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Factual Innocence Petition

A Petition to Seal & Destroy A Record of An Adult Arrest is authorized by Penal Code section 851.8, which provides:

“In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its record of the arrest.  A copy of such petition shall be served upon the district attorney of the county having jurisdiction over the offense.”

This sort of petition is otherwise known as a Petition for Factual Innocence and must be filed within 2 years from the date of arrest.  The relief this provides someone is essentially cleaning up their background information so that the person no longer has an arrest on their record.

When Misdemeanor arrests are involved, its usually fairly straight-forward whether or not relief should be sought under this type of petition.  Mainly because misdemeanor cases must be filed within 1 year from the date of arrest.  So there is no chance of the District Attorney filing charges after having the Petition filed, in order to avoid a factual innocence declaration.

When it comes to arrests for Felony allegations, however, things are not always so clear.  Most felony convictions carry a 3 year statute of limitations (many are longer).  This means that the District Attorney has 3 years to file a case against the defendant, starting from the date of arrest.  This makes it even more important to discuss your options with a qualified DUI & Criminal defense attorney to determine whether or not the circumstances justify filing for relief under section 851.8 of the Penal Code.  If you miss the 2 year deadline, you will no longer have the ability to remove the arrest from your record and have it sealed.  However, if you file the petition and are unsure whether the District Attorney rejected your case or not, filing it could simply result in having the criminal charges filed against you.

To discuss your options with a qualified attorney and receive some guidance with this process, contact our office immediately to discuss your case and options.  We’d be happy to discuss your options at any of our offices.

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