DUI convictions ("drunk driving") are one of the most common criminal offenses in California. Violation of DUI or "wet reckless" provisions of the California Vehicle Code (§ 23152, 23153 or 23103.5 et seq) can cause long lasting problems in employment, licensing and quality of life. A DUI expungement helps to mitigate this mistake.
What are the benefits of a DUI expungement?
There are personal and professional reasons you may want to expunge your DUI. Contrary to popular belief, an conviction for DUI does not 'drop off' your criminal record after a period of time, but requires a petition in court for relief. Expungement demonstrates that you were successful on probation and that the court found you eligible for this relief. This is evidence of rehabilitation for any employer or licensing board. It also shows that you have taken the initiative to follow through and mitigate the mistake to the full extent the law allows.
A primary value of expunging a DUI conviction is for employment purposes. Once it has been expunged, a prospective employer should not hold the DUI against you in hiring or promotion considerations. Expungement does not remove the DUI from your DMV record, however.
Do I really need an Attorney?
Probably so. The legal standard for Expunging DUI cases in California is now higher than most other expungements due to a change in the law; the court must now make a finding that the expungement is in "the interest of justice". This means the expungement of a DUI case is more complex. The Court has more power to deny a petition for expungement, and the prosecutor is more likely to object to a DUI expungement. This situation means experienced legal counsel is very crucial to success. Even with that change in the law and the accompanying factors, our success rate is still very high.
When can I expunge my DUI conviction?
You are eligible to apply for an expungement at the end of your probation term- there is no 'waiting period' for a DUI expungement. You must have fulfilled all terms of your probation (such as Cal Trans, community service, payment of fines, and alcohol school). The law allows a motion for early termination of probation in DUI cases, but that is generally a difficult, but not impossible, task as California law provides for a minimum three year probation, and Judges and Prosecutors do not want to appear 'soft' on DUI cases.
California Expungement law (Penal Code Section 1203.4) provides in part:
"[Petitioner shall]...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..." (Emphasis added)
Some DUI Law Basics:
The law controlling driving under the influence of alcohol in California is the California Vehicle Code, specifically §23152(a) and 23152(b). These are commonly called the “DUI” or “Drunk Driving” statutes and you were probably charged with both offenses. Both are misdemeanors, and both have different elements to prove that you may have been driving a motor vehicle in violation of the law.
The first section, 23152(a), is the section that actually relates to driving impairment as regards to operating a motor vehicle. The jury instruction states that a person is under the influence of alcohol if: “The alcohol in the person's system affects their muscles, nerves, or ability to operate a motor vehicle other than that of a cautious, sober person” (Cal. 12.16).
To prove 23152(a), the prosecutor must prove actual impairment. This means that you personally must be impaired for the purpose of operating a motor vehicle. This can be proved at a limit lower than the presumed limit, .08 percent. This means that if an individual has a very low tolerance for alcohol, they could, theoretically, be proved to be under the influence of alcohol for operating a motor vehicle even if their blood alcohol was substantially lower than .08 percent.
The second section, 23152(b), relates to having a blood alcohol level of .08 percent or greater while driving a motor vehicle. This section is easy for the prosecutor to prove if there is a chemical test. Be aware that you can be convicted of driving under the influence of alcohol even if you are not personally impaired. This is often seen in a low BAC case, where a person who is a social drinker can have a BAC of .10 and not be impaired. However, the law presumes impairment at .08 percent and on up. That means if you are a .09, are not impaired but are driving a motor vehicle, you are in violation of the DUI law.
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