Criminal Defense of Immigrants


§ 3.41 C. Record Destruction Does Not Eliminate Convictions

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The state criminal history agencies systematically destroy certain criminal records after a given length of time.  For example, the California Department of Justice destroys records for certain minor marijuana offenses after two years.  It destroys records of misdemeanor arrests without convictions after five years.  It destroys misdemeanor convictions, felony arrests, and most juvenile delinquency cases after seven years.  In California, court reporters’ notes must now be kept for at least 10 years, and forever in capital cases.[127]


                If you request a record, and are informed it does not exist, this may simply mean that the Department of Justice has destroyed its record of that conviction after the appropriate number of years.  The underlying conviction, however, still exists legally, and it may still be necessary to pursue appropriate post‑conviction relief to expunge or vacate the conviction if the immigration authorities are aware of it, or if the client is required to notify them of the conviction.  The conviction may still trigger adverse immigration consequences even though the Department of Justice has destroyed its record.  If records have been destroyed, the government may have difficulty proving that a conviction exists.  The same is true if the rendering court has destroyed its files after a certain number of years.

[127] California Gov. Code § § 68152, 69955; see 1994 Cal. Stats., chs. 390, 870.