Factual Finding of Innocence


A person against whom a charge has been dismissed can petition the court for a finding of factual innocence.

“A finding of factual innocence and an order for the sealing and destruction of records pursuant to this section shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.”  Cal. Penal Code, § 851.8

The judge has the ultimate say in the finding of factual innocense.  The judge’s decision will likely turn on the evidence before the court.  For example, if a charge is dismissed solely because the defendant pleaded to another charge, then the court will probably not find that the defendant is factually innocent.  However, if a charge is dismissed because the evidence did not support the charge, or because the evidence actually refutes the charge, then the judge will grant the finding of factual innocence. Cal. Penal Code, § 851.8

There are some benefits to obtaining a finding of factual innocence.  When a person is arrested and charged with a crime, the fact of that arrest and/or criminal filing shows up on the person’s rap sheet, even if the charges are ultimately dismissed.  There have been countless occasions on which DAs have brought up my client’s prior arrests and cases to paint him in a negative light, even if the charges were eventually dismissed.  More importantly, future employers and licensing agencies may obtain access to a person’s criminal history and decide not to even take a chance on someone who has been arrested for certain serious offenses.  Moreover, if an applicant ever has to explain a prior arrest it sounds better if he can say that he was found factually innocent of the charge.  The finding of factual innocence removes the cloud of suspicion and constitutes an emphatic judicial statement that the person did not commit a particular crime.  Thus, I think a person should obtain a finding of factual innocence, especially as to a serious charge, if at all possible.  (Stratton S. Barbee Esq.)


Whenever a person is acquitted of a charge and it appears to the judge presiding at the trial wherein such acquittal occurred that the defendant was factually innocent of the charge, the judge may order that the records in the case be sealed, including any record of arrest or detention, upon the written or oral motion of any party in the case or the court, and with notice to all parties to the case.  If such an order is made, the court shall give to the defendant a copy of such order and inform the defendant that he may thereafter state that he was not arrested for such charge and that he was found innocent of such charge by the court. California Penal Code §851.85

Almost all criminal defendants plead guilty, and almost all of them do so because they are guilty. The ones who take their cases to trial are also overwhelmingly guilty, at least in the sense that there is no issue about whether they committed the charged acts. The relatively few felony cases that actually go to trial in America are typically about moral guilt, not factual guilt. That is, they are about the level of the defendant’s culpability and therefore the level of the crime of which he will be convicted.

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Consumer Resources & Links

Sample Motion for Factual Innocence
Carico Law.com/

Factual Innocence – Privacy.CA.Gov  Identity Theft

Expungement (Kinsey Law.com)

Procedure for Expungement & Factual Innocence – Richard Duqette, Esq.

Shouse law.com/

Child Pages

How to “seal & destroy” arrest records in California 

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2 comments on “Factual Finding of Innocense

  1. If someone has been held in jail for 8 months plus
    and is finally found to be factually innocent and released IMMEDIATELY, is that person entitled to any sort of financial compensation.

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