California allows for the collection and retention of DNA samples for felonies and some misdemeanor crimes but in recent years some felony charges have been made misdemeanors and a person can request an expungement of their DNA records in some cases. For example, in Torrance a lawyer can seek to have a DNA sample removed from the California database by filing a petition.
Penal Code sections 296 and 296.1 authorize the collection of a DNA sample under a variety of circumstances, including when a person incurs a felony juvenile adjudication. However, these statutes do not authorize the collection of a DNA sample based solely on the commission of a misdemeanor. After reviewing the plain language of section 1170.18 and applying rules of statutory construction, the Court of Appeal has concluded that “the voters did not intend that a reclassified misdemeanor offense be deemed a felony for purposes of retention of DNA samples.” The fact that reclassification of a felony to a misdemeanor is not among the grounds listed in Penal Code section 299 for DNA expungement does not change this conclusion.
In some cases the superior court can be directed to reconsider a DNA expungement request by a criminal defendant.