Penal Code 851.8 PC – How to Seek a “Certificate of Factual Innocence” in California

Updated May 22, 2021

Under Penal Code 851.8 PC, a petition for a certificate of factual innocence is where a person asks the court to make a finding that he or she did not commit a crime for which he or she was detained, arrested or charged, although never convicted.

Specifically, a person can seek a petition for factual innocence where he or she:

1. has been detained by police officers, but not officially arrested for a crime,
2. has been arrested for an offense, but not formally charged,
3. was formally charged for a crime, but the charges were later dismissed, or
4. was formally charged for a crime and tried for that crime, but there was no criminal conviction.

The person bringing the petition has the burden to show he or she is factually innocent of the crime. If the petition is granted, the police agencies must seal and destroy all records of the arrest.

In this article, our California criminal defense attorneys will discuss

• 1. What is a petition for factual innocence?
• 2. How do I apply?
• 3. What happens if I’m found to be factually innocent?
• 4. When am I eligible to apply?
• 5. What are the benefits?
• 6. What does it mean to seal an arrest record?

Penal Code 851.8 PC is the California statute that directs how a party may file a petition for factual innocence (“PFFI”).

1. What is a petition for factual innocence?

“Factual innocence” legally means that a person is innocent of any criminal act, felony or misdemeanor. A party files a petition for factual innocence (PFFI) in order to destroy arrest records because the arrest should not have occurred in the first place.

A successful petition for a finding of factual innocence shows that there was no reasonable cause to believe a person committed an offense for which he was arrested.

California Penal Code 851.8 PC sets forth the procedures for filing the petition. If a petition is granted, the law enforcement agency having jurisdiction over the offense must seal a party’s arrest records for three years (from the date of the arrest).¹ After this time, the criminal records and the petition get destroyed.²

2. How do I apply?

After an arrest has been made, a party files a PFFI with the law enforcement agency having jurisdiction over the offense.³

In the petition, the arrested party must prove that his arrest was made without legal cause.⁴ A party can present evidence to attempt to prove factual innocence. Examples of such evidence include:

1. witness testimony,
2. photos,
3. surveillance video,
4. receipts,
5. cell phone records, and
6. DNA.

In order to prove factual innocence, the petitioner has the initial burden of proof to show that there was no reasonable cause for an arrest. Then it is then up to a prosecutor to show that there was, in fact, reasonable cause for the arrest.

Upon hearing from both sides, a judge then determines:

1. whether or not the arrest was warranted, and
2. if the petitioner’s factual innocence motion should be granted.⁵

Please note that a party must file a petition for factual innocence within two years from the date of the arrest. In short, there is a two-year statute of limitations to file the petition.

If a judge is convinced that there was no reasonable cause for a party’s arrest, then he/she will grant the PFFI.

3. What happens if I’m found to be factually innocent?

If a judge is convinced that there was no reasonable cause for a party’s arrest, then he/she will grant the PFFI.

Once this occurs, the police department and the Department of Justice must seal and destroy all records of the person’s arrest. This includes any subsequent criminal proceedings.⁶

Moreover, the above entities must also destroy the following (that are associated with the arrest):

• arrest reports,
• booking information,
• mugshots,
• court records, and
• any evidence collected or gathered.

4. When am I eligible to apply?

Under California law, a party can file a PFFI post-arrest. But there are actually four distinct scenarios under when a person can file a petition. These are when a person:

1. has been detained by an arresting agency, but not officially arrested by police for a crime,
2. has been arrested for an offense, but not formally charged,
3. was formally charged for a crime, but the prosecuting attorneys dropped the charge, and,
4. was formally charged for a crime and tried for that crime, but there was no criminal conviction.

5. What are the benefits?

The reality is that arrest records can make it difficult for persons to accomplish basic life goals. Thus, a petition for factual innocence removes barriers to these goals.

A background check these days may now be run for any of the following:

• a job application,
• a professional license,
• a request for a mortgage loan,
• an apartment application, or
• a school application.

If this background check shows a past arrest, the applications or loans could get denied.

An arrest record could cause further complications as well. For example, if a party is arrested for violating one of California’s domestic violence laws, then the party could lose his gun rights. A PFFI is helpful in making sure these rights are protected.

“Sealing” an arrest means the record will not show up on most criminal background checks in California.

6. What does it mean to seal an arrest record?

Penal Code 851.87 is the California statute that pertains to the sealing arrest records as a matter of right.

“Sealing” an arrest means the record will not show up on most criminal background checks.

Under PC 851.87, a person can have his arrest record sealed as a matter of right when:

1. criminal charges were filed but later dismissed,
2. the defendant was found “not guilty” (acquitted) in a jury trial,
3. the defendant’s conviction was vacated or overturned on appeal, or
4. the defendant successfully completed a pretrial diversion or pre-sentencing program, such as Penal Code 1000 deferred entry of judgment.⁷

An exception to sealing an arrest record as a matter of right is when the person arrested has a history of arrests and/or convictions for:

• domestic violence,
• child abuse, and/or
• elder abuse.⁸

It typically takes about ninety days after filing a petition to seal to get a court order to seal an arrest record in California.

Arrest records, police reports, and superior court records that are sealed under this section shall not be disclosed to any person or entity except:

• the person whose arrest was sealed, or
• a criminal justice agency (which may use the information to the same extent as if the arrest had not been sealed).⁹

Improper release of a sealed arrest can be punished by a civil penalty of between $500 and $2,500 per violation. The penalty may be enforced by a city attorney, district attorney, or the Attorney General.

The person affected may also have the right to bring a lawsuit for compensatory damages or possibly even punitive damages (if the release was reckless or intentional).

Call our DUI and criminal law firm for legal advice and to discuss creating an attorney-client relationship. We offer free consultations.

Our criminal defense lawyers have law offices in Los Angeles, San Diego, and throughout the state of California.

Disclaimer: Results cannot be guaranteed.

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