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  1. #1

    Default Dismissed Charge and California Section 851.8

    My question involves expungements or pardons for the state of: California

    A little background first:
    I was arrested back in 1999 for a misdemeanor under the influence of a controlled substance, section 11550(a). I don't remember if I pled guilty or nolo, but I was sentenced to 18 months probabtion and I had to complete a "drug diversion" program. After I completed the probabtion and drug diversion, both were successfully terminated and the criminal proceedings were dismissed.

    My questions:
    1) I know that in CA, "proof of factual innocence" (PFI) has to be proven to get a petition signed under PC 851.8, which is a ruling to seal and destroy all police and court records pertaining to the case.

    Does my dismissal qualify as PFI under section 851.8?

    2) I just found out there is a statute of limitations of 2 years after the arrest to file a 851.8 petition. But I read that under 851.8 (i), an extension for longer than 2 years can be granted for a good cause.

    How likely am I to get the judge to believe that I was simply unaware that the charge was still on my record, which is why I did not file in the 2 year period?

    3) I have been reading that a section 851.8 petition to seal a CR in CA can be very complicated, and it is wise to hire an attorney. However, I am out of work, and almost homeless, and in dire financial straits at this time, and I really cannot afford one. Since I no longer live in the same county, I don't think the public defender can represent me. In fact, they told they couldn't when I called to ask.

    If I were to hire an attorney, what would you estimate my chances of successfully getting my record sealed under 851.8? Or are these petitions rarely ever granted, and would I merely be wasting a lot of money I cannot afford to spend on an attorney for nothing?

    I am trying to determine:
    Do I really have a chance at sealing this record, or am I just spinning my wheels?

    If anyone could shed light on this, I'd really appreciate it. Thanks.

  2. #2
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    Default Re: Dismissed Charge and California Section 851.8

    A guilty plea would involve your confessing under oath, so obviously that isn't proof of innocence - quite the opposite. You don't have to allocute for a no contest plea - that's the point of the plea - but it's in no way evidence of innocence.

    I doubt that the judge will be impressed with the idea that you thought you didn't have a criminal record and thus should be excused from statutory deadlines, but there's only one way to find out.

    So far I don't give you much of a chance of success with or without a lawyer. Consult a lawyer or two and get their assessment based upon the full facts of your case.

  3. #3

    Default Re: Dismissed Charge and California Section 851.8

    Quote Quoting Mr. Knowitall
    View Post
    A guilty plea would involve your confessing under oath, so obviously that isn't proof of innocence - quite the opposite. You don't have to allocute for a no contest plea - that's the point of the plea - but it's in no way evidence of innocence.

    I doubt that the judge will be impressed with the idea that you thought you didn't have a criminal record and thus should be excused from statutory deadlines, but there's only one way to find out.

    So far I don't give you much of a chance of success with or without a lawyer. Consult a lawyer or two and get their assessment based upon the full facts of your case.
    Is the main reason you don't think I will succeed the statute of limitations?

    You know what really sucks, is that I originally hired an attorney for this case because I made too much money at the time to qualify for a public defender. The attorney was supposed to advise me in all matters before during and after court. He charged me a fortune.

    He totally screwed me over and didn't even show up for my court appearance and left me to fend for myself in front of the judge. He didn't even bother to call me and let me know. I didn't know what to do, so I pled either guilty or nolo and I was sentenced right then and there.

    After court, I called him, and he gave an excuse of "Sorry I didn't show up, but I had an emergency." When I asked him what I should do in the future regarding the case, he told me he'd have to charge me more money. Since he didn't even show for my case (as he agreed to do) the last thing I was going to do was give him another dime! So I asked him for a refund, and he said, "you can sue me for a refund" and hung the phone up on me. That was the last time I spoke with him, and I never even bothered with the refund... Suing an attorney? ... LOL... like I would've even had a chance!

    Interesting fact:
    He was disbarred in CA in 2008 for screwing one of his clients over, an elderly woman, over-charging for over $65,000 and swindling the deeds of her house and property away from her. What a crook! He should be in jail! (I haven't checked, but he might be)

    QUESTION:
    Since my attorney was so corrupt and unethical (and now disbarred) do you think that may give me a good reason to say I was ill-advised, as far as helping me with this petition?

    The reason I am asking is that I went back to college, graduated (with high honors) with a Bachelor's degree from a university, and now I am seeking professional employment as a CPA. This old charge is really hurting me. Several CPA jobs have almost hired me, only to turn me down after a "background check."

    I realize I broke the law 12 years ago, but nobody should have to suffer their whole lives for something like this. This really stinks!

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