Health and Safety Code section 11361.5 Post-Conviction Motion to Obliterate and Destroy the Arrest and Conviction Record for Health and Safety Code section 11357 and 11360(b) Offenses!

A person that has been convicted of a Health and Safety Code section 11357, “Possession of Marijuana,” or Health and Safety Code section 11360(b), “Furnishing Marijuana” is eligible to seek complete destruction and obliteration of their arrest and conviction records.

According to Health and Safety Code section 11361.5, “[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).

Subdivision (c) of this Section calls for the “permanent obliteration of all entries or notations upon the records pertaining to the arrest or conviction.” The records shall then be prepared again so that it appears that the arrest or conviction never occurred. This means that the court, the arresting agency, and the California Department of Justice should completely destroy any record or reference to the arrest and conviction.

Despite the fact that Health and Safety Code section 11361.5 appears to call for the automatic destruction of these records, it is our experience that courts, law enforcement agencies, and the California Department of Justice rarely act to destroy and obliterate the records for these offenses on their own initiative. Thus, our office is very experienced in requesting this form of relief and following-up with the applicable agencies to ensure that they properly comply with the mandates of the Statute.

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