Yes. If you were arrested in California but never convicted, you can petition the court under Penal Code §851.8 to be declared factually innocent. Win that petition, and the judge orders your arrest records sealed, then destroyed after a statutory retention period.
Here's what actually happens next:
- The court holds a hearing where you carry the initial burden of proof.
- If you meet it, the burden shifts to the prosecution to justify the arrest.
- A win means sealing and eventual destruction of records tied to that arrest.
- A win can also open the door to compensation under a separate statute.
Key Takeaways
A factual innocence motion under Penal Code §851.8 succeeds when the petitioner proves no reasonable cause ever existed for the arrest, shifting the burden to the state.
| Point | Details |
|---|---|
| Eligibility is narrow | Only people arrested but not convicted, cleared by dismissal, acquittal, or a vacated conviction can file. |
| Burden starts with you | You must show no reasonable person would have suspected guilt before the burden shifts to the prosecution. |
| No single statewide form | Use DOJ BCIA 8270 or check your county superior court for its own local petition template. |
| Winning triggers sealing, not instant erasure | Records get sealed immediately, then destroyed after a retention period of several years. |
| Rubin Law handles the full arc | Rubin Law, P.C. reviews evidence, drafts petitions, argues hearings, and follows up on sealing compliance and §4900 compensation. |
Table of Contents
- What a Factual Innocence Motion in California Actually Does
- Who Qualifies for a Factual Innocence Petition
- How to File a Factual Innocence Petition in California
- What Evidence Courts Consider and Who Carries the Burden
- What Happens After a Court Grants Your Petition
- If the Court Denies Your Petition
- How Long It Takes and What It Costs
- How Rubin Law, P.C. Approaches Factual Innocence Cases
- Get Help Filing Your Factual Innocence Petition
- Where to Verify Forms and Statutory Text
- Frequently Asked Questions
- Sources
What a Factual Innocence Motion in California Actually Does
A factual innocence finding under Penal Code §851.8 means a court has decided that no reasonable cause ever existed to believe you committed the offense. That's a narrower, more demanding statement than "not guilty." An acquittal means the prosecution failed to prove guilt beyond a reasonable doubt. A dismissal often just means the case wasn't pursued. Factual innocence goes further: it says the arrest itself lacked a reasonable basis.
This distinction matters because the paperwork and burden differ sharply from an expungement under PC 1203.4, which reduces the consequences of a conviction but doesn't erase the arrest record or declare innocence.
Two entities anchor the process. The California Department of Justice maintains the state's criminal history repository, and the BCIA 8270 form is the DOJ's Petition to Seal and Destroy Adult Arrest Records, often filed alongside or after a court grants §851.8 relief.
Who Qualifies for a Factual Innocence Petition
Eligibility is narrower than most people expect:
- You were arrested but never charged, and the statute of limitations has run or the DA declined to file.
- Charges were filed and then dismissed before trial.
- You went to trial and were acquitted.
- A conviction was later vacated and the court separately found factual innocence under a related statute.
If you're still convicted, §851.8 isn't your path yet. You'd need to vacate the conviction first through a different motion. Multiple arrests tied to one investigation, or charges across more than one county, usually require separate petitions in each jurisdiction, since local superior courts vary in how they process these filings.
How to File a Factual Innocence Petition in California
Filing isn't a form you drop in a mailbox. It's a structured legal submission with real evidentiary weight behind it.
- Identify the correct court. File in the superior court in the county where you were arrested or charged, referencing your original case number.
- Draft the petition. Include a statement of facts, a sworn declaration, supporting exhibits, and a proposed order for the judge to sign.
- Collect the forms. There's no single statewide form for this process. Some petitioners use the DOJ's BCIA 8270 to request sealing and destruction, while many counties maintain their own local templates.
- File and serve. Submit the petition to the trial court, then serve the district attorney's office and the arresting law enforcement agency. Request a hearing date once service is confirmed.
Strong petitions usually include:
- Police reports and incident logs that contradict the original probable-cause narrative.
- Witness declarations establishing a timeline or an alibi.
- Forensic reports, especially anything exculpatory that surfaced after arrest.
- Records from any suppression motions filed earlier in the case, since those rulings can bolster your argument.
Pro Tip: Request your full case file, including police reports and any suppression rulings, before you draft anything. Petitioners who build their timeline from official records first, then write around it, tend to submit tighter, harder-to-rebut petitions than those who write the narrative from memory.
If your case involved a suppression motion or pre-trial evidentiary dispute, that record is often the backbone of your factual innocence claim.
What Evidence Courts Consider and Who Carries the Burden
At the hearing, you go first. Under California Penal Code §851.8, you must show facts that would lead no reasonably prudent person to suspect that you committed the offense. Meet that bar, and the burden flips: the prosecution must then show reasonable cause did exist.
Judges can consider evidence that wouldn't normally make it into a trial. That includes:
- Sworn declarations and affidavits from witnesses or investigators.
- Police reports, even ones containing hearsay.
- Forensic test results, including retesting done after the original case closed.
- Material that was suppressed at trial but sheds light on whether the arrest itself was justified.
California's appellate courts apply de novo review to these findings, meaning a reviewing court examines the record independently rather than deferring to the trial judge's discretion, a standard clarified in People v. Adair. That objective standard is precisely why contemporaneous records, documents created at the time of arrest, tend to carry more weight than testimony reconstructed years later.
What Happens After a Court Grants Your Petition
A successful petition triggers a specific chain of events, not an instant record wipe.
- The court orders the arresting agency and the DOJ to seal your arrest record.
- Under §851.8, agencies must hold the sealed record for three years from the arrest date, then destroy both the record and the petition itself.
