2009 California Penal Code - Section 299 :: Article 5. Expungement Of Information

PENAL CODE
SECTION 299

299.  (a) A person whose DNA profile has been included in the data
bank pursuant to this chapter shall have his or her DNA specimen and
sample destroyed and searchable database profile expunged from the
data bank program pursuant to the procedures set forth in subdivision
(b) if the person has no past or present offense or pending charge
which qualifies that person for inclusion within the state's DNA and
Forensic Identification Database and Data Bank Program and there
otherwise is no legal basis for retaining the specimen or sample or
searchable profile.
   (b) Pursuant to subdivision (a), a person who has no past or
present qualifying offense, and for whom there otherwise is no legal
basis for retaining the specimen or sample or searchable profile, may
make a written request to have his or her specimen and sample
destroyed and searchable database profile expunged from the data bank
program if:
   (1) Following arrest, no accusatory pleading has been filed within
the applicable period allowed by law charging the person with a
qualifying offense as set forth in subdivision (a) of Section 296 or
if the charges which served as the basis for including the DNA
profile in the state's DNA Database and Data Bank Identification
Program have been dismissed prior to adjudication by a trier of fact;
   (2) The underlying conviction or disposition serving as the basis
for including the DNA profile has been reversed and the case
dismissed;
   (3) The person has been found factually innocent of the underlying
offense pursuant to Section 851.8, or Section 781.5 of the Welfare
and Institutions Code; or
   (4) The defendant has been found not guilty or the defendant has
been acquitted of the underlying offense.
   (c) (1) The person requesting the data bank entry to be expunged
must send a copy of his or her request to the trial court of the
county where the arrest occurred, or 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 arrested or, convicted, or adjudicated, 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 a nonappealable order and shall not be reviewed by
petition for writ.
   (2) Except as provided below, the Department of Justice shall
destroy a specimen and sample and expunge the searchable DNA database
profile pertaining to the person who has no present or past
qualifying offense of record upon receipt of a court order that
verifies the applicant has made the necessary showing at a noticed
hearing, and that includes all of the following:
   (A) The written request for expungement pursuant to this section.
   (B) A certified copy of the court order reversing and dismissing
the conviction or case, or a letter from the district attorney
certifying that no accusatory pleading has been filed or the charges
which served as the basis for collecting a DNA specimen and sample
have been dismissed prior to adjudication by a trier of fact, the
defendant has been found factually innocent, the defendant has been
found not guilty, the defendant has been acquitted of the underlying
offense, or the underlying conviction has been reversed and the case
dismissed.
   (C) Proof of written notice to the prosecuting attorney and the
Department of Justice that expungement has been requested.
   (D) A court order verifying that no retrial or appeal of the case
is pending, that it has been at least 180 days since the defendant or
minor has notified the prosecuting attorney and the Department of
Justice of the expungement request, and that the court has not
received an objection from the Department of Justice or the
prosecuting attorney.
   (d) Upon order from the court, the Department of Justice shall
destroy any specimen or sample collected from the person and any
searchable DNA database profile pertaining to the person, unless the
department determines that the person is subject to the provisions of
this chapter because of a past qualifying offense of record or is or
has otherwise become obligated to submit a blood specimen or buccal
swab sample as a result of a separate arrest, 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.
   The Department of Justice is not required to destroy analytical
data or other items obtained from a blood specimen or saliva, or
buccal swab sample, if evidence relating to another person subject to
the provisions of this chapter would thereby be destroyed or
otherwise compromised.
   Any identification, warrant, probable cause to arrest, or arrest
based upon a data bank or database match is not invalidated due to a
failure to expunge or a delay in expunging records.
   (e) Notwithstanding any other provision of law, the Department of
Justice DNA Laboratory is not required to expunge DNA profile or
forensic identification information or destroy or return specimens,
samples, or print impressions taken pursuant to this section if the
duty to register under Section 290 or 457.1 is terminated.
   (f) Notwithstanding any other provision of law, including Sections
17, 1203.4, and 1203.4a, a judge is not authorized to relieve a
person of the separate administrative duty to provide specimens,
samples, or print impressions required by this chapter if a person
has been found guilty or was adjudicated a ward of the court by a
trier of fact of a qualifying offense as defined in subdivision (a)
of Section 296, or was found not guilty by reason of insanity or
pleads no contest to a qualifying offense as defined in subdivision
(a) of Section 296.

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