I'm not aware that you're legally prevented from bringing and prevailing on a petition for factual innocence if you reached a civil settlement involving some of the same facts and issues that may have caused you to be arrested. Civil settlements often don't involve any admissions of guilt or even negligent responsibility, they are simply agreements between parties to an actual or potential civil lawsuit where the parties mutually agree to pay and accept a certain payment in exchange for agreeing not to file or agreeing to dismiss a pending a civil lawsuit. You should definitely not attempt to file a petition for factual innocence by yourself which almost surely will be denied. Even with an attorney you likely face an uphill battle unless the District Attorney decides not to oppose your attorney's motion (likely after looking at further investigation conducted by your attorney). Specifically in regards to the civil matter that is not settled, some of the interrogatories or other civil discovery material may well be admissible under the petition for factual innocence hearing as there almost no limits (outside the hearing judge's discretion) that are not admissible: "e district attorney
may present evidence to the court at the hearing. Notwithstanding Section 1538.5 or 1539, any judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant, and reliable" (cal. pen. code 851.8). If the motion is going to be opposed by prosecutor (and judge is likely to rule against) it is not in your interest to simply run a "hail mary motion" in the hopes that it will be granted since now there will be a public hearing ruling that you were not factually innocent. Hire an attorney who has done petitions for factual innocence hearings before. All the criminal and civil records must be reviewed and the DA contacted before a decision can be made.
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Eventually, you will have to PROVE your innocence, which means any admissible evidence can by used against to during the motion hearing. As a result, the fact that the DA did not file charges may be the result of other factors unknown to you, but that may not lead to the conclusion that you are factually innocent. Also, tread lightly and pay attention to the statute of limitations. You do not want to testify during the hearing on this motion, then have that testimony re-open the case.
I agree with Mr. Bajaj. First, just because the DA did not file charges, or dismissed them, does not mean you are factually innocent. Second, any evidence that is relevant can be used against you when you try to prove you were factually innocent.
In order to prevail on a motion for factual innocence (Penal Code 851.8) you must show that you were innocent. In other words the evidence must show that "no person of ordinary care and prudence would believe and conscientiously entertain any honest and strong suspicion that the person arrested or acquitted is guilty" This is a much higher standard that merely being not guilty. The fact that you came to a settlement on the civil claim in of it self will not be a bar to obtaining a declaration of factual innocence but it is certainly a factor that the DA’s office will consider when deciding whether to submit an opposition to your motion. Under certain circumstances the court can also take this fact into account. Also note that you have up to 2 years after the date of the arrest to file this motion.
You should consider hiring an experienced criminal defense attorney to file such a motion.
I agree with my colleagues. Also, the wording of the terms and wording of the civil settlement will effect your chances of success on a finding of factual innocence.
If you reached a settlement, I would be inclined to believe that there was some level culpability or involvement present or you would have likely gone to trial. Given the stringent requirements of PC § 851.8, it is a longshot to get the record of arrest expunged due to the need for a finding of factual innocence. Most importantly would be the fact that the D/A could always reconsider filing the charges as long as they are within the Statute of Limitations.
Criminal defense Criminal charges Statute of limitations for criminal charges Criminal charges for embezzlement Defenses for criminal charges Criminal arrest Criminal court Admissible evidence in criminal cases Criminal record Expungement of criminal record Lawsuits and disputes Sealing a criminal record Case dismissed