Expungement of DUI Cases

If you have already been convicted of a DUI, you may become eligible for an expungement of your DUI conviction under California Penal Code Section 1203.4. An expungement results in a dismissal of your case. If you are granted an expungement, the court will set aside and dismiss the conviction. Specifically, the court will withdraw your guilty or no contest plea, or guilty verdict if you went to trial, and grant a not guilty plea.

Why should you apply for an expungement of your DUI?

There are several personal and professional reasons why someone would want to apply for an expungement. An expungement is not automatically granted, and will not be granted in the event that you have broken any law since you received your DUI conviction, so the fact that your conviction is set aside proves to you and others that you have learned from your experience and have lived a law-abiding life since your conviction.

On a professional level, you can truthfully tell private employers that you have not been convicted of a crime. What’s more, California Labor Code §432.7 prevents employers from asking about any arrest that didn’t result in a conviction, inquiring about it from other sources or use it in a hiring decision.  Note that if you ever apply for a job with a public entity, or for a professional license, when asked if you were ever convicted of a crime, you will have to report “Yes, and my conviction was dismissed.” Again, the fact that your conviction was set aside will definitely reflect more favorably on your character and indicates that you have fulfilled the requirements necessary to have your conviction set aside.

Additionally, most Licensing and Certification agencies in California will not grant a license to someone who has been convicted of a crime. The same is true for Governmental jobs. However, if your conviction has been expunged, most Governmental licensing and hiring agencies (except police agencies) are required to treat you the same as if you were never convicted of the crime.

What An Expungement Can Do For You 

An expungement will reflect that your conviction has been set aside. An expunged record cannot be used by private employers as a basis to deny you employment. Also, in the State of California, Government Employers (except for the police) and Licensing Agencies such as the Department of Real Estate, Board of Nursing, etc., will treat you the same as if you have never been convicted of a crime if your record has been expunged.

What An Expungement CANNOT Do For You

An expunged record can still be reviewed by a judge for the purposes of increasing your sentence if you are ever convicted of another crime in the future.  Also, an expungement does not wipe out your criminal record. Your criminal court file will not be physically destroyed, and is therefore searchable and is often discovered by private investigators and others who perform background checks. If your criminal court file is discovered, it will show that your conviction was set aside by the court. Accordingly, the Judicial Counsel of California advises that if you are asked by a private employer if you were convicted of a crime, you should answer “Yes, and the conviction was dismissed.” In the case of public employers and licensing agencies, you are required to answer that you have been convicted of a crime and that your conviction has been dismissed. Additionally, an expungement will not automatically grant you the ability to possess a firearm, nor will it restore any driving privileges that were revoked by the DMV due to the conviction.

When Can You Apply For An Expungement?

If you have been convicted of a misdemeanor DUI in a California state court (a 1st, 2nd or 3rd DUI with no accidents or injuries involved), and were not sentenced to prison, you are eligible to apply for an expungement at the end of your probation term.  If your probation term has not ended but you have fulfilled all other terms of your probation (such as CalTrans, community service, payment of fines) your lawyer may apply for early termination probation. Once early termination of probation is granted, you will be eligible to also apply for an expungement.

If you have been convicted of a Felony DUI in California, you would first need to petition the court to reduce the felony to a misdemeanor. So long as you were not sentenced to prison, and your Felony is reduced to a misdemeanor, you will be eligible to apply for an expungement.

If you served time in State Prison or otherwise were under the care of the Department of Corrections, you will not be eligible for an expungement, but may be eligible for a Certificate of Rehabilitation from the California Board of Prisons.

1. What is the legal Blood Alcohol Content (“BAC”) in California?

0.08%, meaning that approximately 8% of your blood consists of alcohol. For minors (persons under 21 years old) this amount is even lower at 0.01%. However, under California law, you may be still convicted of drunk driving under California Vehicle Code 23152(a) even if you are driving under the influence of any amount of alcohol or drugs.

2. What are enhancement penalties?

Enhancement penalties are circumstances that serve to increase the penalties associated with your DUI. Examples are:

Driving with a Minor under the age of 14 in the vehicle at the time of the DUI
Refusal to Submit to or Failure to Complete Chemical Test
Excessive Blood Alcohol Level .20 or Above
Second or Subsequent Offense Involving Alcohol or Drugs – Multiple DUI’s within Ten (10) Years
Speeding 20 or More mph on the Street or 30 or More mph on Freeway + Reckless Driving Under California Vehicle Code §23103
Impoundment of Vehicles or Sale as Nuisance
Fourth or Subsequent DUI Conviction Within Ten (10) Years Makes Current DUI Chargeable as a Felony
Prior Felony DUI Conviction Within Ten (10) Years Makes Current DUI Chargeable as a Felony
DUI in Highway Construction or Maintenance Zone
DUI in Safety Enhancement Zone (e.g. Golden Gate Bridge)
Bodily Injury inflicted on Another Person

Each one of these Enhancements carries specific penalties that will dramatically alter the direction your case takes.

