You have the qualifications and want the job. Or you found the perfect apartment and are ready to sign the lease. But you're worried the company or landlord will run a background check and discover a criminal indiscretion in your past.
Criminal background checks are increasingly common in California - for everything from employment to apartment renting. In this article, our Criminal Defense Attorneys provide an introduction to criminal background checks and what can and cannot show up on them.
If you face a current criminal charge and wonder how it may impact a future background check, or if you want to clean up a conviction in your past, our California Criminal Defense Attorneys may be able to help.1
In this article, we cover:
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.
You might also be interested in reading our related articles on Rap Sheets in California, Criminal Convictions and Job Applications in California, Definition of Felony Crime in California, Definition of Misdemeanor Crime in California, Expungements of Criminal Records in California, Certificates of Rehabilitation in California, How to Apply for a Governor's Pardon in California, Sealing Juvenile Records in California, Convictions and Professional Licenses in California, Sex Crimes in California, Drug Crimes in California, California Health Safety 11357 hs Possession of Marijuana, California Vehicle Code 23152(b) vc drunk driving, and California Penal Code 243(d) pc domestic violence.
A criminal background check is when a company or other entity runs a search to find out whether you've ever been arrested or prosecuted for a crime. A criminal background check includes searches for past felony crimes in California and misdemeanor crimes in California.
There are different types of criminal background checks. When law enforcement looks into your criminal background, it goes to the California Department of Justice (DOJ) or the Federal Bureau of Investigation (FBI).
The DOJ and FBI keep highly confidential records known as rap sheets. Official rap sheets are only available to law enforcement and a select group of other people, as discussed in our related article Rap Sheets in California.
Unauthorized disclosure of someone's rap sheet is a misdemeanor crime in California.2
Even though most private employers and landlords can't access your rap sheet from DOJ or FBI, they can still get information about your criminal record. All they need to do is hire a record search company, known as an "investigative reporting agency," which is in the business of searching, compiling and selling information about people.3
To see how prevalent record search companies are, just type "criminal background check" into your Internet search engine and see what pops up. This article deals with such privately generated criminal background checks.
The general rule is that potential employers and landlords can access privately generated criminal records so long as they comply with federal and state consumer protection laws involving notification, privacy and accuracy requirements.4
In addition to consumer protection laws concerned with ensuring people have notice of background checks and that such checks are accurate and confidential, California law puts certain kinds of arrest and conviction information off-limits.
Generally speaking, the following kinds of information is off-limits to most people:
- Arrests that did not lead to conviction (unless the arrest is pending)
- Convictions more than seven years old
- Convictions for which you have received a pardon7
- Arrests leading to completion of a successful diversion program 8
- Expunged and sealed convictions9
- Arrests for certain minor offenses involving California Health Safety 11357 hs Possession of Marijuana, after a period of two years.10
Let's look at an example:
Example: Jonathan is 34 years old. He went through a difficult period in his life during his early twenties, when he was twice convicted of violating California Vehicle Code 23152(b) vc drunk driving.
In the aftermath of those convictions, Jonathan took steps to get his life back on track. He sought therapy for alcohol abuse and depression. He finished his education and got a job to pay the bills. He fulfilled all of his conditions of drunk driving probation and got the convictions expunged.
Everything was going well until the economic recession. Jonathan was laid off six moths ago and last month he was arrested for violating California Penal Code 243(d) pc domestic violence. He wonders how all this will impact him now that he's back in the job market.
Because Jonathan's convictions for violating California Vehicle Code 23152(b) vc drunk driving have been expunged and in any event are more than seven years old, they should not show up on a criminal background check sought by potential private employers. (However, they will remain on his official rap sheet in California with the notation that they have been "dismissed in the interest of justice.")
Jonathan's arrest for violating California Penal Code 243(d) pc domestic violence will show up on future criminal background checks unless it is dismissed, he is acquitted or he eventually expunges the conviction.
