In California, there are a few options available to clean up a criminal record. The most common method is to have your criminal record expunged. However, while an expungement seals your criminal records and prevents you from having to disclose the crime to potential employers, there will still be a record of the arrest.

A petition for factual innocence provides a stronger method for cleaning your criminal record. If an individual can clearly demonstrate his or her innocence, a successful petition not only seals the criminal record but erases the arrest record completely.

Who Can a Apply for Factual Innocence Petition?

While a petition for factual innocence provides a cleaner criminal record than an expungement, it also has a higher burden of proof. Even though the defendant may be acquitted of the charges, this alone is not enough for the court to grant it. The defendant must demonstrate to the Court that “no reasonable cause exists to believe that the they committed the offense”. This means that the defendant must present evidence to the Court that they did not commit the crime. A petition for factual innocence may be available in the following cases:

  • If you were arrested but not charged with a crime.
  • If you were arrested but the charge was dropped
  • If you were charged with a crime but acquitted

How do I File a Petition for Factual Innocence?

The first step is to petition the law enforcement agency that made the arrest and request that they issue a finding of factual innocence and destroy the arrest record. It must be filed within 2 years of the arrest. It should be filed with the arresting law enforcement agency, and give them 60 days to respond.

If the petition is denied or 60 days passes without an answer, then a petition can be filed in Superior Court for a finding of factual innocence. The Superior Court will hold a hearing in which the petitioner must offer evidence to prove that they are innocent of the charges. The prosecutor may present evidence that there is “reasonable cause” that you committed the offense, which is a lower standard of proof than convicting a person of a crime.

Is a Factual Innocence Petition the Same Thing as an Expungement?

Both a factual innocence petition and an expungement are tools to clean a criminal record. However, while an expungement merely seals the records, the factual innocence petition will erase it completely.

Can the Police Department Object?

Yes, the police department has the right to object your petition for factual innocence. If they believe you’re innocent then they can seal the record for three years and destroy it. If they object then you can continue on to file your petition with the court.

Can I File the Petition if I Was Arrested and Charges are Still Pending?

No. You must wait until the charge or charges are resolved. The charge usually must conclude with a dismissal or not guilty verdict.

Will There Be Any Record of My Petition in Court Documents?

No. If your petition for factual innocence is granted, the court will seal the record of the arrest as well as the petition. Ultimately, any documentation of your false arrest will later be destroyed.

Do I Need Help with a Factual Innocence Petition?

Successfully petitioning the court for factual innocence is a complicated process. It may require presenting extensive evidence to a judge to demonstrate your innocence. An experienced California criminal defense lawyer can gather evidence, file the necessary paperwork, and advocate for you in court.