Post-Conviction Relief! Health and Safety Code section 11357(c) Controlled Substance Offense Record of Arrest and Conviction Destroyed Pursuant to Health and Safety Code section 11361.5!

Recently, in Orange County at the Fullerton Courthouse our office successfully litigated a Health and Safety Code § 11361.5 motion for our client’s Health and Safety Code section 11357(c) offense.

Health and Safety Code section 11361.5 states that “[r]ecords of any court of this state…or of any state agency pertaining to the arrest or conviction of any person for a violation 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.”

According to this Section, “[a] court or agency having custody of the records, including the statewide criminal databases, shall provide for the timely destruction of the records in accordance with subdivision (c), and those records shall also be purged from the statewide criminal databases.” (Health and Safety Code section 11361.5(a), emphasis added).

Our client had hired prior counsel to request for Health and Safety Code section 11361.5(a) relief, but the matter was sealed instead of destroyed, purged, and obliterated as the Statute requires. Thus, this offense continued to cause our client immigration problems because it appeared on his California Department of Justice History Record and was could be used adversely in federal immigration proceedings.

We filed a motion arguing that pursuant to the Statute, the records needed to be destroyed, purged and obliterated and requested a court order instructing the clerk to obliterate all entries pursuant to the procedure outlined in the Statute and to instruct the California Department of Justice to likewise obliterate its record.

At the hearing on this motion, the court granted the motion and signed the Order instructing the clerk and California Department of Justice to comply with the procedure in the Statute.

With this result, once completed, the record should be purged and no longer exist.

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