Jonathan decides to hire a California Criminal Defense Attorney to represent him on the California Penal Code 243(d) pc domestic violence charge and to go over how to handle questions relating to Criminal Convictions and Job Applications in California.
Please note that there are many exceptions to these general rules. For example, health care facilities can ask about arrests for certain sex crimes in California when it comes to jobs involving access to patients. Potential employers can ask about arrests for certain drug crimes in California if the job involves access to narcotics.11
Special rules also apply in regards to expunged convictions when it comes to applications for professional state licenses. Please see our related article on Convictions and Professional Licenses in California for more information on that topic.
Given the prevalence of criminal background checks in California, it is helpful to remember that there are many ways to clean up your criminal record, including:
- Expungements of Criminal Records in California
- Certificates of Rehabilitation in California
- Governor's Pardons in California
- Sealing Juvenile Records in California
Our California Criminal Defense Attorneys Can Help...
If you or loved one is in need of help with criminal record background checks and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
We also invite you to review our related articles on Rap Sheets in California, Criminal Convictions and Job Applications in California, Expungements of Criminal Records in California, Reducing Felony to Misdemeanor in California, Certificates of Rehabilitation in California, How to Apply for a Governor's Pardon in California, Sealing Juvenile Records in California, Definition of Felony Crime in California, Definition of Misdemeanor Crime in California, Convictions and Professional Licenses in California, Sex Crimes in California, Drug Crimes in California, California Health Safety 11357 hs Possession of Marijuana, California Vehicle Code 23152(b) vc drunk driving, and California Penal Code 243(d) pc domestic violence.
1 Our California Criminal Defense Attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2 California Penal Code Section 11142 provides: "Any person authorized by law to receive a record or information obtained from a record who knowingly furnishes the record or information to a person who is not authorized by law to receive the record or information is guilty of a misdemeanor."
3 California Civil Code Section 1786.2, provides in part: "The following terms as used in this title have the meaning expressed in this section....(c) The term "investigative consumer report" means a consumer report in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through any means. The term does not include a consumer report or other compilation of information that is limited to specific factual information relating to a consumer's credit record or manner of obtaining credit obtained directly from a creditor of the consumer or from a consumer reporting agency when that information was obtained directly from a potential or existing creditor of the consumer or from the consumer. Notwithstanding the foregoing, for transactions between investigative consumer reporting agencies and insurance institutions, agents, or insurance-support organizations subject to Article 6.6 (commencing with Section 791) of Chapter 1 of Part 2 of Division 1 of the Insurance Code, the term "investigative consumer report" shall have the meaning set forth in subdivision (n) of Section 791.02 of the Insurance Code. (d) The term "investigative consumer reporting agency" means any person who, for monetary fees or dues, engages in whole or in part in the practice of collecting, assembling, evaluating, compiling, reporting, transmitting, transferring, or communicating information concerning consumers for the purposes of furnishing investigative consumer reports to third parties, but does not include any governmental agency whose records are maintained primarily for traffic safety, law enforcement, or licensing purposes, or any licensed insurance agent, insurance broker, or solicitor, insurer, or life insurance agent."
4 California Civil Code Section 1786.12 provides: "An investigative consumer reporting agency shall only furnish an investigative consumer report under the following circumstances: (a) In response to the order of a court having jurisdiction to issue the order. (b) In compliance with a lawful subpoena issued by a court of competent jurisdiction. (c) In accordance with the written instructions of the consumer to whom it relates. (d) To a person that it has reason to believe: (1) Intends to use the information for employment purposes; or (2) Intends to use the information serving as a factor in determining a consumer's eligibility for insurance or the rate for any insurance; or (3) Intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider the applicant's financial responsibility or status; or (4) Intends to use the information in connection with an order of a court of competent jurisdiction to provide support where the imposition or enforcement of the order involves the consumer; or (5) Intends to use the information in connection with the hiring of a dwelling unit, as defined in subdivision (c) of Section 1940. (e) An investigative consumer reporting agency shall not prepare or furnish an investigative consumer report to a person described in subdivision (d) unless the agency has received the certification under paragraph (4) of subdivision (a) of Section 1786.16 from the person requesting the report. (f) An investigative consumer reporting agency shall not furnish an investigative consumer report to a person described in subdivision (d) if that report contains medical information about a consumer, unless the consumer consents to the furnishing of the report."
