An BOGUS arrest was DISMISSED in Court and I need to know what form I need to file to have it COMPLETELY taken off my record?

Not knowing what exactly your son's attorney has advised I will address only the question presented here and not any advice given to your son. Basically, your son can petition the Court for a finding of factual innocence by way of a motion for judicial clearance.

I recommend seeking the advice of an attorney as the burden for this finding is very high. In asking the Court to make such a finding, it is the petitioner's (your son's) burden to prove to the Court that there is no reasonable cause to believe that he committed the charged offense. Again, this is a very high burden of proof. Once he has met this burden, the prosecutor, if it so chooses, may attempt to rebut or argue against the petitioner.

There are two sections of the Penal Code that allow for this finding: Penal Code sections 530.6, and 851.8.

The first, PC section 530.6, is contained in the identity theft section of the Penal Code. There is a form, available at www.courtinfo.ca.gov, which may be used to petition the Court for a finding of factual innocence under this section. Note that this section allows for a finding of factual innocence in certain situations, namely where the perpetrator of the identity theft is known and has been arrested or charged. The relief under this section includes sealing or deleting the record of arrest or charging of the victim of identity theft.

The other section, PC 851.8, also allows a Court to make such a finding in situations involving identity theft or other situations not involving identity theft. In this case, the remedy is that the law enforcement agency with jurisdiction over the case, and the Department of Justice, must seal its records of the arrest and charge for a period of three years, and thereafter destroy the records. Practically speaking it erases all record that your son was arrested and charged with the offense, which is preferable to a simple dismissal of the charges.

I prefer to bring a motion for judicial clearance pursuant to, and the relief available under, PC 851.8. However, the facts of your son's particular situation should dictate how he should proceed. Again, it is advisable to seek an attorney's assistance if possible.

I have to agree with Ms. Autumn Renee Hajmohammad that this is not something your son could do on his own. Relief under Penal Code Section 851.8 is tricky because the Legislature made a couple of major errors in drafting this law. These errors are the subject of pending appeals right now, but until the Appellate Courts straighten this out, it is problematic.

One such glitch is the time restrictions on bringing such a petition. It makes a difference whether your son was charged with a crime by the D.A. who then dismissed the charge, or whether they reviewed the police reports and decided never to charge him. The difference is whether you can petition right now for relief or whether you have to spin your wheels for 14 months waiting for the police department to respond to a Factual Innocence petition from you, when in practice, in my experience all police departments ignore them. Then there is the glitch that you have to wait until the statute of limitations expires to bring your motion.

On a felony like a burglary you have to wait three years for the statute to expire, which automatically runs you afoul of the law that says you have to bring the petition no later than 2 years after the arrest.

Your son most certainly needs experienced legal help on this, because even a lot of judges don't understand this statute, not to mention the prosecutors who may think that NO petition is timely. For further information on this issue, you can look at http://lawyer-expungement.com.

On the bright side, if the evidence of mistaken identity is as clear as you suggest, your son stands an excellent chance of obtaining this relief.