Expunging a California DUI Conviction

Posted by Jon Ibanez on October 3rd, 2015


Many of my DUI clients are mistaken in the belief that their DUI conviction magically disappears from their record after a number of years. I’ve heard clients believe the number to be anywhere from three years to ten years. Often they discover that they were mistaken when, years later, they apply for a job and discover that the DUI conviction is, in fact, still on their record.


Fortunately for those clients and anyone else convicted of a California DUI, California Penal Code section 1203.4 allows a person to petition to have their DUI conviction “expunged.”


California Penal Code section 1203.4 provides, “In any case in which a defendant has fulfilled the conditions of probation…or in any case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted relief under this section, the defendant 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; of, 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…he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted…”


In other words, if a person has successfully completed probation and if the court deems it appropriate, that person can petition to withdraw their guilty plea or guilty verdict and the court will then dismiss the case.


Although commonly used to describe the relief provided by California Penal Code section 1203.4, the term “expungement.” is actually a misnomer. Despite what most people think about expungements, it does not actually expunge or delete the conviction from the record. Rather, if the expungement is granted, the record will still show that the person was arrested and charged with a California DUI, but was dismissed by the court.


When applying for jobs to private employers, a person who has successfully petitioned the court for an expungement of their California DUI conviction does not need to disclose the conviction.


Clients are often concerned that, notwithstanding the expungement, the mere arrest will keep an employer from hiring them. However, the California Business and Professions Code prevents employers from asking about and using an arrest against a person. Simply put, an arrest legally means nothing without a conviction.


The caveat to these benefits, however, is that the conviction must be disclosed when applying for a government position, a state license, public office, or for contracting with the state lottery. If this is the case, however, a person can then say that the conviction was dismissed under Penal Code section 1203.4 after they have disclosed it.

Crime Lab Breath Test Results “Unreliable”

Posted by Lawrence Taylor on September 30th, 2015

I’ve written repeatedly in the past about the inherent inaccuracy and unreliability of breath testing machines (generically referred to as "breathalyzers").  See, for example, How Breathalyzers Work — and Why They Don’tWhat Makes Breathalyzers Inaccurate? and Ohio Rejects Popular Breathalyzer: Accuracy Challenged.  And see a treatment of the issue on my law firm’s website, Breathalyzer Accuracy.  

Independent of the inherent problems in the machines and the variations of human physiology involved, a further issue has always been the reliability of the governmental crime laboratories responsible for the calibration and maintenance of the machines.  See my posts, Lab Fraud Discovered in Breathalyzer Accuracy ChecksHow to Prove Breathalyzer Accuracy: Falsify the Records and Houston Grand Jury Subpoenas DAs in Breathalyzer Cover-Up.

As an example, consider the following recent ABC-TV news story:

Forensic Failures at State Crime Labs May Jeopardize Cases

Chicago, IL.  Sept. 23 – Some drunk drivers could go free because of law and disorder at Illinois State Police crime labs.

The ABC7 I-Team uncovered a pattern of forensic failures that could put criminal cases in jeopardy and risk thousands of charges and convictions being thrown out.

Unreliability in science is like a bull in a china shop: it can wreck everything. The Illinois state crime lab is under fire by a criminal defendant who may have been wrongly charged- using evidence with inaccurate or unreliable test results – and under fire by defense attorneys and experts alarmed by what they see as shoddy science.

James Kisla struck a pedestrian on Yackly Avenue in Lisle. According to court records, a couple ran across the middle of a street, into traffic, in front of Kisla’s car.

Kisla wasn’t ticketed in the 2011 accident but a sobriety test had him just beyond the legal limit. Then Kisla’s lawyer discovered this – a 2011 internal audit of the Illinois State Police Laboratories and blood alcohol test inaccuracies.

State police officials tell the I-Team their tests results were accurate.  But the audit called for corrective action – a revision of the labs’ "scientific method" and ordered "in-service training for the state police toxicology section."

Kisla’s lawyer, Don Ramsell, showed the audit to prosecutors.  "The prosecutor decided not to even bring the blood test results into evidence. It only took one day after for the judge to declare Mr. Kisla innocent of all the charges," Ramsell said.

Up to 15 years in jail – but Kisla was cleared because the state police forensic tests were unreliable…

The I-Team found more lab mistakes occurring in the state’s labs. We examined these internal Illinois State Police lab audits and reports going back to 2003 and found numerous blood and urine testing errors. "Test samples (were) switched," there were "mislabeled specimens", a "mix up of results," "improper calibrations" of tests, "improper methods (were) used," and "samples wrongly destroyed."

But Ramsell says the biggest problem is none of the state’s lab results for blood and alcohol tests can be considered reliable. That is because their lab technicians have never performed "method validations" on their testing procedures – a fundamental check and balance in the science world.

"Not only is it completely unacceptable but it’s shocking that no one from the state police ever reported that to anybody," Ramsell said…

Yet the readings from these unreliable machines are automatically assumed by law to be reliable and admissible in evidence — unless the defendant can somehow prove they aren’t.  And once admitted in evidence, the jury in most states is given jury instruction stating that if the reading is over .08%, the defendant is rebuttably presumed by law to be guilty.  See my post, Whatever Happened to the Presumption of Innocence?.

Do Officers Need to Read Miranda Rights During a California DUI Stop?