5 15 U.S.C. §§1681 provides: (a) Accuracy and fairness of credit reporting -- The Congress makes the following findings: (1) The banking system is dependent upon fair and accurate credit reporting. Inaccurate credit reports directly impair the efficiency of the banking system, and unfair credit reporting methods undermine the public confidence which is essential to the continued functioning of the banking system. (2) An elaborate mechanism has been developed for investigating and evaluating the credit worthiness,\1\ credit standing, credit capacity, character, and general reputation of consumers. [\1\ So in original. Probably should be ''creditworthiness,''.] (3) Consumer reporting agencies have assumed a vital role in assembling and evaluating consumer credit and other information on consumers. (4) There is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy. (b) Reasonable procedures -- It is the purpose of this subchapter to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information in accordance with the requirements of this subchapter." 6 California Civil Code Section 1786 provides: "The Legislature finds and declares as follows: (a) Investigative consumer reporting agencies have assumed a vital role in collecting, assembling, evaluating, compiling, reporting, transmitting, transferring, or communicating information on consumers for employment and insurance purposes, and for purposes relating to the hiring of dwelling units, subpoenas and court orders, licensure, and other lawful purposes. (b) There is a need to insure that investigative consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy. (c) The crime of identity theft in this new computer era has exploded to become the fastest growing white collar crime in America. (d) The unique nature of this crime means it can often go undetected for years without the victim being aware his identity has been misused. (e) Because notice of identity theft is critical before the victim can take steps to stop and prosecute this crime, consumers are best protected if they are automatically given copies of any investigative consumer reports made on them. (f) It is the purpose of this title to require that investigative consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for employment, insurance information, and information relating to the hiring of dwelling units in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of the information in accordance with the requirements of this title. (g) The Legislature hereby intends to regulate investigative consumer reporting agencies pursuant to this title in a manner which will best protect the interests of the people of the State of California."
7 California Civil Code Section 1786.18 provides: "(a) Except as authorized under subdivision (b), an investigative consumer reporting agency may not make or furnish any investigative consumer report containing any of the following items of information: (1) Bankruptcies that, from the date of the order for relief, antedate the report by more than 10 years. (2) Suits that, from the date of filing, and satisfied judgments that, from the date of entry, antedate the report by more than seven years. (3) Unsatisfied judgments that, from the date of entry, antedate the report by more than seven years. (4) Unlawful detainer actions where the defendant was the prevailing party or where the action is resolved by settlement agreement. (5) Paid tax liens that, from the date of payment, antedate the report by more than seven years. (6) Accounts placed for collection or charged to profit and loss that antedate the report by more than seven years. (7) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that records of arrest, indictment, information, or misdemeanor complaints may be reported pending pronouncement of judgment on the particular subject matter of those records. (8) Any other adverse information that antedates the report by more than seven years. (b) The provisions of subdivision (a) are not applicable in either of the following circumstances: (1) If the investigative consumer report is to be used in the underwriting of life insurance involving, or that may reasonably be expected to involve, an amount of two hundred fifty thousand dollars ($250,000) or more. (2) If the investigative consumer report is to be used by an employer who is explicitly required by a governmental regulatory agency to check for records that are prohibited by subdivision (a) when the employer is reviewing a consumer's qualification for employment. (c) Except as otherwise provided in Section 1786.28, an investigative consumer reporting agency shall not furnish an investigative consumer report that includes information that is a matter of public record and that relates to an arrest, indictment, conviction, civil judicial action, tax lien, or outstanding judgment, unless the agency has verified the accuracy of the information during the 30-day period ending on the date on which the report is furnished. (d) An investigative consumer reporting agency shall not prepare or furnish an investigative consumer report on a consumer that contains information that is adverse to the interest of the consumer and that is obtained through a personal interview with a neighbor, friend, or associate of the consumer or with another person with whom the consumer is acquainted or who has knowledge of the item of information, unless either (1) the investigative consumer reporting agency has followed reasonable procedures to obtain confirmation of the information, from an additional source that has independent and direct knowledge of the information, or (2) the person interviewed is the best possible source of the information."
