Dismissal with Finding of Factual Innocence

by feldmanwallach

December 5, 2013,

Jason Feldman negotiated a rare plea deal that involved a dismissal with a finding of factual innocence.  The defendant was charged with Felony Vandalism (Penal Code § 59(a)).  However, day of trial, Mr. Feldman arranged for a plea of no contest to Misdemeanor Disturbing the Peace (Penal Code § 415).  The defendant was ordered to attend 10 anger management classes and, at sentencing next month, the charge will be dismissed with a finding of factual innocence.

A finding of factual innocence is a godsend to someone who has been wrongfully arrested. And for anyone who may have been properly apprehended but was later acquitted of the charges, a finding of factual innocence provides something a jury’s verdict cannot.   When a jury acquits someone, it simply means that the prosecution did not meet the burden of proof for guilt; it does not necessarily mean the defendant didn’t commit the crime.

Upon a finding of factual innocence, the law states that “the arrest shall be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence.” In addition, the statute requires the law enforcement agency that has jurisdiction over the offense (or the court) to issue a written declaration to the arrestee stating that he or she is factually innocent (Penal Code § 851.8(f)).

A finding of factual innocence prevents current and potential employers, as well as anyone else seeking public records, from having access to any of the records that reveal the arrest. Although Labor Code § 432.7(a) generally prohibits an employer from asking about any arrest that did not result in conviction, job inquiries are only the tip of the iceberg. An arrest record can have a dramatic impact on a host of matters: child custody, adoption, school admission, licensing, credit, insurance premiums, and—perhaps most important of all—a person’s reputation in the community.