The Governor of California has a put forth a trailer bill in which one of the items to be amended are the laws governing the disposition of Marijuana Arrest and Convictions records. Specifically, section 11361.5 of the Health and Safety Code is targeted. Currently HS 11361.5 mandates that the courts destroy the arrest records or convictions as set forth under these conditions:
HS 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. This is how it currently works.
What would the statue look like if it gets amended?
What is being amended is that now the person that was either arrested or convicted of subdivision (b) must now apply for the destruction of his/her own records without notification or by being reminded by the court that they are eligible to do so. This is really a cost cutting issue (defraying the costs) involved in destroying these records
If you were arrested and not convicted or were convicted of a Marijuana charge under HS 11357 or subdivision (b) of HS 11360, you must wait the statutory two year period from the date of the arrest if there was no conviction, or if you were convicted, you may apply to the Department of Justice for the destruction of your records pertaining to the arrest or conviction, again only if two or more years have elapsed. You will have to pay a fee ($37.50 is currently proposed). In addition, the Department may request, but not require a self-administered fingerprint upon application, which in many instances will cost you another $60 to $80 for a live scan fingerprint submission.
Once all of the paperwork has been properly submitted, fingerprints and identity have been verified, the Department of Justice will destroy any records of your arrest or conviction. If for any reason the applicant fails or refuses to submit fingerprints to the department within a reasonable time, or if an applicant requests a refund of the fee, the department will mail a refund, and notify the applicant that election to abandon the application may result in forfeiture of a specified amount that is a portion of the fee (not to exceed $10) and refund the rest.
The implications are vast. First, most people that are arrested and never convicted do not exercise their right to have their arrest record destroyed either knowingly or having never been informed of this right. Second, there is no indication that the Department of Justice or the local courts are going be informing individuals whether formally or informally that they can have their arrest or conviction records destroyed after the statutory two year period.
The Johnson Criminal Law Group represents many clients that have been arrested for various marijuana related crimes. If you are currently facing a marijuana related charge, contact our office today .