8 California Labor Code Section 432.7 provides: "(a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial. (b) Nothing in this section shall prohibit the disclosure of the information authorized for release under Sections 13203 and 13300 of the Penal Code, to a government agency employing a peace officer. However, the employer shall not determine any condition of employment other than paid administrative leave based solely on an arrest report. The information contained in an arrest report may be used as the starting point for an independent, internal investigation of a peace officer in accordance with Chapter 9.7 (commencing with Section 3300) of Division 4 of Title 1 of the Government Code. (c) In any case where a person violates this section, or Article 6 (commencing with Section 11140) of Chapter 1 of Title 1 of Part 4 of the Penal Code, the applicant may bring an action to recover from that person actual damages or two hundred dollars ($200), whichever is greater, plus costs, and reasonable attorney's fees. An intentional violation of this section shall entitle the applicant to treble actual damages, or five hundred dollars ($500), whichever is greater, plus costs, and reasonable attorney's fees. An intentional violation of this section is a misdemeanor punishable by a fine not to exceed five hundred dollars ($500). (d) The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law. (e) Persons seeking employment or persons already employed as peace officers or persons seeking employment for positions in the Department of Justice or other criminal justice agencies as defined in Section 13101 of the Penal Code are not covered by this section. (f) Nothing in this section shall prohibit an employer at a health facility, as defined in Section 1250 of the Health and Safety Code, from asking an applicant for employment either of the following: (1) With regard to an applicant for a position with regular access to patients, to disclose an arrest under any section specified in Section 290 of the Penal Code. (2) With regard to an applicant for a position with access to drugs and medication, to disclose an arrest under any section specified in Section 11590 of the Health and Safety Code. (g) (1) No peace officer or employee of a law enforcement agency with access to criminal offender record information maintained by a local law enforcement criminal justice agency shall knowingly disclose, with intent to affect a person's employment, any information contained therein pertaining to an arrest or detention or proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, to any person not authorized by law to receive that information. (2) No other person authorized by law to receive criminal offender record information maintained by a local law enforcement criminal justice agency shall knowingly disclose any information received therefrom pertaining to an arrest or detention or proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, to any person not authorized by law to receive that information. (3) No person, except those specifically referred to in Section 1070 of the Evidence Code, who knowing he or she is not authorized by law to receive or possess criminal justice records information maintained by a local law enforcement criminal justice agency, pertaining to an arrest or other proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, shall receive or possess that information. (h) "A person authorized by law to receive that information," for purposes of this section, means any person or public agency authorized by a court, statute, or decisional law to receive information contained in criminal offender records maintained by a local law enforcement criminal justice agency, and includes, but is not limited to, those persons set forth in Section 11105 of the Penal Code, and any person employed by a law enforcement criminal justice agency who is required by that employment to receive, analyze, or process criminal offender record information. (i) Nothing in this section shall require the Department of Justice to remove entries relating to an arrest or detention not resulting in conviction from summary criminal history records forwarded to an employer pursuant to law. (j) As used in this section, "pretrial or posttrial diversion program" means any program under Chapter 2.5 (commencing with Section 1000) or Chapter 2.7 (commencing with Section 1001) of Title 6 of Part 2 of the Penal Code, Section 13201 or 13352.5 of the Vehicle Code, or any other program expressly authorized and described by statute as a diversion program. (k) (1) Subdivision (a) shall not apply to any city, city and county, county, or district, or any officer or official thereof, in screening a prospective concessionaire, or the affiliates and associates of a prospective concessionaire for purposes of consenting to, or approving of, the prospective concessionaire's application for, or acquisition of, any beneficial interest in a