California Factual Innocence Petition

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Is a Petition for Factual Innocence in California?

In the State of California, there are different options available for an individual to clear their criminal record. California Penal Code 851.8 provides that an individual who has been detained or arrested and who is determined to be factually innocent may petition the law enforcement agency or the court that has jurisdiction over the matter to seal and destroy the record of their arrest.

A petition for factual innocence provides a strong method for cleaning an individual’s criminal record. This petition may be granted if the individual can show they were innocent.

This type of petition is usually only filed by individuals who have been falsely accused of a crime. In order for a petition to be successful, the court must find that the individual was, in fact, innocent.

If the court determines that the petition should be affirmed, the successful petition will seal the individual’s criminal record as well as wipe out the arrest record in its entirety. Another common method for individuals to erase their criminal record is to have it expunged.

Expungement can seal an individual’s criminal record and prevent them from having to disclose the crime to any potential employers. However, there will still be a record of the arrest linked to the crime.

Who Can Apply for Factual Innocence Petition?

Under the California Penal Code, only certain individuals are eligible to apply for a factual innocence petition. Specifically, there are four situations in which an individual will be eligible to apply, including when they have been:

  • Detained by the police but was never actually arrested for a crime;
  • Arrested for a criminal offense but was not formally charged;
  • Formally charged with a crime, but those charges were later dropped;
  • Formally charged with a crime and tried for the crime, but they were not convicted.

The individual who files the petition will be responsible for proving that they are factually innocent of the crime they were charged with. If an individual has questions about their eligibility, they should consult a local California attorney.

How Do I File a Petition for Factual Innocence?

In order to initiate the process of filing a petition for factual innocence, the petitioner will be required to complete and file their petition with the law enforcement agency that has jurisdiction over the crime as well as the appropriate court. Prior to filing with the court, an individual will first have to:

  • File their factual innocence petition with the law enforcement agency that arrested them;
  • Request that the agency issue a finding of factual innocence;
  • Request that they destroy the arrest record.

It is important to note the petition has to be filed within two years of their arrest. The law enforcement agency will then have 60 days to respond to the request.

If the agency fails to respond or denies the petitioner’s request, the individual may file a petition of factual innocence with the proper court. If the criminal offense resulted in a criminal case, the petition has to be submitted to the court where the case was filed.

If charges were not brought against an individual, they must submit their petition to the clerk’s office of the court that handles criminal matters where the arrest occurred. A copy of the petition must also be served on the prosecutor in the jurisdiction where the arrest occurred, as well as on the law enforcement agency that made the arrest.

Service on both of these parties must be made at least 15 days prior to the scheduled court hearing. Once both of these parties have been served, the petition is required to file a proof of service with the same court where their petition was first filed.

What Happens During a Factual Innocence Petition Hearing?

During a factual innocence petition hearing, the petitioner has the burden of showing that no reasonable cause existed for their arrest or of showing that they did not commit the crime. If the petitioner can satisfy this requirement, the burden will shift to the prosecution.

The prosecution will then have to establish that there was reasonable cause to believe that the petitioner committed the crime for which they were arrested. Both the petitioner and the prosecutor can use evidence to support their arguments.

Evidence that may be introduced include:

  • Witness testimony;
  • Affidavits;
  • DNA results;
  • Photos;
  • Any other evidence that may be useful.

After both sides of the case have presented their evidence and arguments, the court will determine whether or not the petitioner’s arrest was justified and whether or not the petition for factual innocence should be granted. It is important to note, however, that if the law enforcement agency objects, the petitioner will also be required to show that the police did not have sufficient evidence to arrest the petitioner for the crime.

It is important to note the prosecution may only object for eligibility reasons.

How Hard Is It to Prove Factual Innocence?

The law enforcement agency might object to the petition for factual innocence. If that is the case, it will be tough for the petitioner to overcome because the only thing the law enforcement agency will have to show is that they had good cause for the arrest. Proving actual innocence is also difficult because the petitioner must show that law enforcement did not have a good reason to suspect them at the outset because they were innocent.

If an individual has any questions regarding proving factual innocence, they can consult with a criminal defense lawyer.

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

As previously noted, a factual innocence petition and an expungement request are not the same as they:

  • Involve separate procedures;
  • Have different burdens of proof;
  • Have different outcomes.

They are both methods that can be used to clear an individual’s record. For example, factual innocence petitions require the individual to file a petition with both the relevant law enforcement agency and potentially the court if the law enforcement agency does not respond or denies their petition.

Expungement, on the other hand, only requires an individual to file a request with the court. The major difference between these two methods is that expungement will only allow an individual to seal their criminal record and not be required from having to disclose the prime to prospective employers.

With a petition for factual innocence, however, the petitioner’s criminal record will be erased, as well as the arrest record. In addition, if the petition is successful, the petitioner does not have to disclose it to any potential employers, and potential employers will not be able to find it in a public search.

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

If an individual has been arrested and the charges against them are still pending, they are required to wait until the issue is resolved. Generally, the charges will need to result in a dismissal or a not-guilty verdict.

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

If the court grants a factual innocence petition, the Department of Justice and the relevant law enforcement agency will be required to seal and destroy the petitioner’s criminal record. This includes both the arrest and any related criminal proceedings. These agencies are also required to destroy any related:

  • Arrest reports;
  • Mugshots;
  • Court records;
  • Booking information; and
  • Any evidence that was collected in connection with the crime.

It is important to note that the law enforcement agency, the prosecutor involved in the case, and the Department of Justice may still retain a copy of the arrest record for up to three years, even if the individual’s petition was successful. It will be sealed and destroyed after three years.

Do I Need Help With a Factual Innocence Petition?

If you believe you need to submit a factual innocence petition in California, it is important to consult with a California expungement lawyer. Your lawyer can explain the differences in the processes and which will work in your case.

If you are eligible to file a factual innocence petition, your lawyer will ensure you follow the proper steps and present evidence demonstrating your innocence to the court. Your attorney will also advise you of the possible outcomes and the consequences of those outcomes.

Having an attorney handle your petition will provide you with the best possible chance and prevailing in court and having your criminal record erased, which is an important step for your future.

Law Library Disclaimer


16 people have successfully posted their cases

Find a Lawyer