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In Los Angeles, you can be wrongfully arrested and still have the arrest record show up on a criminal background check for the rest of your life, unless you seal that arrest. This is true even if that arrest did not lead to a conviction. An arrest on a background check can be an obstacle to employment, promotion, renting or buying a house. Employers and landlords who depend on background checks to determine suitability might see an arrest on your record and presume you were guilty of a crime. People with criminal records face many obstacles and legal barriers that make it almost impossible to succeed in life.
There is a solution. You may be eligible to file a Petition for Factual Innocence (see Penal Code section 851.8) in order to get that arrest permanently stricken from your record. The Petition for Factual Innocence must be filed within two years of the arrest or filing of the criminal complaint. If you are able to have your arrest records sealed and destroyed you can legally answer “No” to the question: “Have you ever been arrested?”
WHO IS ELIGIBLE FOR A FACTUAL INNOCENCE PETITION?
People may have their arrest sealed include if:
- They were arrested without criminal charges being filed;
- They were charged after their arrest but the charges were dismissed; or
- They were charged and later found “Not Guilty” by a jury.
The citical factor in determining whether you are able to file a Petition for Factual Innocence is if there was a conviction. If you have a conviction, you are not eligible and you must file for an Expungement under Penal Code section 1203.4 to have your “no contest” or “guilty” plea set aside.
How To File The Petition For Factual Innocence
To seal your arrest records, you must first file the Petition with the law enforcement agency which made the arrest. This is best done with the assistance of a skilled and experienced Los Angeles criminal defense attorney familiar with this type of Petition. If the arresting agency recognizes that the person wrongfully arrested is in fact factually innocent, the agency will seal the records for three years. After the three years the records will be destroyed.
If the law enforcement agency does not respond within 60 days or denies the Petition, your attorney must file the Petition in the Superior Court where a criminal complaint was filed or where the criminal charges would have been filed. The law enforcement agency which made the arrest and the prosecutor who filed, or had jurisdiction to file the criminal case must be served.
A hearing will then be set in the Superior Court and the judge will hear evidence and arguments from both sides: the petitioner’s attorney and the prosecutor. The petitioner has the burden of proving his or her innocence by demonstrating there was no reasonable cause to believe the petitioner committed the offense for which he or she was arrested. The prosecutor can challenge the petitioner's claims by introducing evidence to rebut the petitioner's claims. After both sides have presented their evidence, the judge will make a decision and either grant or deny the Petition.
If you want to remove a wrongful arrest from your record, call our office for a free consultation. Filing a Petition for Factual Innocence is not a simple process and requires knowledge, skill and experience. We have over 75 years of combined criminal law experience and will put that experience to work for you.
Contact us at (213) 481-6811 or fill out our online form to schedule your free initial consultation today.