A person who is eligible to have a DNA sample and profile destroyed can make the request directly to the CAL-DNA databank or file a motion in court for a court order that orders this material to be destroyed. California Penal Code Section 299 sets forth the criteria for who is elible to have DNA stored at the Database destroyed.
Penal Code section 299, subdivision (a), allows a person whose DNA profile has bee included in the state’s data bank to request that these materials be expunged (removed) when the underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed, the defendant has been found factually innocent of the underlying offense pursuant to Section 851.8, the defendant has been found not guilty, or the defendant has been acquitted of the underlying offense.
The court issuing the reversal, dismissal, or acquittal shall order the expungement and shall send a copy of that order to the Department of Justice DNA Laboratory Director. Upon receipt of the court order, the Department of Justice shall expunge all identifiable information in the data bank and any criminal identification records pertaining to the person.
Penal Code section 299, subdivision (b)(1), allows a person whose DNA profile has been included in a data bank to make a written request to expunge information and materials from the data bank. The person requesting the data bank entry to be expunged must send a copy of his or her request to the trial court that entered the conviction or rendered disposition in the case, to the DNA Laboratory of the Department of Justice, and to the prosecuting attorney of the county in which he or she was convicted, with proof of service on all parties. The court has the discretion to grant or deny the request for expungement. The denial of a request for expungement is an nonappealable order and is not reviewed by a petition for a writ.
Penal Code section 299, subdivision (c), directs the Department of Justice to destroy the specimen or sample collected from the person and any criminal identification records pertaining to the person, unless the department determines that the person has otherwise become obligated
to submit a blood specimen as a result of a separate conviction, juvenile adjudication, or finding of guilty or not guilty by reason of insanity for an offense described in subdivision (a) of Section
296, or as a condition of a plea.
But the Department of Justice is not required to destroy an autoradiograph or other item obtained from a blood specimen if evidence relating to another person subject to the provisions of this
chapter would thereby be destroyed.
Thus, you can make a request that these records be destroyed directly to the state’s databank or make a written request for a court order that the records be destroyed to the trial court. To qualify, you must provide sufficient documentation of identity, legal status and criminal history to the California Department of Justice, DNA Database Program (CAL-DNA).
If CAL-DNA receives sufficient documentation showing that an individual meets the criteria for expungement of his or her DNA sample, CAL-DNA will review and research the request and issue a response to the petitioner indicating that the expungement was completed and the sample destroyed, or notify the petitioner of the legal reason the Department is required to retain the sample and profile.
If all of the documentation is provided or readily available, expungements using this expedited procedure are generally completed within 2 to 4 weeks.
The state reports that to date, over 96% of expungement requests have resulted in expungement, removal, or, in a small number of those cases, confirmation that no buccal sample had been submitted under the name provided. Denials are based on statutory requirements, generally because the offender has another qualifying offense.
You can mail a request for DNA DATABASE sample expungement to:
California Department of Justice
CAL-DNA Data Bank Program
Attn: Expungement Requests
1001 W. Cutting Blvd., Suite 110
Richmond, CA 94804
NOTE: If a DNA database sample expungement request is denied, a person may still initiate a court proceeding by completing, filing, and serving the California Judicial Council form, pdf on the CAL-DNA Program and the District Attorney's Office of the County where the DNA sample was collected.
If this procedure appears too complicated, you can contact an attorney to write the letter or make the motion in court to have the DNA evidence destroyed. If you are in the Los Angeles metro area, and you would like a recommendation for an experienced criminal defense attorney, you can contact me at esserlaw@gmail.com .
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.
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