Guest Post: How often are DUI cases expunged in California?
Robert Miller reached out to me to share a bit about the expungement process. It's not a part of gotten to yet (I'm still on my probation) but hope to do someday. Valuable information that I have found very useful in the hopes of moving on. Hopefully Robert will help me out when the time comes.- Tom.
How often are DUI cases expunged in California?
If you have been convicted of a DUI, clearing your record is a worthy goal that most people will have.An expungement of a California DUI would help clear your criminal record. So you may wonder how often DUI cases are expunged in California.
As it becomes easier and easier for potentially employers to obtain digital records of convictions, and as the job market makes job applications more competitive, it is easier and easier for employers to screen out the candidates with a criminal record, which leaves those with a DUI with less and less available jobs to even compete for.For those reasons, if you have a DUI on your record, expunging it from your record is something you would want to accomplish as rapidly as possible.
What exactly is on my record after a DUI?
It’s important to realize that when speaking about a “record”, that in California, after a DUI conviction you actually have two different records that your DUI shows up on.
The first is your criminal record.A criminal record will show your arrest, the case number, and the sentence (or what is called the “disposition” on a criminal record).
The second is the driving record.The driving record will show points from a DUI conviction, whether a wet reckless or a DUI, or any accident or other related traffic tickets.Any alcohol related conviction will show as a notification on your driving record, and will show the date of offense, the date of conviction, and any DMV actions related to the DUI or alcohol related offense, and the also any filings of an SR22 for insurance purposes.
A criminal conviction stays on your criminal record for life, unless it’s expunged, or pardoned by the Governor of California.It never automatically “drops off”, like items on your credit report.It can only be used against you for purposes of alleging a prior DUI for ten years, but it’s still on your record, even after that ten-year period.
Any driving record notation also stays on your record for life.It can only be used to increase insurance for three years.The points from any tickets, accidents, or court convictions can only be used against you by the DMV for a three-year period to suspend your license. But the DMV keeps track of your lifetime points for their “negligent operator” program, which is used to pull the licenses of the most serious driving offenders. There is no way to expunge your driving record, only your criminal record.
What exactly is an expungement in California?
An expungement is a motion to the court that, once granted, retroactively dismisses your case from your criminal record. There are some things that by law, an expungement cannot help you with, namely preventing criminal charges for priors for future crimes, getting federal or state licenses, or contracting with the state or federal government.
How does someone qualify for an expungement of a DUI?
In order to get an expungement order granted, you need to first bring the motion. Most counties in California have a court form available online for applying for an expungement, and in addition to the form motion, you must also provide the order for the judge to sign (California has a form for these, Forms CR-180 & CR-181). A copy of your motion must also be mailed or delivered in person to the prosecutor.
You also must meet three requirements in order to get an expungement:
- 1. You must be off probation.Either probation must have expired, or you must bring a motion to terminate probation early first.
- 2. You must have completed all the terms of your sentence.The court will look at your court file and make sure that all fines are paid, all alcohol schools are completed, and any community service, or special classes or punishment have been finished.
- 3. You must not have any other cases pending, and you must not have any convictions after the conviction you are seeking to expunge.Any convictions would be a probation violation.
What does California law state about an expungement?
California’s expungement law, Penal Code 1203.4(a)(1) states:
“In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.” (Emphasis added)
So, how often are DUI cases expunged in California?
I have bolded the sections of the law that state “shall” in the law above, because those are truly unusual in law.In most cases, and in most laws, the law explicitly gives a judge a decision to make, by stating that the judge “may, in his or her discretion”.
The expungement law is different because the use of the term “shall” means that the judge doesn’t have that discretion.As long as the person seeking an expungement meets the three requirements above, the judge has to grant the expungement petition.
As a result, a high rate of DUI cases are expunged.The only way to not get an expungement is either to not qualify by not meeting one of the three requirements above, or to not apply for one at all.
Author: This article was written by Robert Miller, an Orange County DUI Lawyer at the law firm of Miller & Associates in Newport Beach, California.