Posted by Jon Ibanez on September 28th, 2015

We see it on T.V. and in the movies; officers arresting someone and immediately reading them their Miranda Rights. Unfortunately it is a common misconception that a California DUI case will be thrown out because an officer does not read a DUI suspect the Miranda Rights after a DUI stop. Unbeknownst to many, the law is very specific as to when Miranda Rights must be read.               

In the landmark case of Miranda v. Arizona, the United States Supreme Court said that a confession that is the fruit of an interrogation after someone is arrested is not voluntary if the suspect does not know that he or she has the right to remain silent under the 5th Amendment. And only voluntary confessions are allowed as evidence. Therefore, all suspects must be advised of their rights before a "custodial interrogation.”. Voila! The Miranda Rights were born.

From what we’ve seen on T.V. and in the movies, most of us can recite the Miranda Warnings verbatim. However, if you’re one of the rare few who haven’t watched Law and Order recently, they go a little something like this:

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

According to the United States Supreme Court, two things must occur before Miranda Rights attach; 1.) a custody and, 2.) an interrogation.

Having said that, most of the questions asked during a California DUI stop occur after a traffic stop, but before the person is arrested. Questions that occur during this time are merely for investigatory purposes. The officer cannot arrest someone for a California DUI unless they have probable cause to believe that the person is driving drunk. The pre-arrest investigatory questions are aimed at obtaining this probable cause.

“Where are you coming from? Where are you going to? Have you been drinking? How many drinks have you had? Have you taken any medication?”

Even though a person is not yet advised of their right to remain silent, they still need not answer the questions. In fact, you never need to speak with officers.

If the officer obtains the probable cause to believe that the person is driving drunk, either through incriminating answers to the pre-arrest questions, performance on field sobriety tests, or the officer’s observation of the signs of intoxication, they will conduct a DUI arrest.

Even after a person is arrested for a California DUI, the officer still need not read a person their Miranda Rights, although they almost always do. If the driver is arrested, the officer only needs to advise someone of their rights before they conduct any questioning.

And when that happens, God forbid, remember:

“I do not consent to any search, I am invoking my 5th Amendment right to remain silent, and I want my lawyer now.”


Guilty vs. No Contest Plea in California DUI Cases

Posted by Jon Ibanez on September 25th, 2015

Most California DUI cases end in a plea deal. This means that the defendant is willing to accept the prosecution’s offered sentence in exchange for a guilty or no contest plea. Few people, however, actually know the difference between pleading guilty or no contest.

Pleading guilty to a California DUI means that you are admitting that you drove while intoxicated, drove with a 0.08 percent blood alcohol content or more, or that you did both. A guilty plea can be used against that person in a separate and subsequent civil case arising from the drunk driving.

For example, if a drunk driver crashes a vehicle into a house, the homeowner may file a lawsuit the drunk driver to recover losses associated with the crash. Since a guilty plea means that the drunk driver admitted to driving drunk, the homeowner can use the guilty plea against the drunk driver to win the civil lawsuit.

A plea of no contest, or nolo contendere, on the other hand, means that the defendant is not admitting guilt, but rather merely accepting any punishment the judge may give them as though they had pled guilty. Because the defendant is not admitting guilt, the no contest plea cannot be used against them in a subsequent civil case.

In our drunk driver hypothetical, if the homeowner were to sue the drunk driver for damages associated with an accident, the homeowner would not be able to use the drunk driver’s no contest plea to help win the civil lawsuit because the drunk driver never admitted guilt.

Whether a defendant is allowed to enter a no contest plea is dependent upon the plea negotiations. If there are no aggravating factors associated with the DUI, i.e. high BAC, prior DUI convictions, etc., the defendant may be allowed to enter a no contest plea. It is however, by no means, automatic.

As a practical matter, there is almost no difference between the two pleas as it pertains to the DUI case. The judge treats each equally. However, when possible, many DUI defendants and DUI attorneys seek a no contest plea over a guilty plea. Even if it is unlikely that a subsequent civil case will arise from the drunk driving incident, a no contest plea just looks better.

California’s DUI Child Endangerment Enhancements

Posted by Jon Ibanez on September 22nd, 2015


Earlier this month, Jennifer Karkosky, 26, of Indiana was arrested on suspicion of driving under the influence with eight, yes eight, children in her vehicle.

Karkosky’s 2000 GMC Jimmy had slid off of the road and partially down an embankment after she attempted to make a U-turn. Her vehicle was left in a 45 degree angle with the front end in the air.

Responding officers noticed the smell of alcohol on Karkosky’s breath and she told them that she had three beers earlier.

A breathalyzer later revealed Karkosky’s blood alcohol content to be 0.16 percent, twice the legal limit.

At the time of the incident Karkosky had eight children ranging in age from three to 12-years old. Karkosky told the officers that she was transporting home from swimming. The local fire department was called to the scene and confirmed that none of the children suffered injuries before releasing them to family members or the Department of Child Services.

Karkosky was charged with one count of operating a vehicle while intoxicated with a previous conviction, eight counts of neglect of a dependent child, and one count of driving on a suspended license.

While not the same as Indiana, California also treats DUI with children in the car very seriously. Not only is a person looking at the punishment under California’s DUI law, they are also looking at additional penalties under California Vehicle Code section 23572, also known as California’s DUI child endangerment enhancements.

Under California Vehicle Code section 23572, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.

The prosecutor need only prove that you were driving under the influence and that there was a minor child under the age of 14 in the car while you drove.