Monder Law Group - News

Petition For Factual Innocence

What is Factual Innocence?

Factual innocence is when no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made, the petitioner is in fact innocent.

What is a Petition for Factual Innocence?

It is a petition to seal a petitioner’s arrest record based on a finding of factual innocence.

How does Factual Innocence differ from Expungement?

A person petitioning for factual innocence has not been convicted of any crime and is requesting relief because he or she was wrongfully arrested. Whereas, a person applying for expungement was convicted of a crime and is requesting relief despite that conviction.

Who qualifies for relief under P.C. 851.8?

A person who was wrongfully arrested; a person who was arrested but no charges were ever formally filed; a person who was arrested and had charges filed but whose charges were dismissed. Also a person acquitted of the charges at trial, if it appears to the presiding judge that the defendant was factually innocent of the charge.

What is the difference between an acquittal of the charges based on P.C. 851.8 and an acquittal of the charges based on a jury’s finding of not guilty?

Under P.C. 851.8 a petitioner is acquitted based on a finding of the petitioner’s factual innocence whether before trial or after trial by the presiding judge. On the other hand, at the end of a jury trial, the defendant’s acquittal is based on the prosecution’s failure to meet their burden of proof and not necessarily because the defendant was found to be innocent.

Who bears the burden of proof?

The petitioner carries the burden of proof to establish that no reasonable cause exists to believe that the arrestee committed the offense. If the court finds that the petitioner has met this burden, then the burden of proof shifts to the respondent to show that reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made.

How does relief under P.C. 851.8 work?

The court will schedule a hearing to determine the factual innocence of the petitioner. At the time of the hearing, defense attorney will argue petitioner’s innocence by providing the court with declarations, affidavits, police reports, or any other relevant evidence. Based on the evidence that the court hears, it will either decide to grant or deny the petition for factual innocence. If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then 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 to seal their records of the arrest for three years from the date of the arrest and thereafter to destroy the records.

When should you file a Petition for Factual Innocence?

A petition for factual innocence can only be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. However, it is important to note that if you have already missed this deadline and can show good cause as to why, the two year restriction may be waived in the absence of prejudice.

What are the benefits of a Factual Innocence finding?

It will be as if the arrest never occurred. This means that any prospective employers running a background check will not be able to see any record of arrest or prosecution.

Who should you contact?                                                                

If you are the victim of a wrongful arrest and have reason to believe that you were accused of a crime that you did not commit, we urge you to contact Monder Law Group immediately. Our knowledgeable and experienced attorneys are ready to examine the specifics of your case; we will find the proof of factual innocence that we need to submit a motion before the Court for a declaration of  your innocence. Here, at Monder Law Group we are zealously committed to finding justice for those wrongfully accused, you can rest assured that we will not stop until we obtain an order for the sealing and destruction of any arrest records in your case.

If you have any questions about filing a petition for factual innocence in San Diego, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Defense Attorney