- Some administrative databases or out-of-state copies may lag behind the destruction order, so it's worth confirming compliance with each agency involved rather than assuming the job is automatically done.
For employment background checks, a sealed and destroyed record generally should not surface. A factual innocence finding also lays the groundwork for a compensation claim under Penal Code §4900, and it strengthens standing with agencies like the California Victim Compensation Board if you pursue that route later.
If the Court Denies Your Petition
A denial isn't the end of the road. You have several remedies, though each has its own procedural demands.
- Appeal. Appellate courts review §851.8 denials independently, applying the same de novo standard used in People v. Adair, rather than simply deferring to the trial judge.
- Habeas corpus or a motion to vacate. If you were convicted and new evidence has surfaced, Penal Code §1473.7 allows a motion to vacate based on that evidence, separate from §851.8.
- DOJ conviction review. The Post-Conviction Justice Unit evaluates credible, material evidence of innocence and can pursue exoneration when that evidence is clear and convincing, though review can take months.
- Parallel compensation claims. Some petitioners pursue administrative relief alongside a renewed court filing rather than waiting on one track alone.
Talk to counsel quickly after a denial. Deadlines for appeal are tight, and evidence has a way of becoming harder to locate the longer a case sits.
How Long It Takes and What It Costs
Realistically, expect months between filing and your hearing date, longer if the district attorney requests continuances or if forensic testing is involved. Costs vary based on how much investigation the case needs: attorney time for drafting and evidence-gathering is the largest factor, followed by expert or forensic fees and court filing costs.
Ask any attorney you're considering for a clear fee structure up front, whether that's a flat rate for the petition itself or a phased retainer tied to investigation, filing, and hearing stages.
Pro Tip: Organize your own timeline and documents before your first consultation. Petitioners who arrive with police reports, court minute orders, and a written chronology in hand generally spend less on attorney investigation time than those who leave that work to counsel from scratch.
How Rubin Law, P.C. Approaches Factual Innocence Cases
Rubin Law, P.C. built its criminal defense practice around frequent courtroom appearances across Los Angeles County, which means familiarity with how individual judges and prosecutors weigh evidence in exactly this kind of hearing.
For factual innocence petitions, that translates into practical work:
- Reviewing your arrest record and case file to identify weaknesses in the original probable-cause claim.
- Coordinating forensic retesting or independent expert review where it could help.
- Securing witness declarations and building the evidentiary timeline the hearing demands.
- Drafting and filing the petition, then arguing it at the hearing.
- Following up after a win to confirm agencies actually seal and destroy the record, and flagging a compensation claim under §4900 where appropriate.
Bring your arrest report, any court paperwork, and a rough timeline of events to your first consultation. That's enough for an initial review of whether §851.8 relief is realistic in your situation.
A defense attorney's take on factual innocence petitions
Factual innocence hearings are adversarial. The DA can and will contest your evidence, even after dismissing your case. What separates a strong petition from a weak one is usually preparation done early, before memories fade and records get harder to pull, alongside counsel who knows how the local courthouse actually runs these hearings.
Get Help Filing Your Factual Innocence Petition
A §851.8 petition is not a form you fill out alone and hope for the best. It's a contested hearing where the DA can introduce evidence against you, and the difference between a granted petition and a denial often comes down to how the initial filing was built. Rubin Law, P.C. handles this work the way it handles trial defense: with courtroom-tested familiarity with Los Angeles County judges and prosecutors, not a generic template.
Rubin Law, P.C. bills on a fee-for-service basis, either hourly or through a fixed retainer scoped to your case, so you know the cost structure before work begins. A first consultation covers your arrest record, the strength of your factual innocence claim, and what evidence still needs to be gathered. If your situation involves multiple charges or overlapping cases, that gets mapped out too. Rubin Law serves clients throughout Los Angeles County and nearby areas. Start by reaching out through the firm's Los Angeles County criminal defense page to schedule a case review.
Where to Verify Forms and Statutory Text
- Read the full statute directly on the California Legislative Information site for exact §851.8 language.
- Confirm form requirements and download BCIA 8270 through the California Courts Self-Help guide.
- Review conviction review procedures through the DOJ Post-Conviction Justice Unit.
- Call your county superior court clerk's office directly to confirm whether it accepts a local form instead of BCIA 8270.
Frequently Asked Questions
What's the difference between a factual innocence motion and expungement in California? Expungement under statutes like PC 1203.4 reduces the consequences of a conviction but leaves the arrest record intact. A factual innocence finding under §851.8 requires no prior conviction and results in your arrest record being sealed and eventually destroyed.
Can I file a factual innocence petition if I was convicted and later exonerated? Yes, but you'll typically need to vacate the conviction first, often through a motion under Penal Code §1473.7 or a habeas petition, before a court can separately find factual innocence.
Does a factual innocence finding guarantee compensation? Not automatically. It can trigger an automatic recommendation for compensation under Penal Code §4900 through the California Victim Compensation Board, but final approval depends on additional conditions and available appropriations.
How long does an arrest record stay visible before it's destroyed? After a court grants your petition, agencies generally must seal the record and hold it for three years from the arrest date before destroying it and the petition itself.
What if my case involved charges in more than one county? Each jurisdiction typically requires its own petition, since local superior courts handle §851.8 filings independently and forms can vary by county.
This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.
Sources
- Penal Code §851.8 — FindLaw
- California Penal Code §851.8 — Justia
- People v. Adair — California Supreme Court Resources (Stanford)
- Record cleaning: Arrest with no conviction | California Courts | Self Help
- Conviction Review | State of California - Department of Justice