Legal Question in Criminal Law in California

Re: Arrest Record

Again, you need to file a penal code section 851.8 petition to have the record of arrest destroyed. It needs to be served on the arresting agency as well as the District Attorney's office. If the arresting agency does not respond within 60 days, your petition is deemed rejected. At that point you can file a motion with the court and argue the merits of your request. A record of arrest will stand unless you can show that no reasonable cause existed to believe that you committed the offense for which the arrest was made. Partial text of penal code section 851.8 follows: "In any court hearing to determine the factual innocence of a

party, the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. If the court

finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made." It's important to remember that "reasonable cause" to believe that a person commited the arresting offense is a lower burden than "probable cause" and a much, much lower burden that that which is needed to convict a person of that offense - wich is proof "beyond a reasonable doubt." A District Attorney may not file charges against a person who has been arrested because of his/her determination that there is not enough evidence to prove beyond a reasonable doubt that the individual committed the crime. But that does not necessarily mean that there wasn't reasonable cause for the law enforcement officer to believe that a crime was committed and to make the arrest. Do you see the difference?

Re: Arrest Record

You have to be proved guilty before you can be convicted, not arrested. Your arrest record does not say you were convicted, so there is no inconsistency. Arrest records are not expunged automatically in the absence of a conviction. Expungement is an extraordinary remedy which requires an extraordinary showing on your part.

Re: Arrest Record

The fact that you were not charged does NOT prove you were innocent. D.A.'s decline to file on cases for lots of reasons, including some where he believes the accused is guilty, and some where the accused IS in fact guilty.

Therefore, non-filing of charges, and even being found "not guilty" at trial do not "Prove you innocent".

If you want to go to the extraordinary step of getting a judge to sign an order that you in fact WERE innocent of the crime for which you were arrested, then the Burden of proof IS on you, not the prosecutor. If the D.A. HAD charged you, the burden of proof would have been on HIM, but he didn't.

You have not given us any facts on your case, so I have no idea whether you are actually innocent or were just lucky not to be charged. What I do know is this: the ONLY way you can get your arrest record erased is by winning a "Petition for Factual Innocence". In order to do that, you pretty much have to BE innocent. Make sense?

Your lawyer who you hired after you got arrested didn't have to do much, since you never got charged. If the facts of your case do clearly show that you committed no crime, then the only advice he gave you was wrong. There IS something you can do: the Factual Innocence Petition.

If his review of the facts showed that you probably DID do something illegal but you escaped prosecution for some technical reason or they could not find a witness, then his advice is probably correct: there is nothing to be done.

Right now, only you know the answer to those questions. I hope this makes it clearer.

To read more about factual innocence, you can review this article:

http://lawyer-expungement.com/petition.htm