DUI Life: A Year Ago
Ran into somebody the other day. Recognized him immediately, but wasn’t sure from where. Started talking, trying to figure it out. Then it came…
“Fuck that DUI class, man. That was some bullshit”.
Ah yes. That’s where he’s from.
We caught up. He was one of the people I liked hearing from in the group session of class. Funny guy, honest. Hadn’t seen him in quite some time.
Made me think back.
A year ago, I was going every Wednesday to a three hour class, learning, and re-learning that what I had done was wrong. Learning that what others had done were wrong. Being lead in discussions around inane topics like “Why do you think people drink?”
A year ago I was going to an AA meeting every week, hearing people tell horrific stories of hitting the absolute rock bottom, then having to share “I had like three beers too many one night” and getting looks from everyone else.
A year ago, I would get into my car, turn the ignition and wait 45 seconds for my interlock to turn on, and blow into it, and blow every 15 minutes to make sure that I hadn’t had any alcohol.
A year ago, I would have never had another person in my car.
A year ago, I would have to argue with a seedy car accessories owner to get two months on my interlock instead of one.
A year ago, I was getting constant reminders - from class, from my car, from the DMV, from my insurance, from tv commercials, that I had done something wrong.
A year ago I had to go into another separate class to tell me that yes, I had done something wrong.
While it wasn’t the most pleasant flashback, it made me realize how much this whole experience has changed me. More importantly, it’s nice how much I don’t have to think about my DUI every day, every car ride, every long meeting.
Today I drive my car freely, and easily.
Today I have passengers.
Today I am not required to be anywhere, at any time for the state.
Today I am half done with my probation.
Today I still feel bad about what I have done.
Today I realize that it doesn’t define me as a person.
Today I still drink, but when I do, I take an uber.
Today if I end up drinking while out, I use my breathalyzer to make sure I’m good to drive before I do.
Today I don’t drink as much as I once did.
Today I’m paying crazy high insurance.
Today I’m closer to having this behind me.
The process of satisfying the court seemed like it would never end. That every time I would have to calibrate my interlock another month seemed like it would be forever. Every class made it seem like time was standing still. It felt like I would be punished forever.
I’m glad that I can be here to say that you won’t be. You’re punished, and you do what you need to, and little-by-little, you get to think about it less. You feel the pain less and less every day.
You move on, and eventually life returns to normal.
When you’re in the middle of it, it’s hard to imagine. The further you go along, the quicker it seems to go.
I know I started this blog with advice a lawyer told me, “It all goes away”. It’s hard to believe in the moment, but I can tell you:
It all goes away.
Honestly.
Seriously.
It all goes away.
Protip: Check and Double Check
Today was an interesting day.
Went down to the courthouse to pay my fine. My deadline is coming up and I wanted to get it out of the way. Most of my time was spent arguing how to do it - should I drive there and park or should I take the train and not worry about parking? How long is this going to take?
Most of that wasn't the issue (I walked right up to one of the clerks)
However - I came to find that not all of my paperwork had been filed. The clerk informed me that neither my DMV certificate nor my MADD certificate had been filed. I was shocked! I had taken care of these things more than 9 months ago!
I called my lawyer's office - my lawyer was no longer part of the firm. I explained to them what was going on and within ten minutes they had everything sorted out and a person to go down to the courthouse tomorrow or Monday to file everything.
A few lessons learned:
- Don't wait - The longer you wait, the more chances that something will change, something will go wrong, some mistake will be made. The sooner you take care of stuff, the sooner you're not worrying about it, and the more time you have to correct things if they go wrong.
- Check and Double Check - Last Spring I biked over to my lawyer's office (I was on full suspension) and turned in my documents. I assumed that he would turn them in to the court in the next few days or so. No real worry. But he hadn't. Either he was waiting for me to drop off the check to pay my fine, or left the firm shortly thereafter (No idea when he left). But my documents had not been filed. It was a mistake to assume that they were.
This is a tough process, I know. And it's no fun, and it's a lot of hassle. But being early, and thorough will save you a lot of headache. If I had gone in at the last moment, I could've had a longer probation, more fines, or worse.
Get it done early, and double check.