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California DUI Expungement

dui-expungement-300x169Expungement is often described as “erasing” a conviction from your criminal record. That definition is not quite accurate. Sometimes the staff in the Clerk of Courts office will tell people that after an expungement, “it’s just like the conviction never happened.” Again, that explanation is not entirely accurate. Even an expunged conviction can have lasting consequences. An expungement can nevertheless be helpful for people seeking employment or housing after being convicted of a DUI in Orange County.

What Is DUI Expungement?

If you have been convicted of a misdemeanor DUI in California, you can petition the court for a dismissal. If you were convicted of a felony DUI, you may be able to petition for a reduction of the charge to a misdemeanor and for dismissal of the misdemeanor. If the petition is granted, the court will reopen the case and dismiss the charge.

After the dismissal is granted, you no longer have a conviction on your record. That does not mean that all traces of the conviction have been wiped out of existence, but for most purposes, you can honestly say that the charge was dismissed and that you have no criminal record.

Who Can Ask For An Expungement?

If you were convicted of misdemeanor DUI, you can file a petition for dismissal. If you were convicted of a felony DUI and were not sentenced to prison, you may be able to petition the court for a reduction of the charge to a misdemeanor, followed by a dismissal of the charge. Not all felony DUI convictions are eligible for reduction to a misdemeanor but some are. However, if you were sentenced to prison (rather than jail), you would need to apply for a pardon rather than expungement.

Defendants who are convicted of certain California misdemeanors are entitled to expungement if they complete their probation successfully, pay their fines, comply with all other court orders, and stay out of trouble. Unfortunately, drivers who are convicted of DUI do not automatically receive an expungement, even if they do all of those things. Rather, the court has discretion to grant or deny the petition.

If you were convicted of a DUI, the court will not grant your petition for dismissal unless:

Even if you meet those conditions, you will need to persuade the court that a dismissal is in the interest of justice. Factors that might influence the court include:

A DUI lawyer who is familiar with Orange County judges can help you shape a persuasive argument.

What can an expungement do?

An expungement order can be helpful if you apply for private employment. In most cases, if an employment application asks whether you have been convicted of a crime, you can legally answer “no” if the only crime on your record has been expunged. If you apply for government employment, however, you must disclose that you were convicted and that the conviction was dismissed.

Expungement can also be helpful if you are asked on a rental application whether you have been convicted of a crime. You can answer “no” if the question is asked by a private landlord and your only conviction has been expunged. You may need to disclose the conviction if you apply for public housing.

Remember that in the age of the internet, records never disappear. Many private database services collect information from government records. Private employers in California cannot legally search for criminal charges that did not result in convictions (including convictions that were expunged) but that does not mean they do not do so. Online firms that sell “background checks” may furnish information about your conviction even if that conviction was dismissed, and you may never learn that your prospective employer or landlord received that information.

What are the limitations of an expungement?

Your conviction can still be used against you, despite its dismissal, to enhance the penalty for future offenses. In other words, if you get a new DUI the day after your first DUI conviction is dismissed, the new DUI will be considered a second offense and you will be subjected to second offense penalties.

If you apply for a professional license or certification, such as a real estate license or teacher’s credentials, you will need to disclose the expunged conviction on the application. The same is true if you apply for law school or other professional training in a career that requires licensing.

Expunged felony convictions still count as convictions for purposes of federal firearms laws. You cannot possess a firearm or ammunition after a DUI felony conviction, even if the conviction has been expunged.

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Excessive Blood Alcohol Concentration

Courts take a number of factors into account when they decide upon a DUI sentence. One of those is the driver’s blood alcohol concentration (BAC). It is illegal to drive with a BAC of .08 or above, but section 23578 of California’s Vehicle Code requires courts to consider a BAC of 0.15 or higher as a “special factor” that may justify an enhanced sentence.

Even when a driver receives probation, the court is likely to impose punitive conditions that will make a driver’s life more difficult.

Refusal to Take a Test

If you refuse to take a chemical test of your breath or blood and are convicted of DUI, the fact that you refused is another “special factor” that can be used to enhance your sentence. Since judges have no evidence of your actual BAC when you refuse a test, they tend to assume that your BAC was at a high level and sentence you accordingly.

Excessive Speed

Exceeding the speed limit by at least 30 mph on a freeway or 20 mph on any other road subjects the driver to an enhanced DUI penalty. Section 23582 of the Vehicle Code provides for an additional 60 days to be tacked onto the sentence that a DUI driver would otherwise receive.

Section 23582 VC tells judges to impose the 60 day sentence as a condition of probation if the judge places the driver on probation for the DUI charge. The law also requires the 60 days to be imposed as a consecutive sentence, so it cannot overlap the sentence imposed for the underlying DUI offense.

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Reckless Driving

The offense of reckless driving is defined in 23103 VC as driving “in willful or wanton disregard of the safety of persons or property.” That essentially means driving in a manner that endangers other people or their vehicles, even if you did not actually become involved in an accident.

Driving recklessly, like driving at an excessive speed, is an aggravating DUI factor specified in 23582 VC. It subjects a driver to the additional 60 days in jail on the terms that are described above.

Minor in Vehicle

Committing a DUI while a child under the age of 14 is a passenger in the vehicle subjects the driver to at least an additional 48 hours in jail. That sentence is mandatory, even if probation is granted on the underlying offense.

It cannot be stayed and it cannot be divided into shorter periods that can be served in intervals. Longer enhanced sentences may also apply, depending on the DUI offense with which the driver is charged.

Causing an Accident

If you cause an accident that leads to an injury while you are DUI, you will probably be charged under section 23153 VC. That aggravated offense can be charged as either a misdemeanor offense or a felony offense. If you cause a hit-and-run accident while you are DUI, you will probably be charged with hit-and-run in addition to facing a longer DUI sentence

Even if you caused an accident that did not result in an injury, many judges will view the accident as a reason to increase your OWI sentence. The impact of an accident upon your DUI sentence may depend upon the court in which you are prosecuted.

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I had never gotten in trouble before, so I was pretty concerned when I called the Law Offices of Randy Collins. After a 30 minute consultation about my DUI with injury I felt like I was in the right hands. I went with them and was very happy with the result.

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