Getting a DUI conviction can be a traumatic, embarrassing situation. The sentence also comes with a social stigma. Unluckily, the embarrassment goes on for a long time because a DUI conviction stays on your criminal record permanently. DUI is not like other crimes. Anyone can get a DUI. The majority of those arrested make a mistake of driving while under the influence. Everyone deserves a second chance. Because of that, those people who have made a mistake of drunk driving and got convicted of a DUI can mitigate the error by removing or erasing the DUI conviction in their criminal history. With the criminal record expunged, you will not have problems with licensing, getting meaningful employment, and quality of life. To clear the record, you must file a petition with the court. At San Jose DUI Attorney Law Firm, we help clients file a petition for DUI expungement. Here we have discussed persons who are eligible for DUI expungement, how the expunction works, its benefits, and limitations.
DUI Expungement in California
California VC 23152 (a) & (b) are commonly known as DUI statutes. According to these statutes, it is a crime to operate a motor vehicle when intoxicated by alcohol or drugs to the extent you cannot drive cautiously the way a sober person could have driven. If you have been convicted of a DUI in California, the penalties in this state are harsh. You might be forced to serve jail or prison sentence, complete a DUI School, and get the license suspended by the DMV.
Aside from these penalties, a DUI conviction for adults comes with a social stigma. With your record showing a DUI conviction, your ability to find a job is hindered, especially if you were sentenced for a felony DUI. You can avoid these adverse effects of a DUI conviction by getting it expunged.
Remember, when you are convicted of a DUI, the conviction goes to your driving record and criminal record. A sentence will stay in your driving record for ten years, after which it is dropped off. But the conviction that goes to your criminal record remains there forever. The permanent record can, however, be removed through expungement. When the court grants an expunction, the defendant is allowed to withdraw his or her guilty or no contest pleas. The case will then be dismissed. The record is erased and is as though you never committed the crime. There are circumstances, however, where the expungement will have to be revisited.
DUI Expungement Eligibility
Certain conditions and requirements must be met if you are to apply for an expungement. Although expunction is available for persons convicted of a misdemeanor or felony in California, not all DUI convictions are eligible for expungement with the mandatory condition being you should not have served a state prison sentence. Any person who has been charged with felony DUI is likely to face a requisite state prison term if:
- They caused an accident that resulted in serious bodily harm or fatalities
- A fourth conviction within one hundred and twenty months is filed as a felony with no more than one hundred and eighty days jail sentence
Apart from these persons, you are eligible for DUI expungement if:
- You are not currently facing another criminal charge in California. If you are facing other criminal charges, you must wait for the case to be concluded before filing for expunction
- You have completed DUI probation. The probation period is in most cases is three years, but you can file for expungement even without completing the probationary terms. This can only be done when you have a very urgent issue, and you should wait for at least half of the probation period before filing for early termination of probation
- You have completed all the conditions of your sentence
- You didn’t serve any state prison sentence
- You served a state prison sentence but would have served jail sentences under Prop 47 realignment
- You were not placed on probation. You must wait until one year is over from the date of conviction to file a petition
Even if you meet the above conditions, it’s not automatic that you will be granted the petition by the court. Some of the factors that might influence the court decision include:
- The time that has passed since your conviction
- Your ethical conduct from the date of conviction
- Voluntary efforts to rehabilitate yourself by completing drug or alcohol school
- Proof that the sentence is hindering your ability to get a job
DUI Expungement Process
When it comes to the process of expungement, retaining the services of a DUI criminal defense attorney is essential. The paperwork and the petition filing process requires persons who are knowledgeable in matters expungement to avoid mistakes that can prevent you from being eliminated from your records. If you try undertaking the process on your own, you might end up spending more money and time hiring an attorney to correct the mistakes that you made initially.
To begin the process, you need a case number and a minute order from the court where you were convicted. After getting this information, your attorney should then follow the following steps:
- File a Petition for Dismissal
Your attorney should file a motion for dismissal once you have completed DUI probation. DUI probation comes with terms like paying a fine and completing a DUI School. Also, another condition of probation is not to drive with any alcohol in your system. The probation period often lasts for thirty-six months. To file the petition for dismissal, download the form online and fill it out. If you had been convicted of a felony DUI, you must submit another request to reduce the charges to a misdemeanor before you are granted expunction.
