May 13, 2019 By Paul Wallin

Factual Innocence and the C.A.R.E. Act: The Difference Between PC 851.8 and PC 851.91

An arrest record can haunt you for the rest of your life. Having an arrest on your record could cause you to be denied the opportunity to attend the college of your choice, prevent you from pursuing a career in your desired field, and make you ineligible to obtain a professional license. Regardless of whether you were convicted of the crime, an arrest could have a negative impact on your life.

The good news is that an experienced attorney at Wallin & Klarich may be able to help you have your arrest record sealed and/or destroyed. There are two options to accomplish this: a factual innocence motion under PC 851.8 and sealing your record under PC 851.91. Which of these options would be best for you?

Factual Innocence Motion (PC 851.8)

You are eligible to apply for a finding of factual innocence under Penal Code Section 851.8 if one of the following is true:

  • You were arrested and no charges were filed;
  • You were arrested and charged, but did the case did not result in a conviction; or
  • You were acquitted by a jury

The C.A.R.E. Act (PC 851.91)

Similarly, under Penal Code Section 851.91 (“the C.A.R.E. Act”), you are eligible to request your arrest record be sealed if:

  • You were arrested, no charges filed, AND the statute of limitations has expired on each charge that you were arrested for;
  • You were arrested, and charged, but the case did not result in a conviction;
  • You were acquitted by a jury; or
  • Your conviction was reversed on appeal

Additionally, to be eligible to petition the Court under 851.91 it must also be true that:

  • You were not arrested for murder or for any crime which that does not have a statute of limitations;
  • You did not try to evade authorities’ efforts to prosecute you;
  • You did not engage in identity fraud to evade authorities’ efforts to prosecute you and you were not subsequently charged with identity fraud for having done so.

The Differences Between Factual Innocence and C.A.R.E.

The key differences between PC 851.8 and PC 851.91 are:

  • You do not have to wait for the statute of limitations to expire to apply for a factual innocence motion; AND
  • If you were convicted, you can still apply to have your arrest record sealed under the C.A.R.E. Act if your appeal is successful. Importantly, a factual innocence motion is a much more complicated process. First, you must petition the law enforcement agency asking that they seal and destroy your arrest record. If they refuse or take no action within 60 days, your attorney will ask the court to seal and destroy your arrest record. However, if the law enforcement agency objects, your attorney will have to prove that the police did not have sufficient evidence to suspect you committed the crime for which you were arrested. This can be difficult as law enforcement need only show that there was good cause to arrest you, even if you were ultimately not charged.Under PC 851.91, the prosecutor can only challenge your request on grounds of eligibility. However, you will have to provide the court with a declaration that explains why sealing your record is in the interests of justice if:
  • Your arrest was related to domestic violence, elder abuse or child abuse, and
  • You have a record of being arrested for similar behaviorIn that case, the court has the discretion to deny your request to seal your arrest record.

    Why You Should Hire a Lawyer to Seal Your Arrest Record

The process of having your arrest record sealed and destroyed can be very complicated. That is why you should seek the help of an experienced criminal defense attorney. Your attorney can help you file a motion and make the necessary arguments to the court if your application is challenged. Your attorney will be there every step of the process to protect your rights.

Contact Wallin & Klarich Today for Help Cleaning Your Criminal Record

Don’t let your arrest record continue to burden you. Contact our skilled attorneys at Wallin & Klarich today so we can determine if you’re eligible to seal your arrest record. Our knowledgeable criminal lawyers have been helping clients clean their criminal records for more than 40 years. Let us help you now.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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