DNA Database Expungement
Law enforcement is allowed to collect DNA samples from certain individuals. In California, law enforcement can keep the DNA and DNA profile of anyone who pleads guilty to or is convicted of a felony or anyone required to register as a sex offender or an arson offender. The DNA sample is put into a DNA database maintained by the Department of Justice (DOJ). The database is called CAL-DNA. DNA samples and profiles may also be saved by the FBI.
If there is no legal basis for the DOJ to keep your DNA sample and your DNA profile, you can request that the sample be destroyed and your DNA profile be erased from the database.
You may be able to have your DNA expunged if:
· Your DNA was collected when you were arrested, but no charges were ever filed;
· Your DNA was collected when you were arrested for a felony, but the prosecutor filed only misdemeanor charges against you for that arrest;
· Your DNA was collected but then the case was dismissed, or you were found “not guilty,” or a Court of Appeal overturned your conviction and the case was dismissed;
· Your DNA was collected for a case for which you later successfully completed a diversion program or deferred entry of judgment program, such as PC1000;
· You were found factually innocent of the underlying offense pursuant to Penal Code §851.8, or Welfare and Institutions Code §781.5.
You are not eligible to have your DNA expunged if:
· You have any felony conviction or any felony juvenile adjudication. This is true even if your DNA was collected on a different case that was never prosecuted or later dismissed. The fact that you have a felony conviction or adjudication at any point means law enforcement can keep your DNA and DNA profile. Also, if you have a conviction in another state which would be a felony in California, the DOJ can keep your DNA and your DNA profile;
· You are required to register now or in the past as a sex offender or as an arson offender;
· You have a pending case which would allow law enforcement to get your DNA.
· You pled guilty to a felony, but the judge reduced the case to a misdemeanor at your sentencing hearing or at any time after your sentencing hearing. This includes cases which were reclassified as misdemeanors under Prop. 47 and 64. This includes cases which were reduced under Penal Code 17b.
· If your felony conviction was reduced to a misdemeanor because the judge used his/her discretion under Penal Code 17b to reduce it, you are not eligible to get your DNA expunged;
· If your felony conviction was dismissed/expunged under Penal Code §1203.4, that does not make you eligible to have your DNA expunged.
You can ask the DOJ directly to expunge your DNA. Fill out the Streamlined DNA Expungement Application Form. Collect any required certified copies of court documents as explained in the form. Mail the form and certified copies of court documents to the address on the form.
It generally will take 2-4 weeks to get a response from the DOJ.
If the DOJ denies your request to expunge your DNA you may ask a judge to do it. You need to fill out a Petition for Expungement of DNA Profiles and Samples. Follow the instructions on the Petition.
File the Petition in the court in the jurisdiction where the case happened.
Serve the Petition on the DOJ and the prosecutor.
The court will schedule a hearing where you will need to show the judge that you meet all the requirements to have your DNA expunged.
There is no fee or cost to request your DNA be expunged.
Not necessarily. The two page form requesting expungement from the DOJ is easy to fill out. Click here to get a copy of the form. Once you complete the form, you mail it, along with any other records required to show there is no legal basis to keep your DNA and DNA profile.
While you do not necessarily need a lawyer, you may want one. You may hire a lawyer or our office may be able to help you at no cost. Our experienced attorneys will review your entire record and determine what relief you are eligible for. Some applications are more complicated and the Department of Justice needs to see additional information to help make a decision.
If you would like our office to assist you, fill out and submit the Fresh Start Program Request for Assistance form. You may e-mail, fax, mail, or drop off your request form.
Office of the Public Defender Email: Fresh.Start@sdcounty.ca.gov
Fresh Start Program Fax: (619) 338-4811 (Attn: Fresh Start Program)
451 A Street, Suite 900
San Diego, CA 92101
Please call the Office of the Primary Public Defender at (619) 338-4700 and ask to speak to someone from the Fresh Start Program. The Office of the Primary Public Defender will assist you, even if you had an attorney from the Office of the Alternate Public Defender, a court appointed panel attorney, or you retained an attorney and now cannot afford to pay the attorney for assistance. You may also e-mail a question to Fresh.Start@sdcounty.ca.gov.