concession, lease, or other property interest. (2) For purposes of this subdivision the following terms have the following meanings: (A) "Screening" means a written request for criminal history information made to a local law enforcement agency. (B) "Prospective concessionaire" means any individual, general or limited partnership, corporation, trust, association, or other entity that is applying for, or seeking to obtain, a public agency's consent to, or approval of, the acquisition by that individual or entity of any beneficial ownership interest in any public agency'sconcession, lease, or other property right whether directly or indirectly held. However, "prospective concessionaire" does not include any of the following: (i) A lender acquiring an interest solely as security for a bona fide loan made in the ordinary course of the lender's business and not made for the purpose of acquisition. (ii) A lender upon foreclosure or assignment in lieu of foreclosure of the lender's security. (C) "Affiliate" means any individual or entity that controls, or is controlled by, the prospective concessionaire, or who is under common control with the prospective concessionaire. (D) "Associate" means any individual or entity that shares a common business purpose with the prospective concessionaire with respect to the beneficial ownership interest that is subject to the consent or approval of the city, county, city and county, or district. (E) "Control" means the possession, direct or indirect, of the power to direct, or cause the direction of, the management or policies of the controlled individual or entity. (l) (1) Nothing in subdivision (a) shall prohibit a public agency, or any officer or official thereof, from denying consent to, or approval of, a prospective concessionaire's application for, or acquisition of, any beneficial interest in a concession, lease, or other property interest based on the criminal history information of the prospective concessionaire or the affiliates or associates of the prospective concessionaire that show any criminal conviction for offenses involving moral turpitude. Criminal history information for purposes of this subdivision includes any criminal history information obtained pursuant to Section 11105 or 13300 of the Penal Code. (2) In considering criminal history information, a public agency shall consider the crime for which the prospective concessionaire or the affiliates or associates of the prospective concessionaire was convicted only if that crime relates to the specific business that is proposed to be conducted by the prospective concessionaire. (3) Any prospective concessionaire whose application for consent or approval to acquire a beneficial interest in a concession, lease, or other property interest is denied based on criminal history information shall be provided a written statement of the reason for the denial. (4) (A) If the prospective concessionaire submits a written request to the public agency within 10 days of the date of the notice of denial, the public agency shall review its decision with regard to any corrected record or other evidence presented by the prospective concessionaire as to the accuracy or incompleteness of the criminal history information utilized by the public agency in making its original decision. (B) The prospective concessionaire shall submit the copy or the corrected record of any other evidence to the public agency within 90 days of a request for review. The public agency shall render its decision within 20 days of the submission of evidence by the prospective concessionaire."
9 California Code of Regulations, Title 2, Section 7287.4 provides: "(a) Selection and Testing. Any policy or practice of an employer or other covered entity which has an adverse impact on employment opportunities of individuals on a basis enumerated in the Act is unlawful unless the policy or practice is job-related, as defined in Section 7287.4(e). The Commission herein adopts the Uniform Guidelines on Employee Selection Procedures promulgated by various federal agencies, including the EEOC and Department of Labor. [29 CFR 1607 (1978)]....(d) Specific Practices. (1) Criminal Records. Except as otherwise provided by law (e.g., 12 U.S.C. 1829; Labor Code Section 432.7), it is unlawful for an employer or other covered entity to inquire or seek information regarding any applicant concerning: (A) Any arrest or detention which did not result in conviction; (B) Any conviction for which the record has been judicially ordered sealed, expunged, or statutorily eradicated (e.g., juvenile offense records sealed pursuant to Welfare and Institutions Code Section 389 and Penal Code Sections 851.7 or 1203.45); any misdemeanor conviction for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed pursuant to Penal Code Section 1203.4; or (C) Any arrest for which a pretrial diversion program has been successfully completed pursuant to Penal Code Sections 1000.5 and 1001.5."
