DNA Forms _CR 185 And CR 186_ 4 3 08 186 Spr08 34
User Manual: CR-186
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SPR08-34 Title Summary Source Criminal and Juvenile Law: DNA Expungement Forms (approve forms CR-185/JV-796 and CR-186/JV-798) Petition for Expungement of DNA Profiles and Samples (form CR185/JV-796) and Order for Expungement of DNA Profiles and Samples (form CR-186/JV-798) are proposed for optional use by petitioners and courts. The purpose of these forms is to clarify and facilitate the statutory procedure to expunge DNA database profiles and destroy DNA samples and specimens. Criminal Law Advisory Committee Justice Steven Z. Perren, Chair Family and Juvenile Law Advisory Committee Hon. Jerilyn L. Borack and Hon. Susan D. Huguenor, Cochairs Staff Arturo Castro, Attorney Office of the General Counsel Audrey Fancy, Supervising Attorney Center for Families, Children & the Courts Discussion Penal Code section 296 requires certain criminal offenders to provide DNA samples upon arrest or conviction for specified offenses. Beginning January 1, 2009, the classification of persons required to submit DNA samples will expand to include any adult person arrested or charged with any felony arrest. (Pen. Code, § 296(a)(2)(C).) In addition to adult offenders, Penal Code section 296 requires certain juveniles to submit DNA samples, including, for example, juveniles adjudged wards of the court for commission of a felony offense (Pen. Code, §296(a)(1)) and juveniles required to register as sex offenders. (Pen. Code, § 296(a)(3).) Penal Code section 299 authorizes eligible persons, including juveniles, to request a court order requiring the California Department of Justice to destroy previously obtained DNA specimens and samples and to expunge searchable DNA database profiles. Currently, there is no Judicial Council form for use by petitioners seeking expungement, nor a Judicial Council order form for use by the courts. The proposed forms would provide specific instructions and other relevant information needed by both petitioners and courts. Petitions for expungement are often filed by petitioners who are not 2 represented by counsel. In addition, because the change in the law effective January 1, 2009, will require a larger number of persons to submit DNA samples, the number of expungement petitions is expected to rise considerably. Because the proposed forms impact both adult and delinquency proceedings, this proposal is co-authored by the Criminal Law Advisory Committee and Family and Juvenile Law Advisory Committee (Committees). The proposed forms are dual numbered for use in both criminal and juvenile proceedings. The Committees seek public comment on the proposed forms, generally, and, in particular, on whether the Petition for Expungement of DNA Profiles and Samples (form CR-185) should include a section for the date, time, and place of the noticed hearing to be entered by court staff when the petition is filed. Attachments 2 CR-185/JV-796 FOR COURT USE ONLY ATTORNEY OR PETITIONER WITHOUT ATTORNEY (Name, State Bar number, and address): FAX NO. (Optional): TELEPHONE NO.: DRAFT E-MAIL ADDRESS (Optional): ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA, COUNTY OF STREET ADDRESS: MAILING ADDRESS: CITY AND ZIP CODE: BRANCH NAME: CASE NUMBER (IF APPLICABLE): PETITION FOR EXPUNGEMENT OF DNA PROFILES AND SAMPLES (Pen. Code, § 299) PETITIONER'S INFORMATION NAME: CII: DRIVER'S LICENSE #: SSN # (Last four digits only): DATE OF BIRTH: PETITION 1. Petitioner has been included in the California Department of Justice's DNA and Forensic Identification Database, Data Bank Program, or both, as required by Penal Code section 296. 2. No past or present offense or pending charge qualifies petitioner for inclusion in the California Department of Justice's DNA and Forensic Identification Database or Data Bank Program, nor is there any legal basis for the continued retention of petitioner's specimen, sample, or searchable profile. 3. Petitioner requests that the California Department of Justice destroy petitioner's DNA sample or specimen, or both, and expunge petitioner's searchable DNA database profile as provided for in Penal Code section 299 on the following grounds (check one): a. No qualifying charges were filed within the applicable period allowed by law following petitioner's arrest. b. The qualifying charges were dismissed before adjudication. c. The qualifying conviction has been reversed and the case dismissed. d. Petitioner has been found factually innocent of the qualifying offense under Penal Code section 851.8 or Welfare and Institutions Code section 781.5. e. Petitioner was acquitted or found not guilty of the qualifying offense. f. Petitioner's previously sustained delinquency petition alleging an offense that would be a felony, if committed by an adult, has been reversed and dismissed. 4. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. at Executed on: , California. (DATE) (CITY) (PETITIONER'S SIGNATURE) (PETITIONER'S ADDRESS) (CITY) (STATE) (ZIP CODE) ADDITIONAL INSTRUCTIONS: Penal Code section 299(c)(1) requires petitioner to send a copy of this petition to the DNA Laboratory of the California Department of Justice, and the trial court and prosecuting attorney of the county where petitioner was arrested, convicted, adjudicated, or had the disposition rendered, with proof of service on all parties. Form Approved for Optional Use Judicial Council of California CR-185/JV-796 [New January 1, 2009] PETITION FOR EXPUNGEMENT OF DNA PROFILES AND SAMPLES (Pen. Code, § 299) 3 Page 1 of 1 Penal Code, § 299 www.courtinfo.ca.gov CR-186/JV-798 FOR COURT USE ONLY ATTORNEY OR PETITIONER WITHOUT ATTORNEY (Name, State Bar number, and address): FAX NO. (Optional): TELEPHONE NO.: DRAFT E-MAIL ADDRESS (Optional): ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA, COUNTY OF STREET ADDRESS: MAILING ADDRESS: CITY AND ZIP CODE: BRANCH NAME: CASE NUMBER (IF APPLICABLE): ORDER FOR EXPUNGEMENT OF DNA PROFILES AND SAMPLES (Pen. Code, § 299) PETITIONER'S INFORMATION NAME: CII: DRIVER'S LICENSE #: SSN # (Last four digits only): DATE OF BIRTH: ORDER The court denies the petition. The court grants the petition and orders that petitioner's DNA specimen and sample be destroyed and petitioner's searchable database profile be expunged from the California Department of Justice's DNA and Forensic Identification Database and Data Bank Program as required by Penal Code section 299. Additionally, the court finds (a) that petitioner has made the necessary showing at a noticed hearing, (b) no retrial or appeal of the qualifying case (if any) is pending, (c) at least 180 days have passed since petitioner notified the prosecuting attorney and the Department of Justice of petitioner's request for expungement, and (d) the court has not received an objection from the Department of Justice or the prosecuting attorney. (Pen. Code, § 299(c)(2).) Date: (JUDICIAL OFFICER) ADDITIONAL INSTRUCTIONS: As required by Penal Code section 299(c)(2), the California Department of Justice must destroy petitioner's specimen and sample and expunge petitioner's searchable DNA database on receipt of this court order, which must also include the written petition for expungement, proof of written notice of the petition to the California Department of Justice and the prosecuting attorney, and one of the following: a. A certified copy of the court order reversing and dismissing the conviction or case; or b. A letter from the prosecuting attorney certifying that: (1) No accusatory pleading has been filed; (2) The qualifying charges have been dismissed before adjudication; (3) Petitioner has been found factually innocent; (4) Petitioner has been found not guilty; (5) Petitioner has been acquitted of the underlying offense; (6) The qualifying conviction has been reversed and the case dismissed; or (7) The qualifying sustained delinquency petition has been reversed and the case dismissed. Page 1 of 1 Form Approved for Optional Use Judicial Council of California CR-186/JV-798 [New January 1, 2009] ORDER FOR EXPUNGEMENT OF DNA PROFILES AND SAMPLES (Pen. Code, § 299) 4 Penal Code, § 299 www.courtinfo.ca.gov Item SPR08-34 Title: Response Form Criminal and Juvenile Law: New DNA Expungement Forms (approve forms CR-185/JV-796 and CR-186/JV-798) F Agree with proposed changes F Agree with proposed changes if modified F Do not agree with proposed changes Comments: Name: Title: Organization: F Commenting on behalf of an organization Address: City, State, Zip: To Submit Comments Comments may be written on this form, prepared in a letter format, or submitted online. If you are not commenting directly on this form, please include the information requested above and the proposal number for identification purposes. Please submit your comments online or email, mail, or fax comments. Internet: www.courtinfo.ca.gov/invitationstocomment Email: Mail: invitations@jud.ca.gov Ms. Camilla Kieliger Judicial Council, 455 Golden Gate Avenue San Francisco, CA 94102 (415) 865-7664, Attn: Camilla Kieliger Fax: DEADLINE FOR COMMENT: 5:00 p.m., Friday, June 20, 2008 Circulation for comment does not imply endorsement by the Judicial Council or the Rules and Projects Committee. All comments will become part of the public record of the council’s action.
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