3. Will I have to come to court or to my DMV hearing?

Your time is valuable and the answer to this depends on your case. In most cases an experienced DUI attorney can appear on your behalf and you will not have to make any appearances at all. However, your attorney might ask you to attend certain hearings for strategic reasons as well.

4. Will I lose my Driver’s License?

In some instances the arresting officer will confiscate your license during the arrest. If this happens they will typically provide you with a temporary license that will be good for 30 days. In any case, you will have 10 days to schedule a DMV hearing. If you are convicted of a DUI by a court, your license will most likely be suspended or revoked for a period of time to be determined by the court. Enhancements will affect the period of the suspension and any other punishments. Also note that as of July 1, 2010, the DMV will require Ignition Interlock Devices in certain DUI cases throughout California.

5. Will I have to serve Jail time?

If you are convicted of a DUI you may have to serve time in jail, however, with the aid of a skilled DUI Attorney, your chances of proving your innocence and avoiding any jail time will go up exponentially and dramatically.

6. What are the typical penalties for a DUI?

The penalties for a DUI will vary from case-to-case and court-to-court. However, if you do not have a skilled DUI Attorney to help you, you can almost always expect more severe penalties and disappointing results.

7. Do I need an attorney to help me protect my rights after a DUI charge?

The reality is that you have several options available to you; one of them is to try and represent yourself. However, this course of action is similar to someone operating on themselves. Attorneys spend years learning about the law and its application in law school and we spend even more time mastering our profession as practicing members of the Bar and it is unwise to try to represent yourself if you can afford an alternative.

If you cannot afford an attorney, you can apply to recieve assistance from a public defender. While public defenders are attorneys licensed by the CA bar, they often have exasperating caseloads, which leave little time available to focus on each case. Whether you hire a private attorney or are appointed a public defender, you should feel comfortable with the attorney who is representing your case and, in essense, what happens in your life.

Remember, an experienced California DUI/DWI attorney can help reduce or dismiss the consequences you may face if you are charged with a DUI. If you were charged with a DUI, you will likely be charged with two separate counts of DUI depending on your Blood Alcohol Content: 23152(a) for driving under the influence of alcohol, and a separate charge, 23152(b) for driving under the influence of alcohol with a BAC of .08 or more. An experienced DUI attorney will fight to dismiss at least one of the charges against you.

The following is a summarization of California Vehicle Code §23152. The full text of the law is included at the end of this section.

DUI PENALTIES

First Time Offenders (Misdemeanors) – In California, a first time DUI conviction carries a sentence of at least 96-hours and up to six (6) months of jail time. In addition to the jail time, California law imposes a fine of $390 – $1,000 plus penalty enhancements.

New law effective July 1, 2010 – if you received a DUI in LA County, Tulare County, Sacramento County or Alameda County, the DMV will require you to install an IID for five months or more, per California Vehicle Code 23700.

Second Time Offenders (Misdemeanors) – In California, drivers who have had two (2) DUI violations within 10 years of each other are sentenced to a minimum of 90 days and up to one-year in the county jail. The court will also issue a fine of $390 – $1,000 plus penalty enhancements.

Third and Subsequent Offenses (Misdemeanors) – In California, if a driver is convicted of a third DUI violation within 10 years, the law imposes a sentence of not less than 120 days and not more than one year in county jail. There is also a fine of $390 – $1,000 and the offending driver will have his license revoked plus penalty enhancements.

Additional Sentences – If a person guilty of a DUI injures one other person, the prison sentence is escalated from 90 days to one year of jail time plus penalty enhancements.

If a person guilty of a DUI injures more than one other person, the prison sentence is increased by one-year for each injured person up to a maximum of three (3) additional years.

If a person guilty of a DUI injures has a minor (under the age of 14) in the vehicle when he is arrested, the court may, at its discretion, enhance the punishment by:

Adding an extra 48 hours of continuous jail time for the first offense;
Adding an extra 10 days for the second offense;
Adding an extra 30 days for the third offense; and
Adding an extra 90 days for all subsequent offenses.
FIRST TIME OFFENDER PROGRAM

In California, first time offenders whose BAC was below 0.20, may be ordered to participate in an alcohol abuse program that is at least three (3) months long. The program must involve at least 30 hours of education, group counseling, and individual counseling sessions.

If the BAC is above 0.20, the program must be at least nine (9) months long and involve at least 60 hours of education, group counseling, and individual counseling sessions.

Also, you may be required to place an Ignition Interlock Device on any vehicle you drive

LICENSE SUSPENSION

In California, a person convicted of a DUI will have their license suspended until they have successfully completed the programs described above. Fortunately, a restricted license may be available after a 30 day initial suspension period.