10 California Health & Safety Code Section 11361.5 provides: "(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. (b) This subdivision applies only to records of convictions and arrests not followed by conviction occurring prior to January 1, 1976, for any of the following offenses: (1) Any violation of Section 11357 or a statutory predecessor thereof. (2) Unlawful possession of a device, contrivance, instrument, or paraphernalia used for unlawfully smoking marijuana, in violation of Section 11364, as it existed prior to January 1, 1976, or a statutory predecessor thereof. (3) Unlawful visitation or presence in a room or place in which marijuana is being unlawfully smoked or used, in violation of Section 11365, as it existed prior to January 1, 1976, or a statutory predecessor thereof. (4) Unlawfully using or being under the influence of marijuana, in violation of Section 11550, as it existed prior to January 1, 1976, or a statutory predecessor thereof. Any person subject to an arrest or conviction for those offenses may apply to the Department of Justice for destruction of records pertaining to the arrest or conviction if two or more years have elapsed since the date of the conviction, or since the date of the arrest if not followed by a conviction. The application shall be submitted upon a form supplied by the Department of Justice and shall be accompanied by a fee, which shall be established by the department in an amount which will defray the cost of administering this subdivision and costs incurred by the state under subdivision (c), but which shall not exceed thirty-seven dollars and fifty cents ($37.50). The application form may be made available at every local police or sheriff's department and from the Department of Justice and may require that information which the department determines is necessary for purposes of identification. The department may request, but not require, the applicant to include a self-administered fingerprint upon the application. If the department is unable to sufficiently identify the applicant for purposes of this subdivision without the fingerprint or without additional fingerprints, it shall so notify the applicant and shall request the applicant to submit any fingerprints which may be required to effect identification, including a complete set if necessary, or, alternatively, to abandon the application and request a refund of all or a portion of the fee submitted with the application, as provided in this section. If the applicant fails or refuses to submit fingerprints in accordance with the department's request within a reasonable time which shall be established by the department, or if the applicant requests a refund of the fee, the department shall promptly mail a refund to the applicant at the address specified in the application or at any other address which may be specified by the applicant. However, if the department has notified the applicant that election to abandon the application will result in forfeiture of a specified amount which is a portion of the fee, the department may retain a portion of the fee which the department determines will defray the actual costs of processing the application, provided the amount of the portion retained shall not exceed ten dollars ($10). Upon receipt of a sufficient application, the Department of Justice shall destroy records of the department, if any, pertaining to the arrest or conviction in the manner prescribed by subdivision (c) and shall notify the Federal Bureau of Investigation, the law enforcement agency which arrested the applicant, and, if the applicant was convicted, the probation department which investigated the applicant and the Department of Motor Vehicles, of the application. (c) Destruction of records of arrest or conviction pursuant to subdivision (a) or (b) shall be accomplished by permanent obliteration of all entries or notations upon the records pertaining to the arrest or conviction, and the record shall be prepared again so that it appears that the arrest or conviction never occurred. However, where (1) the only entries upon the record pertain to the arrest or conviction and (2) the record can be destroyed without necessarily effecting the destruction of other records, then the document constituting the record shall be physically destroyed. (d) Notwithstanding subdivision (a) or (b), written transcriptions of oral testimony in court proceedings and published judicial appellate reports are not subject to this section. Additionally, no records shall be destroyed pursuant to subdivision (a) if the defendant or a codefendant has filed a civil action against the peace officers or law enforcement jurisdiction which made the arrest or instituted the prosecution and if the agency which is the custodian of those records has received a certified copy of the complaint in the civil action, until the civil action has finally been resolved. Immediately following the final resolution of the civil action, records subject to subdivision (a) shall be destroyed pursuant to subdivision (c) if more than two years have elapsed from the date of the conviction or arrest without conviction."
11 California Labor Code Section 432.7, supra.