If you were arrested for a crime you did not commit, California law provides a powerful remedy: a Petition for Factual Innocence under Penal Code 851.8.
Unlike an expungement, a factual innocence finding results in your arrest record being sealed and later destroyed.
Once granted, there will be no public record that you were ever arrested or prosecuted for the alleged offense.
However, the burden of proof is high. Successfully obtaining relief requires strong legal arguments and compelling evidence.
Your best hope for a favorable outcome is with an experienced criminal defense attorney at Eisner Gorin LLP.
To schedule a consultation, call (818) 781-1570 or contact us here.
What Is Factual Innocence Under Penal Code 851.8?
Factual innocence means that no reasonable cause exists to believe you committed the offense for which you were arrested.
This is not the same as:
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Charges being dismissed
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A not guilty verdict
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A case being rejected by prosecutors
Even if your case was dismissed or you were acquitted at trial, your arrest record still exists unless a factual innocence petition is granted.
If successful, Penal Code 851.8 requires law enforcement agencies and the Department of Justice to seal and later destroy all records related to your arrest.
Who Qualifies to File a Petition for Factual Innocence?
You may qualify if:
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You were detained but not arrested
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You were arrested but never formally charged
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Charges were filed and later dismissed
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You were acquitted at trial
The petition must generally be filed within two years of the date of arrest.
How Is a Factual Innocence Petition Different from Expungement?
A factual innocence finding completely removes the arrest from your record.
With expungement:
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The arrest and conviction still appear
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The case is marked as dismissed
With factual innocence:
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The arrest is sealed
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Records are destroyed after a statutory period
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You can legally state you were never arrested
This makes Penal Code 851.8 relief significantly stronger than expungement.
The Process for Filing a Petition Under PC 851.8
Step 1: Petition the Arresting Agency
You must first submit a written petition to the law enforcement agency that made the arrest.
The agency has 60 days to respond.
If they:
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Deny the petition, or
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Fail to respond within the required timeframe
You may proceed to court.
Step 2: Petition the Court
If the police agency denies or fails to respond, you can file a petition with the court that has jurisdiction over the case.
The court will schedule a factual innocence hearing.
The Factual Innocence Hearing
At the hearing, the burden initially falls on you to show that no reasonable cause exists to believe you committed the offense.
Common evidence includes:
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DNA or forensic testing
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Cell phone records
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Surveillance footage
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Alibi witness declarations
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Police reports revealing lack of probable cause
If you meet this burden, the prosecutor must then demonstrate reasonable cause existed for your arrest.
The judge will decide whether to grant or deny the petition.
What Happens If the Petition Is Granted?
If the court grants your petition:
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Arrest records are sealed immediately
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Police reports, booking photos, and court records are sealed
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The Department of Justice seals its records
For three years, the records remain sealed and inaccessible to the public.
After three years, the records must be permanently destroyed.
You may lawfully state that you were never arrested or prosecuted for the offense.
Why Filing a Petition Matters
Even if charges were never filed, an arrest can:
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Appear on background checks
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Impact employment opportunities
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Affect professional licensing
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Interfere with housing applications
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Complicate immigration matters
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Affect firearm ownership eligibility
A factual innocence finding removes these barriers.
Frequently Asked Questions
Is being acquitted enough to qualify?
Not automatically. You must still prove that no reasonable cause existed for your arrest.
How high is the burden of proof?
The burden is significant. You must affirmatively demonstrate factual innocence, not just lack of conviction.
Can I file after two years?
Generally, the petition must be filed within two years, though limited exceptions may apply.
Does the record disappear immediately?
Records are sealed immediately upon grant. They are destroyed after the statutory three-year period.
Why Legal Representation Is Critical
Factual innocence petitions are complex and heavily litigated. Courts scrutinize these petitions closely because they involve permanent destruction of arrest records.
An experienced criminal defense attorney can:
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Analyze probable cause issues
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Gather supporting evidence
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Prepare legal declarations
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Present persuasive arguments at hearing
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Challenge prosecutorial opposition
Proper preparation significantly increases the likelihood of success.
Speak With a Los Angeles Criminal Defense Attorney
If you were arrested for a crime you did not commit, you should not have to live with a permanent arrest record.
A Petition for Factual Innocence under Penal Code 851.8 may allow you to completely clear your record.
If you believe you qualify, consult with an experienced California criminal defense attorney to review your case and determine whether you meet the strict requirements for relief.
Early legal action is critical due to statutory filing deadlines.
Eisner Gorin LLP is here to help. Schedule your consultation by calling (818) 781-1570 or using the contact form. Our law firm is based in Los Angeles.
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