IGNITION INTERLOCK SYSTEM (IID)

In some instances, and at the Court’s discretion, the person convicted of a DUI may have an Ignition Interlock System attached to their vehicle. This system will test the driver’s breath for alcohol and prevent ignition if there is any alcohol on the breath. This system may be attached for up to three years.

New law effective July 1, 2010 – if you received a DUI in LA County, Tulare County, Sacramento County or Alameda County, the DMV will require you to install an IID for five months or more, per California Vehicle Code 23700.

CHEMICAL TEST REFUSAL

While California does not require people suspected of being under the influence to submit to a chemical test, anyone that refuses these tests must be aware that their penalties may be enhanced in the following ways:

First Conviction – An additional 48 hours jail time
Second Conviction – An additional 96 hours jail time
Third Conviction – An additional 10 days jail time
Subsequent Conviction – An additional 18 days jail time
CALIFORNIA VEHICLE CODE § 23152

(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(e) This section shall become operative on January 1, 1992, and shall remain operative until the director determines that federal regulations adopted pursuant to the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. Sec. 2701 et seq.) contained in Section 383.51 or 391.15 of Title 49 of the Code of Federal Regulations do not require the state to prohibit operation of commercial vehicles when the operator has a concentration of alcohol in his or her blood of 0.04 percent by weight or more.

(f) The director shall submit a notice of the determination under subdivision (e) to the Secretary of State, and this section shall be repealed upon the receipt of that notice by the Secretary of State.

If you’re stopped and the police believe that you have been drinking, the police will only be doing their job if they try to determine whether or not you’re intoxicated. There are two problems here: (1) The so-called objective tests that the police use to determine whether you’re intoxicated are extremely subjective and (2) In California, you can be considered intoxicated and in violation of the DUI laws even if your Blood Alcohol Content (BAC) is under the legal limit.

That’s right, even though the legal limit for DUI in California is .08 BAC – meaning you’re in violation of the law if your BAC is .08 or higher – you can still be convicted of a DUI if you’re under that limit!

Why, you might ask? Well because there’s a little law in California that says so…California Vehicle Code 23152(a) provides: “it is unlawful for any person who is under the influence of any alcoholic beverage…to drive a vehicle.” Therefore, if you’re have had one drink, say a .05 BAC, and happen to change a lane abruptly when you’re driving, the police may determine that you’re “under the influence” and therefore in violation of the law! (Note that there’s a separate law, California Vehicle Code 23152(b), which provides for the .08 BAC as an additional DUI charge).

To top it off, the science behind the way the BAC is calculated is questionable, leading to errors that may lead to the conclusion that you were over the legal limit when in fact you were not!

If you haven’t been drinking, cooperate with the police and they should let you go. However, if you are ever stopped and have had one or more drinks, you may want to keep the following information in mind…you might even want to print this article and keep it in your car in the event you’re pulled over and have been drinking.

1. Remain Calm And Only Provide Requested Documentation – By law you are required to show proof of insurance, a valid driver’s license and valid registration. You want to stay calm when you’re reaching for your glove box and wallet…the officer will be building a case against you and being nervous and clumsy can be indicators of intoxication in the officer’s eyes. Any such information or so-called indicators of intoxication will be noted in the Police Report. So just say “Hello Officer, I will now provide you with my license, insurance and registration.”

2. Do Not Answer The Officer’s Questions – Remember, anything you say or do can be used against you. From the time that the officer pulls you over, they will pay attention to everything in order to build a case against you. The only time you should answer any questions is if you have information that would aid in your defense such as a medical condition that would cause your eyes to twitch, etc. The police assume that you will not be truthful about how much you have had to drink, so if you say something like “I’ve just had a beer” they take that to mean “I’ve just had 5 beers.” It’s not that they necessarily think you’re lying; it’s just that they believe that if you’re intoxicated, your memory will not be clear about how much you have actually had to drink.  To be on the safe side, just repeatedly say: “Under the advice of my lawyer, I respectfully decline to answer that question.”

3. Never Do Any “Test” That The Police Ask You To Do – The police will ask you to follow their finger or pen to see how your pupils move…if your pupils move in a way that the officer determines is wrong, it will be taken as evidence of intoxication. Similarly, the officer will ask you to do field sobriety tests such as walking on a real or imaginary line, balancing on one foot or touching your finger to your nose. Do NOT do any of these tests! These tests are NOT objective indicators of intoxication and are hard to perform even if you’re relaxed and in great athletic shape, let alone tired and intimidated while you have an officer shining a flashlight in your face on the side of the street! Again say “I respectfully decline your request.”

