Difference Between PC851.8 Motion for Factual Innocence and PC851.91 Motion to Seal Arrest Record


Many people don’t realize that getting arrested, even if you are never convicted, can have a drastic effect on the rest of your life. Having an arrest record creates a stigma, rightly or wrongly, that can cause you to miss out on opportunities such as schooling, renting or buying a home, and getting professional certifications and designations. If you have been arrested and are finding it difficult to do certain things because of your record, then you do have some options available to either remove the record or have it hidden from the public.

One option is to apply for a motion of factual innocence under PC 851.8, or to have your record sealed under PC 851.91. Both of these options carry different requirements to be eligible – and the veteran criminal law attorneys at Lamano Law Office can help determine which, if any, applies to your situation.

 

PC 851.8 – Motion for Factual Innocence

A factual innocence motion will show that you are deemed innocent of the charges that had been levied against you. You can only apply for this if no charges were filed against you after your arrest, the prosecution did not go through with attempting to convict you after charges were filed, or a jury acquitted you of the charges. In any one of those situations, you are viewed by the law as being innocent and can apply to have your record reflect that.

If the motion is successful, then the record of your arrest will be sealed for three years by the police department that arrested you in the first place. It will not be visible to the public, including potential educational institutions, employers, or landlords. After three years have lapsed, they are required to destroy the record completely so that there is no longer any trace of your arrest.

 

PC 851.91 – The C.A.R.E. Act

The Consumer Arrest Record Equity (C.A.R.E.) Act was enacted in 2018 as another avenue to have an arrest record expunged. Under this act, you can apply for expungement under the same eligibility requirements as a motion for factual innocence, but also includes a conviction that was reversed on appeal. There are some restrictions to apply under the C.A.R.E. act, however. They include that you were not arrested for murder or another crime for which there is no statute of limitations and you did not try to impede the efforts of prosecutors through identity fraud or other illegal means.

If your petition is granted by the court, then a notice is sent to certain parties to start the process of sealing your record. This includes the Department of Justice, the prosecution, and the arresting police department. The court must notify you that your record is sealed, and all of those entities must make sure that it is not accessible by anyone in the public. If anyone from any of these agencies disseminates information from your record, then they will be subject to civil penalties.

 

What is the Difference Between the C.A.R.E Act and a Motion for Factual Innocence?

On the surface, these two methods for having your arrest record hidden from public view seem very similar, but there are some key differences between them that are important to understand. For instance, with a factual innocence motion, there is no requirement to wait until the statute of limitations has expired. Possibly the biggest difference between the two is that if with the C.A.R.E. Act, you can still get your record sealed even if you were convicted. However, you must successfully appeal that conviction to be eligible.

Making a motion for factual innocence is a much more involved process than applying under the C.A.R.E Act. For a successful factual innocence motion, the law enforcement agency that made the arrest must respond within 60 days. If they do not respond, then you can request that the court seal and destroy your record, and the process is complete. However, the law enforcement agency has the right to object to your motion. If they do, then it is up to you to demonstrate that you should not have been arrested for the crime. The bar is very low for law enforcement to contest a motion for factual innocence since they only have to prove that they had reason to arrest you. That is a much lower threshold to meet than needing to show cause to charge you. With the C.A.R.E. Act, your petition can only be challenged based on your eligibility. That said, if your arrest was for a domestic violence charge, child or elder abuse, and you have a prior history of similar arrests, then you must make a formal declaration explaining why sealing your records are in the interests of justice.

 

Hire the Best Criminal Defense Lawyers Near You

If you apply to have your arrest record sealed then you want to make sure that you have the best representation possible. You need a knowledgeable and experienced criminal defense attorney on your side who will understand how to make the best argument on your behalf, both in your initial application and if it is contested.

Your arrest record does not have to be a black mark against you for the rest of your life. Contact the Bay Area criminal defense lawyers at Lamano Law Office at 510-842-0750 to determine whether you are eligible to have your record sealed or destroyed under PC 851.8 or PC 851.91.

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