are brushes with the law — say you were stopped and questioned by police while walking down the street with friends or detained at a raucous party after police were called to send everyone home — that do not result in an arrest.[xvi]

A detention, just like an arrest, can appear in your background check. And, just like an arrest, a detention can also be sealed.[xvii] The procedure for doing so is the same two-step process described above.[xviii]

Though detentions are not as serious as arrests, it would still be prudent to prevent such records from appearing in your criminal background check. You can never know whether a prospective employer, college, or landlord will give you the benefit of the doubt.

The Clock Is Ticking

If you have been arrested or detained and want to seal your record, then don’t delay: you have just two years from the date of your arrest to file your petition.[xix]

Again, if you’d like to learn more about the new, streamlined process for sealing arrest records — known as Senate Bill 39 and which has no statutory deadline — then click here.

[i] Penal Code §851.8(a). Note: If you were arrested, charges were filed, but no conviction occurred because, for instance, the case was dismissed or you were acquitted, then you may petition the Court directly, without having to first notify the police. Penal Code §§851.8(c), (e).

[ii] Penal Code §§851.8(a), (b).

[iii] Penal Code §851.8(b).

[iv] Penal Code §851.8(b).

[v] Penal Code §851.8(b).

[vi] “ ‘Factually innocent’ … does not mean a lack of proof beyond a reasonable doubt[.] … Defendants must show that the state should never have subjected them to the compulsion of the criminal law — because no objective factors justified official action. … In sum, the record must exonerate, not merely raise a substantial question as to guilt.” People v. Adair (2003) 29 Cal. App. 4th 895 at 909. (Emphasis added.)

[vii] In People v. Adair (2003) 29 Cal. App. 4th 895, a jury, through circumstantial evidence, found that a woman was not guilty of murdering her husband. Afterward, the woman petitioned the court to seal the portion of her record indicating that she had been arrested for murder. Her petition was initially granted by the trial court, but ultimately denied by the California Supreme Court on appeal. The High Court ruled that a not guilty verdict based on circumstantial evidence is not enough to establish the standard of “factual innocence.” “ ‘Factually innocent’ … does not mean a lack of proof beyond a reasonable doubt[.] … Defendants must show that the state should never have subjected them to the compulsion of the criminal law — because no objective factors justified official action. … In sum, the record must exonerate, not merely raise a substantial question as to guilt.” People v. Adair (2003) 29 Cal. App. 4th at 909. (Emphasis added.) Note: The verdict of not guilty was undisturbed.

[viii] Penal Code §851.8(a). Also, before the arrest records are sealed, all references to the arrestee must be accompanied by the notation “Exonerated” next to the arrestee’s name. Penal Code §851.8(h).

[ix] Penal Code §851.8(a). Note: Police are also required to inform the Department of Justice of the sealing of the arrest record. The Department must then also seal the record for three years and subsequently destroy it. Additionally, if the police gave the arrest record (typically a police report) to any other agency, the police must instruct the agency to immediately destroy the arrest record and the agency is required by law to comply. Penal Code §851.8(a).

[x] Penal Code 851.8(b). The record of arrest shall be physically destroyed, and, if the arrest is referenced in court records, portions of the court record that reference the arrest must be destroyed and prepared again so that it appears that the arrest never occurred. Penal Code §851.8(j). Note: If an arrestee has filed a civil action against the police officer who arrested him, then the record of arrest cannot be destroyed until the civil suit has resolved. Penal Code §851.8(k).

[xi] Penal Code §851.8(f).

[xii] Penal Code §851.8(h).

[xiii] Penal Code §851.8(f).

[xiv] Penal Code §851.8(i)(1). However, a finding of factual innocence is admissible at a hearing before the California Victim Compensation Board. Penal Code §851.8(i)(2).

[xv] “In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, any record of arrest of the person shall include a record of release. Thereafter, the arrest shall not be deemed an arrest, but a detention only.” Penal Code §849.5. See also Penal Code §851.6(d).

[xvi] Technically, an incident where a person is arrested for being under the influence of drugs and ends with the person being delivered to a hospital for treatment can be characterized as a “detention.” Penal Code §849(b)(3).

[xvii] Penal Code §851.8(m).

[xviii] Penal Code §851.8(m).

[xix] Technically, the petition must be filed within two years of whichever incident occurred later: the date of arrest or the date that charges were filed. Also, the two-year time period may be waived upon a showing of good cause. Penal Code §851.8(l).

Call Now
Directions