Legal Question in Criminal Law in California

Re: Clear arrest record

I am a factual innocence specialist situated in Northern California. I mention that because I want you to understand that I have no interest in representing you, nor will I try to refer you to anyone in particular. Thus, what I have to say gains me nothing, but takes up my time.

I am doing this to help you, but you are not going to like the info I have for you. It is this: if you are attempting to prosecute your own 851.8 petition, DON'T DO IT! Of all the motions in criminal court that can be made, this one is the stickiest. The statute is poorly drafted, and even has inconsistent provisions in itself. The published appellate cases on factual innocence contain misleading and even incorrect information.

I have found that most prosecutors and many judges do not understand the statute. Example: many judges think that if the cop had "probable cause" to arrest you, you cannot get factual innocence relief. Do you know more than the judges? Too bad, because you HAVE TO in order to win.

The question you asked is level one (1) in difficulty on a scale from 1-100. Mail is fine, and you serve BEFORE filing, not after. However, you have dozens of 100 level difficulty questions ahead of you in this petition.

Do you know what exhibits to attach? Do you know WHEN to file? Do you know what constitutes a good excuse for early or late filing? Do you understand what the judge's standard is for deciding the petition? Do you know what to say if the judge says he can't consider your evidence? Do you know WHAT to ask the judge to seal? Do you know how to get the judge's order obeyed even if you win? Do you know if the D.A.'s file can be sealed and destroyed? The Court's docket?

Do you know the difference between reasonable cause and probable cause? Which cases have you cited in your brief?

You likely only get one shot at this petition. If it is important to you, why would you risk all on your lawyering skills? Do you also do your own dental and surgical work?

I doubt you will listen to me. You may be one of those who think all lawyers are crooks and they don't do anything for their fees. Handle this yourself and you will learn the truth, but too late.

Good luck.

Re: Clear arrest record

The petition needs to be served on the law enforcement agency and DA's office. It is not filed with the Court(the petition is not the same thing as the motion to be filed with the Court at the expiration of the 60 days). Certified mail, return receipt requested, along with a proof of service form filled out by the person who mailed it, stating they mailed the petition via certified mail. After 60 days (plus 5 additional days if petition is mailed), your petition is deemed rejected if the agency(ies) do not respond - which is likely. Then you will file the notice of motion and motion with points and authorities (which is not the same thing as the petition) for a declaration of factual innocence pursuant to penal code section 851.8 with the Superior Court. This notice and motion will have to be personally served on the law enforcement agency and the DA's office using a process server or someone else willing to personally serve the agencies. A proof of service of the motion is required.

Re: Clear arrest record

To be safe I'd use a process server. Good luck. You may view our website at www.wallinlaw.com. David Wallin