You’re factually innocent…but you must wait the statutory time to motion for it.
Yep, you read the heading correctly. If Police arrest you for a crime, but then you’re factually innocent for that crime, you can still make a motion for factual innocence per California Penal Code 851.8 to have your arrest records sealed and destroyed…but you must first wait the statutory period the People have to file charges against you (usually it’s 1 year from arrest for misdemeanors, and 3 years for felonies).
Real quick, this is California law and may differ outside of California. Ok, let’s discuss:
This is from the February 27, 2018 decision of the Court of Appeals of California, First District, Division Three decision People v. Bedrossian.
In this case, Police arrested Defendant for felony false imprisonment and misdemeanor domestic battery. The People rejected the case, and Defendant had his arrest reduced to a detention per California Penal Code 849.5.
But he also wanted his motion for factual innocence granted and his arrest records sealed and destroyed, as he is an “oral surgeon who frequently travels internationally to perform surgeries on behalf of charities. He also consults and testifies as an expert witness in his field.” “He is concerned that his arrest record will subject him to additional scrutiny and potential problems with foreign and domestic customs. As public records background checks are commonplace by attorneys, he will likely not be retained by counsel fearing that he may be impeached or embarrassed by the introduction of facts regarding his arrest.”
The People argued they have a governmental interests to still prosecute if they want to: “The district attorney’s decision not to pursue a case does not mean that the district attorney will not reconsider that decision if additional evidence is uncovered or additional witnesses come forth in the future.” The Court agrees.
Defendant also argued Equal Protections for the fact he needs to wait different timelines to motion for factual innocence based on the felony (3 years) versus the misdemeanor (1 year). The Court disagrees: “Persons arrested for the commission of a felony are suspected of having committed a more serious offense and face more serious consequences than those arrested for a misdemeanor”