I was arrested for a crime I didn't commit, I was never prosecuted or even got to go to court. I would like to file a 851.8 but I think I need a lawyer to prove factual innocence (not sure what I would need). How much would this cost? I know how to submit the form as per the court clerk's instructions but I feel like there would be more required when I get to see the judge. Please advice.
Criminal Defense Attorney
Penal Code § 851.8 applies to any wrongful arrest and all the documents generated in conjunction with the arrest (the booking photo, the fingerprints and the arrest report). The process, however, is not quick or easy. The process can take well over ninety days. Depending on the facts of the case and the time needed for the lawyer to appreciate the issues, I would expect a fee of under $2,500 and maybe even under $1,000.
For anyone whose arrest did not lead to a case filing, the first step in filing a petition for factual innocence (PFI) is to petition the arresting agency, using a form that asks for certain information. If the police agree that you were factually innocent, the police themselves will seal the arrest record for three years. This means that a court order is required to unseal the record. The layer of protection allows judicial oversight into who accesses your record. After the three year period expires, the police will destroy all records associated with the arrest.
If the police do not grant your request, or if they fail to respond within sixty days, you may seek relief from the court. The court is also the first step for anyone whose case was dismissed after charges were filed or for anyone acquitted by a jury.
In filing a petition for factual innocence, the burden is on the defendant to prove that there was no reasonable cause for the arrest. Reasonable cause is defined as a “state of facts that would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime” (People v. Bleich (2009) 178 Cal.App.4th 292, 293).
Fortunately, the strict rules of evidence that would apply in trial do not apply in the petition. In other words, the court may consider one’s employment history, education, community involvement, volunteer activities and family history.
However, this also means that the court can consider the entirety of the police report (even if it was successfully suppressed from evidence earlier in the case). It is a common mistake to argue that the police report was inconclusive. The correct standard is that the police report must exonerate you, not just raise a substantial doubt as to one’s guilt (People v. Medina (2009) 178 Cal.App.4th 1092, 1101).
A hearing on the petition will then follow. If one’s petition is granted, the court order will direct the arresting law enforcement agency, the Department of Justice and all local, state and federal enforcement agencies to which the records were released to destroy the arrest records as well as the request to destroy the records. The documents must be physically destroyed, as well as all entries or notations upon the records pertaining to the arrest.
Most importantly, having the petition granted allows one to legally say “No” if asked have you ever been arrested for a crime.
If there is a pending police misconduct or civil rights violation lawsuit pending, the records will not be destroyed until the civil case is resolved. This allows the sealed records to be opened for admission into evidence in the civil lawsuit, if necessary.
Sealing and destroying juvenile records involve a different eligibility criteria (Welfare & Institutions Code §§ 781, 781.5).
Criminal Defense Attorney
The petition for finding of factual innocence is not that complicated. If the police or the prosecuting agency contests your petition then it is a good idea to hire an experience attorney. Contact attorneys in your area that you trust and As to the cost, it depends on the attorney.
This answer does not create an attorney client relationship.