- Early Termination of your Probation
If you haven’t completed probation yet, you can request for early termination. Note that it will be a waste of time to file a motion for early dismissal before you have served at least twelve to sixteen months of your probation period. The application for the proposal is made under PC 1203.3. Once your attorney has filed a motion, he or she gives the prosecution attorney 48 hours before the hearing. If the motion is granted, you can begin the expungement process. The motion is likely to be granted if:
- You have successfully paid the fines, restitution fees, DUI classes and completed other terms of probation
- Some circumstances justify early termination, like the need to secure employment, a promotion at work, or travel for work
Judges find it difficult to grant an early termination of probation petition in cases involving drunk drivers. In most cases, they will allow the request after you have completed probation.
- Submit an Attachment to the Petition
In this attachment, you should state how you have become a law-abiding citizen in the community and that you have not faced any subsequent criminal charges during the time of probation. Also, you must state that DUI expungement is going to help you get a job that will help further your career and improve the lives of your family and that of the community in general.
- File a Petition for Dismissal
You can file for expungement while waiting to serve the complete term of your probation.
- Serve the Prosecution and Probation Department
In this step, your attorney should serve both the prosecution and the probation department with all the documents regarding your expungement. You should do this promptly to allow these parties to have enough time to go through the papers and get an opportunity to contest the expungement if they wish.
- Order of Dismissal
If your motion is granted, you are issued with an order of dismissal. Before the judge dismisses the case you either:
- Withdraw your plea of guilt and re-enter a not guilty plea
- Get the judge verdict thrown out if a jury trial convicted you
Time Limit for DUI Expunction
The time an expungement takes depends on the state. In California, the process takes between six to twelve weeks after the papers have been filed with the court. It’s therefore advisable that you commence the process early so that you can get a second chance to live.
Benefits of California DUI Expungement
Other than giving you a mental reprieve, there are several other benefits you can get from a DUI expungement. These benefits include:
The majority of job or employment applications require criminal conviction information before giving you a job. Others conduct background checks on the criminal history of the applicants. An expungement will benefit you greatly because it helps you secure a job, notwithstanding your criminal past.
Nowadays, employers are very keen when it comes to hiring. Before they bring you to their organization, they must conduct some background checks on the applicants. The background checks aim to reveal the arrests, convictions, and probation status of the applicants. Luckily, if you have been expunged DUI records under PC 1203.4, if a potential employer asks you if you have been convicted for a DUI charge, you can confidently say no. Also, the law protects persons who have their DUI convictions expunged by preventing employers from locking them out if they learn the applicant had a DUI conviction expunged during background checks.
Ban-the-box laws in California forbids employers from asking about convictions on job applications. You don’t have to disclose the expungement, and even if the employer finds out, the DUI expungement cannot be legally used as a basis for deciding whether to hire or promote you.
If you are looking for a California professional license, an expungement will significantly benefit you. When state agencies are issuing professional permits to contractors and other professionals, they ask you if you have been previously convicted of a DUI charge. If you had been convicted but the conviction expunged, they can still see it in the record. In spite of this, they will grant you the state license. This is contrary to what happens if the conviction was not expunged. If your DUI conviction record has been expunged, they will consider if you completed the probation and expungement processes successfully to decide whether to issue the license or not.
As said earlier, a DUI conviction can be embarrassing and traumatic. Most of the sentences result from mistakes that you might live to regret forever. But once you are granted a dismissal, you get a sense of relief from these past mistakes. Although you cannot change what happened, an expungement gives you a redemption, which in turn brings personal satisfaction.
Witness Credibility in Court
Another critical benefit of having a DUI expunged is that you become a credible court witness. People who have a prior DUI or a felony conviction are often impeached as court witnesses because the opposing side often pokes holes in the credibility of the witness. If you had been convicted of a felony DUI but later had it expunged, even if you are presented before a court as a witness, the opposing side is prohibited from using the conviction to question your credibility as a witness.
Other benefits of a DUI expungement include:
- You qualify for better housing assistance
- Better student loans eligibility
- Increase your earning capacity due to the availability of many employment opportunities
- You can tell friends and family you have never been convicted of a DUI
Limitations of a DUI Expungement
Expungement has a lot of benefits, some of which have been explained above. While there are many advantages to the procedure, it still has its limitations. Some of these limitations include:
- You Criminal Record Stays on File
What happens in an expunction is that the case is dismissed, but the original conviction stays. An expungement updates your criminal file to show that:
- Your guilty plea has been removed, and a no guilty plea re-entered or the guilty verdict by a jury trial has been overturned
- Probation is successfully completed
- The case has been dismissed
Your files will still be held by the court and are available to the public. Anybody who wants to run some background checks on you can again see that you had been previously convicted of a DUI or other criminal charges but was expunged.
