In California, there are several options available to clear a criminal record. The most common of these options is to have your criminal record expunged. However, while an expungement can seal your criminal record and prevent you from having to disclose the crime to any potential employers, there will still be a record of the arrest linked to that crime.

Thus, a petition for factual innocence provides a stronger method for cleaning your criminal record. A petition for factual innocence may be granted if an individual can prove their innocence. These legal documents are typically only filed by persons who have been falsely accused of a crime. To be successful, a court must find that the individual is in fact innocent. 

If the court decides that the petition should be affirmed, then a successful petition for factual innocence will not only seal the individual’s criminal record, but will also wipe out the arrest record in its entirety. 

Who Can Apply for Factual Innocence Petition?

According to the California Penal Code, only certain individuals may apply for a factual innocence petition. Specifically, there are four scenarios under which a person will be eligible to apply. These include when a person has 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; and
  • Formally charged for a crime and tried for it, but there was no criminal conviction. 

The individual filing the petition will be responsible for proving that they are factually innocent of the crime in question.

How Do I File a Petition for Factual Innocence?

To initiate the process for filing a petition for factual innocence, an individual will need to complete and file the petition with the law enforcement agency that has jurisdiction over the offense as well as the appropriate court. 

Before filing with a court, the individual will first need to petition the law enforcement agency that made the arrest, request that they issue a finding of factual innocence, and that they destroy the arrest record. It should be noted that this petition must be filed within two years of the arrest. 

The agency will then have 60 days to respond to this request. If the agency fails to respond or denies the request, then the individual may file a petition for factual innocence with the proper court.

If the crime resulted in a criminal case, the petition must be submitted to the court where the case was filed. If no charges or cases were brought against the individual, the individual must submit the 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 where the arrest happened and on the law enforcement agency that made the arrest. Service on both the prosecutor and law enforcement agency must occur at least 15 days before the scheduled court hearing. After both parties have been served, the individual must then file a “proof of service” with the same court in which the petition was initially filed. 

During the hearing, the petitioner will have the burden of proving that no reasonable cause existed for the arrest and/or that they committed the crime. If the petitioner satisfies this requirement, then the burden will shift to the prosecutor and they will need to establish that there was reasonable cause to believe that the petitioner committed the offense for which they were arrested. 

Both the petitioner and the prosecutor may use evidence to support their arguments. Evidence may include items, such as witness testimony, affidavits, DNA results, photos, and any other evidence that may be useful. After both sides have presented their arguments and evidence, the court will then determine whether or not the arrest was justified, and if the petition for factual innocence should be granted. 

If the law enforcement agency objects, however, the petitioner will also need to prove that the police did not have sufficient evidence to arrest them for the crime in question. This is a tough objection to overcome because all a law enforcement agency will need to show is that they had good cause for the arrest. It should also be noted that a prosecutor may only challenge a request for eligibility reasons.

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

As discussed above, a factual innocence petition and an expungement are not the same type of legal document. While they are both used as a way to clear a criminal record, they involve separate procedures, have different burdens of proof, and result in different outcomes. 

For instance, a factual innocence petition requires filing a petition with both the relevant law enforcement agency and potentially the court if the law enforcement agency does not respond or denies the petition. The expungement process, on the other hand, only requires a filing with the court. 

The most significant difference between the two methods is that an expungement will only allow an individual to seal their criminal record and permit them to refrain from having to disclose a crime to prospective employers. A petition for factual innocence, however, will erase not only the criminal record, but also the arrest record. A successful petitioner will also not need to disclose it to future employers and future 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 was arrested and the charges are still pending, they must wait until the matter is resolved. In general, the charges will typically need to result in either a dismissal or a not guilty verdict. 

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

If a judge grants the petition, then the Department of Justice and the relevant law enforcement agency will be required to seal and destroy the criminal record, which includes both the arrest and any related criminal proceedings. These agencies must also destroy all affiliated arrest reports, mugshots, court records, booking information, and any evidence collected in connection with the crime. 

Additionally, it is important to note that the relevant law enforcement agency, prosecutor involved in the case, and the Department of Justice may still keep a copy of the arrest record for up to three years, even if the petition was successful. However, the record will be sealed and no prospective employers will have access to it. After three years have passed, then all records must be destroyed.

Do I Need Help with a Factual Innocence Petition?

Successfully petitioning a court for factual innocence can be a very challenging process. A petitioner will need to follow the proper steps required for filing, present evidence that demonstrates their innocence, and appear before a court. 

Thus, if you wish to clear your criminal record by filing a factual innocence petition, you should consider contacting a California expungement lawyer to assist with the process.

An experienced criminal defense lawyer can help you navigate the different procedures for filing, gather valuable evidence, and answer any questions you may have about the court’s final decision. Your lawyer can also provide representation in court where they can advocate on your behalf.