11361.5
. (a) Records of any court of this state, any public or
private agency that provides services upon referral under Section
1000.2 of the Penal Code, or of any state agency pertaining to the
arrest or conviction of any person for a violation of subdivision
(b), (c), (d), or (e) of Section 11357 or subdivision (b) of Section
11360, shall not be kept beyond two years from the date of the
conviction, or from the date of the arrest if there was no
conviction, except with respect to a violation of subdivision (e) of
Section 11357 the records shall be retained until the offender
attains the age of 18 years at which time the records shall be
destroyed as provided in this section. Any court or agency having
custody of the records shall provide for the timely destruction of
the records in accordance with subdivision (c). The requirements of
this subdivision do not apply to records of any conviction occurring
prior to January 1, 1976, or records of any arrest not followed by a
conviction occurring prior to that date.
(b) This subdivision applies only to records of convictions and
arrests not followed by conviction occurring prior to January 1,
1976, for any of the following offenses:
(1) Any violation of Section 11357 or a statutory predecessor
thereof.
(2) Unlawful possession of a device, contrivance, instrument, or
paraphernalia used for unlawfully smoking marijuana, in violation of
Section 11364, as it existed prior to January 1, 1976, or a statutory
predecessor thereof.
(3) Unlawful visitation or presence in a room or place in which
marijuana is being unlawfully smoked or used, in violation of Section
11365, as it existed prior to January 1, 1976, or a statutory
predecessor thereof.
(4) Unlawfully using or being under the influence of marijuana, in
violation of Section 11550, as it existed prior to January 1, 1976,
or a statutory predecessor thereof.
Any person subject to an arrest or conviction for those offenses
may apply to the Department of Justice for destruction of records
pertaining to the arrest or conviction if two or more years have
elapsed since the date of the conviction, or since the date of the
arrest if not followed by a conviction. The application shall be
submitted upon a form supplied by the Department of Justice and shall
be accompanied by a fee, which shall be established by the
department in an amount which will defray the cost of administering
this subdivision and costs incurred by the state under subdivision
(c), but which shall not exceed thirty-seven dollars and fifty cents
($37.50). The application form may be made available at every local
police or sheriff's department and from the Department of Justice and
may require that information which the department determines is
necessary for purposes of identification.
The department may request, but not require, the applicant to
include a self-administered fingerprint upon the application. If the
department is unable to sufficiently identify the applicant for
purposes of this subdivision without the fingerprint or without
additional fingerprints, it shall so notify the applicant and shall
request the applicant to submit any fingerprints which may be
required to effect identification, including a complete set if
necessary, or, alternatively, to abandon the application and request
a refund of all or a portion of the fee submitted with the
application, as provided in this section. If the applicant fails or
refuses to submit fingerprints in accordance with the department's
request within a reasonable time which shall be established by the
department, or if the applicant requests a refund of the fee, the
department shall promptly mail a refund to the applicant at the
address specified in the application or at any other address which
may be specified by the applicant. However, if the department has
notified the applicant that election to abandon the application will
result in forfeiture of a specified amount which is a portion of the
fee, the department may retain a portion of the fee which the
department determines will defray the actual costs of processing the
application, provided the amount of the portion retained shall not
exceed ten dollars ($10).
Upon receipt of a sufficient application, the Department of
Justice shall destroy records of the department, if any, pertaining
to the arrest or conviction in the manner prescribed by subdivision
(c) and shall notify the Federal Bureau of Investigation, the law
enforcement agency which arrested the applicant, and, if the
applicant was convicted, the probation department which investigated
the applicant and the Department of Motor Vehicles, of the
application.
(c) Destruction of records of arrest or conviction pursuant to
subdivision (a) or (b) shall be accomplished by permanent
obliteration of all entries or notations upon the records pertaining
to the arrest or conviction, and the record shall be prepared again
so that it appears that the arrest or conviction never occurred.
However, where (1) the only entries upon the record pertain to the
arrest or conviction and (2) the record can be destroyed without
necessarily effecting the destruction of other records, then the
document constituting the record shall be physically destroyed.
(d) Notwithstanding subdivision (a) or (b), written transcriptions
of oral testimony in court proceedings and published judicial
appellate reports are not subject to this section. Additionally, no
records shall be destroyed pursuant to subdivision (a) if the
defendant or a codefendant has filed a civil action against the peace
officers or law enforcement jurisdiction which made the arrest or
instituted the prosecution and if the agency which is the custodian
of those records has received a certified copy of the complaint in
the civil action, until the civil action has finally been resolved.
Immediately following the final resolution of the civil action,
records subject to subdivision (a) shall be destroyed pursuant to
subdivision (c) if more than two years have elapsed from the date of
the conviction or arrest without conviction.