4. DO NOT BLOW INTO ANYTHING – Unless you’re under 21 years old, decline doing any type of breath test. The breath testing devices are extremely flawed and there will be no evidence to retest after you’re arrested, so don’t take them! When asked to do any type of breath test say “I respectfully decline to submit to a breath test – I will consent to a blood test.”

5. REQUEST A BLOOD TEST – If you refuse both a breath test and a blood test, you’re going to be violating another law and will automatically lose your driver’s license. Since the breath testing devices are extremely flawed, make sure you request a blood test. The officers will try to scare you into taking a breath test…they will say that you’re going to spend the night in jail and that a breath test is so much faster and easier. Don’t be fooled, it is easier – for them to arrest you more quickly. They’re planning on arresting you anyway, so you’re going to be spending the night in jail regardless! Again say “I respectfully decline to submit to a breath test – I will only consent to a blood test.”

All of this sounds easy, but if you’re pulled over you may get nervous and the officers will probably try to intimate you into answering their questions and doing their tests. Don’t give into the pressure. Remember that at the same time the officers are doing their job, you also have rights that you are entitled to. Just try to remain respectful towards the officers while keeping in mind that you’re entitled to respect of your rights as well. There’s a lot at stake…a DUI conviction can have very serious consequences that can harm your career and family. Remember the few sentences in quotes above, be respectful to the officer, and you will be in much better shape than 99% of anyone else stopped for a DUI.

For more information about California DUI laws and additional information if you have been charged with a DUI, go to: www.DUIpartners.com.

Five things you need to know if you are charged with a DUI in California:

HIRING AN EXPERIENCED DUI ATTORNEY CAN MAKE A DIFFERENCE IN YOUR CASE

A recent study revealed that 70% of people who are charged with a DUI in the state of California are first time offenders. That means that they are likely ordinary people with little experience with the legal system. An experienced criminal law attorney who specializes in DUI cases and cares about your case can spend the time and effort required to file motions, request additional discovery, and conduct investigations that could lead to a dismissal of your DUI charge. Even if you’re convinced that you’re guilty, an experienced attorney will look through all of the evidence in your case to determine whether you were treated fairly in accordance with the law, and whether a reduction or dismissal of the charges against you are warranted

AN EXPERIENCED ATTORNEY WILL PROTECT YOUR TIME & PRIVACY

Depending on the individual circumstances your case, you may not have to attend all court hearings. Experienced attorneys may be able to attend some or even all of your court hearings on your behalf and you will not need to spend time away from work or even be seen in court.

THE DMV MUST BE CONTACTED ASAP

In order to preserve your right to drive in the state of California, you or your legal representative must contact the proper DMV Drivers Safety Field Office to schedule a hearing within the first 10 days of your arrest. If the DMV is not contacted within this 10 day timeframe, your license will be automatically suspended for 30 days or more. The DMV hearing is separate from the Court hearing, and determines whether or not you can keep your license. Even if your DUI is reduced to a reckless driving offense in criminal court, the DMV can still suspend your license.

THE CRIMINAL COURT HEARING IS SEPARATE FROM THE DMV HEARING

The Criminal Court hearing determines whether you will be convicted of the charges filed against you, the fines you may have to pay, probation and additional driving suspensions. You may be charged with two separate DUI offenses under the California Vehicle Code (CVC 23152(a) and CVC 23152(b)). An experienced DUI attorney may be able to aid in the dismissal of at least one of the charges. An important bit of information to keep in mind: the timeline for the DMV hearing and the Criminal Court hearing are unrelated. Depending on whether your attorney files motions and requests additional discovery, the Criminal Court hearing may span over several months, while the DMV hearing typically does not

EVIDENCE MATTERS

By law, the prosecution must turn over the evidence that they intend to use against you in court. However, the prosecution is not obligated to turn over all the materials that are related to your case, such as the arresting officer’s file. An experienced DUI Attorney will take the time request discovery to obtain important information about your case, perform independent investigations, and even retest blood and urine samples, which may lead to a dismissal of the DUI charge.

A DUI charge is a serious offense and can affect many aspects of your life, including your career and relationships. Although you may be entitled to representation by a Public Defender, hiring an experienced DUI attorney who can spend the extra time you deserve on your case is the best way to make sure your interests are fully represented. Select an attorney who you feel comfortable with, who is easy to reach, and most importantly, who you feel like you can trust

Getting full license back this week, just wondering what rights have been taken away from me. I will never drink even a sip of alcohol when driving, but can they search the car for no reason?

www.myduiattorney.org interviews Lawrence Taylor, the ‘dean’ of DUI at his offices in Long Beach, California. Larry’s offers an educated wealth of information about DUI laws, drunk driving politics, and more. Larry’s 1st question talks about his personal views on DUI, and the appropriateness of how punishing DUI laws are.

DUI DWI Drunk Driving Driving Under the Influence and how to beat the charges in California

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