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Getting rid of your arrest record: The facts of ‘factual innocence’

California Penal Code 851.8 PCMany of the questions California criminal defense attorneys are often asked center around how someone can get their arrest records, criminal records, juvenile records, etc. sealed, expunged, destroyed, and any other number of verbs that translate to keeping the past in the past and moving forward with your life after a difficult time.

In the upcoming series of postings, we’ll take a look at the process in California required for moving forward from an arrest or conviction, and we start today by taking a look at the process of getting your arrest record sealed and destroyed if you are found “factually innocent.”

What is a finding of “factual innocence’?

Ethan Morse, 18, the son of Merced County District Attorney Larry Morse II, was arrested last year and charged with murder in connection with the March 30, 2013, slaying of Bernabed Hernandez-Canela, 18, who was gunned down outside a large house party.

Ethan Morse was cleared of any wrongdoing in the death after a four-day preliminary hearing in November 2014 when the judge found that Morse was “factually innocent,” and last week a Merced Superior Court judge ordered Ethan Morse’s arrest records destroyed.

So what exactly is a finding of “factual innocence”?

In order to understand factual innocence, it helps to understand a little bit about what happens when you are arrested. After an arrest, the arresting police officer brings the reason for the arrest to a prosecutor, who then decides whether or not to charge you with a particular crime.

If you think the police officer or prosecutor did make a mistake, you (or your criminal defense attorney) can then file a motion with the court for a finding of “factual innocence.”
More often than not, police officers and prosecutors do their jobs and do them competently and well.  Sometimes, however, police officers and even prosecutors do make mistakes in arrests and in filing charges. If you think the police officer or prosecutor did make a mistake, you (or your criminal defense attorney) can then file a motion with the court for a finding of “factual innocence.” The court will then hear arguments on this motion from both sides before trial in something called a preliminary (pre-trial) hearing.

What will happen during a preliminary hearing on factual innocence?

Getting a finding of factual innocence is very difficult. Generally the DA and law enforcement fight very hard because theses motions call the entire investigation into question. Granting the motion means they should never have made the arrest.
According to California Penal Code 851.8 PC, the petitioner (the defendant looking to show that he or she is factually innocent) has the initial burden of proof showing that no reasonable cause exists to believe that the arrestee committed the offense that he or she was arrested for.

If the defendant is able to show the court that there was no reasonable cause, the burden shifts to the respondent (often, the prosecutor) to show that reasonable cause does exist that the petitioner committed the offense for which the arrest is made. The judge then takes a look at the arguments on both sides and makes the decision either way of factual innocence.

“Getting a finding of factual innocence is very difficult,” says Fresno defense attorney Mark Coleman, a partner at the Law Offices of Nuttall & Coleman, which has argued a number of these with a fairly high success rate.

“Generally the DA and law enforcement fight very hard because theses motions call the entire investigation into question. Granting the motion means they should never have made the arrest,” Coleman says.

Using the Ethan Morse case as an example, Coleman says, the “fact that the DA’s son was granted a finding of factual innocence means the police were flat wrong: (Ethan Morse) didn’t do it, so he should never have been charged.”

What can we learn about factual innocence from the Ethan Morse case?

The Ethan Morse case “exemplifies the need for competent and aggressive counsel. The police and prosecutors do make mistakes,” Coleman says.

In the finding of factual innocence, the court doesn’t just say that there isn’t enough evidence to move forward. “It means the court found he did not commit this offense,” he says.

What happens after a finding of “factual innocence”?

Like in the Ethan Morse case, if you are found factually innocent of a charge, the court, on its own or on your lawyer’s motion, can order the sealing and destruction of your arrest record and related files.

This means that records related to the arrest/charge will be permanently deleted, and your record will read like the arrest never occurred. Because of this, your finding of factual innocence and the related arrest is also not admissible as evidence in any future actions, except those related to hearings with the California Victim Compensation and Government Claims Board.

Sources: Arrest record of DA’s son to be ‘sealed and destroyed’, judge says (Merced Sun-Star) | California Penal Code