- You Must Disclose your DUI Conviction when Appearing before the State Licensing Board
Government and other jobs that require security clearance to conduct a background check on applicants. In this case, you must disclose your DUI conviction, even if it has been expunged. Full disclosure is required where you are applying for a government post, public office, or when contracting with the state lottery. The good thing is that even if these agencies will learn about your conviction, the expungement is going to help you since these state agencies will not use the expunged conviction against you.
- A DUI Expungement cannot Prevent a Conviction from being Priorable
Specific offenses like DUI in California are priorable. It means that if you are convicted of a subsequent DUI within 120 months, the penalties are going to be enhanced because of a prior conviction. If you had been previously charged and convicted of DUI, but the charge was expunged, if you are later convicted of drunk driving, the conviction that was expunged can still be used to enhance or impose stiffer penalties.
- A DUI Expungement cannot Prevent Immigration Consequences
Certain crimes in California are subject to inadmissibility or deportation for non-U.S. citizens. If you are convicted for driving while addicted to drugs, driving while intoxicated with a child in the vehicle, or if you have multiple prior DUI convictions, you are likely to face immigration consequences even if the prior DUI conviction had been expunged.
However, filing for expungement can help you avoid immigration consequences. This can only happen if the crime you were convicted for was deportable or inadmissible. When such a charge is reduced, it is no more inadmissible and cannot prevent you from qualifying for immigration benefits.
- A DUI Expungement cannot Overturn a Driver’s License Suspension
It is rare to find a driver’s license suspension period that lasts beyond the probation period. In the majority of DUI convictions, the sentence is six months of license suspension and three-year probation. Filing for an expungement cannot help you regain your driving privileges. The reason being you can only file for an expungement after completing more than half of the period of probation. By this time, most license suspension or revocation periods have expired, so an expungement will not help restore the driver’s license. Also, even if the probation period is thirty-six months and your driving license is permanently revoked, an expungement will not help get the license reinstated.
- DUI Expungement Cannot Reduce Your Insurance Rates
In most cases, when you are convicted of a DUI, and your driver’s license is suspended, an SR-22 form is required. Insurance companies will increase their policy rates after a drunk driving conviction. Even if your DUI conviction is expunged, it will not delete the insurance company’s database. They will still have your history, meaning that if you have a bad driving record, the insurance rates are not going to reduce even after an expungement.
Expunging a DUI without an Attorney
If you cannot afford an attorney to help you with the process of expungement, you can represent yourself. Here are essential steps to follow during a DUI expunction without legal representation:
Make Sure You Qualify
It can be frustrating to begin the process of expungement and later find out it is impossible or that you are not eligible. There are a lot of eligibility requirements for this process, as said earlier. Check out those requirements and find out if you qualify for the procedure.
Obtain a Copy of Your Criminal Records
After learning that you qualify, the next step is to gather your criminal records. Today you can find these records online or paper copies. You have to pay a fee to access these records.
Access and Fill Petition Dismissal Forms
You can download a dismissal form online or visit the court and get one. The dismissal form will ask for various information on your DUI arrest, conviction, the classification of the offense, and whether the charge can be reduced. The form might also request more information, which might require you to provide additional documentation.
Attach Additional Documents
When expunging a DUI, you will be required to provide lengthy explanations. Official declaration forms, affidavits from people willing to vouch for you, and all other documents that support the request for expungement.
File the Forms and Submit to the Local District Attorney
Before submitting the forms, it’s essential to send a copy to the DA who handled your DUI prosecution. They will sign and send back the forms if they are not objecting to the DUI expungement. The prosecution attorney will also give those victims injured because of your drunk driving an opportunity to oppose the expungement.
After, you can send the submission to the court directly. You can also send it through the mail if you have been provided with an address. When submitting, you will be required to pay a certain fee, after which you will get a reply from the court after a period of one to two months. If your request is objected, the court will schedule a hearing date. When it gets to this point, you will need a DUI defense attorney.
Find a San Jose DUI Attorney Near Me
Although you can represent yourself in a DUI expungement process, having an attorney to help you makes the process hassle-free. Therefore, if you have an interest in expunging a DUI in California, San Jose DUI Attorney Law Firm is here to help. Call us at 408-777-6630 to discuss your case. The fact that PC 1203.4 has been revised means you will need someone who is up to date with the changes to ensure you obtain the expunction. Expunging a DUI today is highly discretionary, which is why you need to build a robust and compelling case in court. With the help of our attorneys, you can build the evidence you need to be granted the petition.