Factual Innocence Motions

factual innocence motion

In California, there are a number of options available to individuals who are trying to clean up their criminal records. While many convictions can be expunged under California Penal Code Section 1203.4 PC, there is always a record of the arrest that may be available to law enforcement and other parties accessing the individual’s complete rap sheet.

There are instances where a defendant was arrested for a crime but was never convicted. This may be because charges were ultimately declined for criminal filing by a prosecutorial agency, because the charges were filed but dismissed or because the defendant went to trial and was acquitted. In these cases, the defendant can file what is known as a factual innocence motion under California Penal Code Section 851.8 PC. If successful, the defendant’s record will be sealed and destroyed. Unlike the relief available with an expungement, a person whose California Penal Code Section 851.8 PC motion is granted will have no indication that they were arrested and/or prosecuted for the underlying offense on their criminal record.

In many cases, a person may be arrested for a crime but the charge is ultimately dismissed or never filed. In these cases, the arrest may still remain on a person’s criminal record and may even show up as an unresolved case. Employers may discovery this during a background search and the existence of this arrest record could prove toxic to a person’s job prospects.

Although the burden is extremely high, the defendant may be able to delete the arrest record by filing a factual innocence motion. The first step would be to petition the law enforcement agency who made the arrest and request that they issue a finding of factual innocence and destroy the petitioner’s arrest record. This must be done within two years of the date of arrest. Once the petition has been filed with the relevant law enforcement agency, the agency has 60 days to respond. If 60 days passes or if the law enforcement agency denies the petition, the petitioner can then file a petition in Superior Court for a finding of factual innocence. The petition would be filed with the Superior Court branch that would have had jurisdiction over the original offense. In addition, both the law enforcement agency who conducted the arrest and the prosecutorial agency that would have been responsible for prosecuting the case would have to be served with the petition.

A hearing will be set to determine whether or not the petitioner is factually innocent of the underlying criminal offense. During the hearing, the petitioner can be represented by an attorney and can provide declarations, affidavits, witness testimony and any other evidence tending to show that the petitioner is factually innocent of the criminal conduct. Unlike criminal court where the burden of proof is on the prosecution, the initial burden of proof in a factual innocent motion is on the petitioner. He or she would be required to prove that there is no reasonable cause to believe that the petitioner committed the crime that he or she was arrested for. If the petitioner is able to meet this burden, the prosecutor would have to establish that there was reasonable cause to show that the petitioner committed the offense. The prosecution can also present evidence, including police reports and officer testimony, in order to rebut the petitioner's arguments. After hearing all evidence, the Court would render a decision and would ultimately grant or deny the petition for factual innocence.

If the motion is granted, the arrest record will be sealed for a period of three years. During this time, the arrest could not be disclosed to any potential employer. After three years have passed, any record of the arrest would have to be destroyed. If asked on a job application whether or not the petitioner has ever been arrested, the petitioner can legally answer that he or she has not been arrested if the factual innocence motion was granted.

If you have an active arrest record that you want to have cleared, it is critical that you speak with a Los Angeles Criminal Defense Attorney immediately. Los Angeles Criminal Defense Lawyer Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience who is highly skilled at litigating factual innocence motions on behalf of his clients.

For more information about Los Angeles factual innocence motions, and to schedule your free consultation, contact Los Angeles Criminal Defense Attorney Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.

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Michael Kraut is outstanding! He genuinely cared about my case and instructed my mom and I throughout the entire process. He was very clear on what he needed in order to receive the best results. He kept us updated until the end. I thank him so much for getting my charges rejected. I highly recommend him to anyone with legal needs! Shaquan
I contacted Michael with concern for my personal and business reputation. He was very reassuring and confident the entire time. After about 3 weeks it was determined that no charges were being filed by any agency and I was in the clear of any investigation. One thing that is amazing is just how FAST Michael is at replying to phone calls, texts, and even emails! We are talking under 30 minutes in most cases. That is unheard of for most attorneys! Michael is incredible and not your typical run of the mill attorney. For best results hire him if you feel like you might be under investigation or could face charges. Even if you know you are innocent it is best to take care of the smoke before it becomes a fire. Brad
Michael Kraut is-hands down-the best criminal defense attorney and I can't begin to thank him for all that he did for me and my family. I reached out to him in the middle of the night and less than a couple hours later, he had gotten back to me and scheduled a meeting. He's a no-nonsense attorney who knows how to get the job done! From the second we retained him, I had peace of mind in knowing that we were in the best hands possible. If Michael Kraut couldn't get it done, I knew that it couldn't be done at all. You can't put a price tag on your freedom. He was worth every single penny. Lida
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Michael Kraut - I cannot thank you enough for all that you did for ​my son. When I came to you I read that you used to be a district attorney but I never knew how much that meant until I watch you in court. I knew it took 3 months but the final day when I heard the judge say that all charges were dismissed it was all worth it! I will always be grateful for all that you did for us. A.N.