Law Offices of Johnson & Johnson

Penal Code § 851.8 – Petition For Factual Finding Of Innocence

The California Supreme Court in Loder v. Superior Court stated, “Although arrest records do serve valid and important public purposes, an arrest can haunt a person for the rest of his life.” An arrest history can certainly affect individuals seeking employment or professional certification. If you were detained or arrested for a crime but never convicted of a crime, there is relief available. 

Pursuant to Penal Code § 851.8, you can petition the court to make a finding that you were factually innocent of the crime for which you were arrested or detained. This is commonly known as a petition for a factual finding of innocence. If your petition is granted, you can have detention or arrest records sealed and eventually completely destroyed.

The 3 scenarios for the Innocence Petition are: 

  1. You were only subject to a detention (but not arrested);
  2. You were subject to arrest but charges were not filed;
  3. You were arrested and charges were filed but you were not convicted.

Meeting these criteria is the first step of eligibility to file this petition. The second step is where the hard work begins. According to the law, a finding of factual innocence and an order sealing and destroying the records shall not be made, unless the Court makes a finding that a reasonable person would not entertain an honest and strong belief that the petitioner (you) had committed a crime. Most courts will view this as a high threshold to overcome. The burden of proof falls squarely on the petitioner. 

In order to meet this high threshold you need an attorney that will closely scrutinize the facts and circumstances of your case and present your petition in the best light; and then present evidence and argument on your behalf. In order to prevail on your petition, you will be required to produce evidence in the form of testimony, photos, videos, and forensic evidence. While this is a demanding burden to meet, the right attorney can help you achieve success. If you were detained or arrested but never suffered a criminal conviction, contact us immediately. We will review your case, determine if you are eligible for a factual filing of innocence, assist you in preparing your petition, producing evidence and zealously argue the matter to the Court on your behalf.

Peter Johnson, Esq.

The Law Offices of Johnson & Johnson has over 25 years of
trial experience negotiating thousands of cases and have
defended clients in a wide variety of jury trials... Read More