Monthly Archives: March 2022
Under California Penal Code §1203. 4 PC, some individuals can have their criminal conviction expunged from their record. That means that the court wipes out a guilty verdict or guilty plea. Instead, a plea of “Not Guilty” is entered, and the case is dismissed.
In other words, an expunged criminal conviction is set aside as if you were never judged guilty or pled guilty. That is what is meant by “cleaning” your criminal record.
However, the arrest is not erased. Expungement implies that the entire criminal matter is erased from your record. A better term for a California expungement might be “dismissed.”
The arrest remains on your record, but anyone reviewing your criminal history would only see that you were arrested. After your arrest, the case was dismissed without a guilty verdict.
Not all criminal convictions are eligible for expungement. The good news is that most driving under the influence convictions in California meets the requirements for an expungement.
Who Can Receive a California DUI Expungement?
Individuals convicted of misdemeanors and felonies may be eligible for an expungement in California if they meet the following requirements:
- Your conviction occurred in state court
- You were not sentenced to serve time in state prison
- You completed probation, or it has been one year since your conviction if you were not ordered to serve probation
- You met all other sentenced requirements, such as treatment programs, community service, fines, restitution, etc.
- You did not violate any of the terms of probation
- You are not currently on probation, serving time for another offense, or charged with another criminal offense
Most of the DUI convictions in California meet the above requirements for a DUI expungement. However, you may want to consult with a California DUI defense lawyer to verify that your drunk driving charge is eligible for expungement.
How Does DUI Expungement Work in California?
You must complete probation and all conditions required by probation before you apply for DUI expungement. General terms for DUI probation in California include:
- Driver’s license suspension
- Alcohol program (DUI school)
- Time in county jail
- Three to five years of summary probation
- Agreement to submit to DUI breath test or DUI blood test if arrested for driving under the influence
- Zero-tolerance for driving with alcohol in your system
- No criminal offenses during probation
There could be other conditions for DUI probation based on the drunk driving offense and the facts of the case. However, regardless of the terms of probation, you must complete probation successfully to be eligible for an expungement of a drunk driving charge.
After completing probation, you file a petition for expungement with the court.
Can I Receive a DUI Expungement Earlier?
Because summary or formal probation for a DUI conviction lasts between three to five years, a person could wait a long time to clear a DUI conviction from their criminal record. However, you may be able to have probation terminated early, which would allow you to petition the court for a DUI expungement.
Some individuals could qualify for early probation termination as soon as 18 months after conviction. However, the following circumstances must apply:
- The person has completed the terms of probation successfully AND
- Some circumstances justify granting an early termination of probation.
Situations that might qualify as circumstances to justify early probation termination include traveling for work, caring for minor children or sick family members, obtaining a job, or obtaining higher education or training for advancement at work.
The judge has the sole discretion to grant early termination from DUI probation if the person meets the above requirements. However, many judges hesitate to grant early termination of DUI probation.
One reason could be the zero-tolerance requirement for driving with alcohol in the person’s system. Other judges may hesitate to grant a petition for early termination when specific facts are present in the case, or the person has a subsequent drunk driving or drugged driving offense in their past.
Do I Get My Driver’s License Back if My DUI is Expunged?
For most people, probation generally lasts longer than a suspended driver’s license. However, if you complete your probation before your driver’s license is restored, a DUI expungement will not overturn a driver’s license revocation or suspension. Expungements do not restore driving privileges.
However, there are other benefits of receiving a DUI expungement. For example, you are not legally required to disclose an expunged conviction when applying for a job.
California’s “ban the box” law prohibits employers from asking about a person’s criminal history before making a conditional employment offer. The employer cannot turn down the applicant for employment because of a conviction revealed after making a conditional employment offer until it completes an individualized assessment.
However, you would not need to disclose an expunged DUI conviction at all. Expunged DUIs cannot be used to make employment decisions, including hiring or promoting an employee.
There is an exception for teaching credentials and state licenses. When applying for these licenses, you must disclose all convictions, including expunged DUI convictions. State licensing boards are permitted to use an expunged DUI case when making decisions regarding your license or employment.
Even if you are required to disclose an expunged conviction, an employer may look more favorably at a dismissed DUI case instead of a guilty verdict.
How Does an Expunged DUI Impact Future DUI Arrests?
Even though your DUI conviction was expunged, it can significantly affect penalties for future drunk driving convictions. Drunk driving in California is a “priorable” offense. That means that the DUI penalties increase for each subsequent DUI conviction.
The increase in penalties applies to convictions within ten years. Therefore, if you are found guilty of drunk driving within ten years of a DUI conviction that was expunged, you can still face harsher penalties, just as if your drunk driving conviction was never expunged.
What Should You Expect After a California DUI Arrest?
If you are arrested for drunk driving, you have two different cases. The Department of Motor Vehicles handles one case, and the other case is your criminal case handled by the Superior Court.
APS Hearing with the DMV
Call the DMV immediately after a DUI arrest regarding your DMV Administrative Per Se (APS) case. You have just ten days from your arrest to request an APS hearing. If you do not request a hearing within those ten days, your driver’s license is automatically suspended.
Your “pink temporary license” given to you by the police officer is only good for 30 days from the arrest date. After that, if you request an APS hearing, the DMV issues a new temporary license effective when the pink temporary license expires.
The DMV schedules a hearing to determine whether to suspend your driver’s license. Many people decide to represent themselves at the APS hearing. Unfortunately, they discover too late that representing themselves was a poor decision.
An experienced drunk driving defense lawyer may be able to present one or more defenses that could help you avoid losing your driving privileges. In addition, the attorney may have the chance to cross-examine the arresting officer and review evidence. These steps could help with your APS hearing and your criminal case.
If you have trouble contacting the DMV about an APS hearing, you might want to call a California DUI defense attorney immediately for help.
Criminal Proceeds for a California DUI Charge
You may also agree to a plea deal with the prosecutor, seek and agree to a court offer, or proceed to trial.
The best way to know what to do is to talk with a lawyer. A lawyer evaluates your case to determine how strong the evidence is against you and what your best options are for defending the charges or avoiding the harshest penalties for a DUI conviction.
Remember to tell your attorney everything about your case. Do not lie or hold anything back from your lawyer. Your attorney cannot represent you effectively if he does not know everything about your case.
If possible, the goal is to keep your driver’s license and avoid a conviction. If not, the goal is to minimize the penalties you face for a DUI conviction.
With each new DUI conviction in California, the penalties increase. DUI convictions are “priorable” offenses in California. That means if you have any prior DUI convictions, they could impact the sentence for a new drunk driving charge, even if the court expunged prior convictions for driving under the influence.
A third-time DUI offense can result in severe penalties, including jail time, fines, probation, and DUI school. In addition, you could lose your driving privileges for up to three years.
Working with a California DUI defense attorney could help you avoid some of the most severe penalties for a third-DUI conviction. Let’s look at some of the most frequently asked questions about third-time DUI charges in California.
Is a Third DUI Offense a Felony or a Misdemeanor?
In most cases, a DUI third offense is charged as a misdemeanor. However, a third DUI offense can be charged as a felony under some circumstances. Factors that could upgrade a DUI third offense to a felony include:
- Causing a traffic death
- Causing severe injuries to other people
- Having a prior DUI felony conviction on your record
It is important to note that a DUI felony charge follows you for the rest of your life. So even if your felony DUI charge was 25 years ago, a third drunk driving charge would be charged as a felony.
The penalties for a felony DUI are much more severe. For example, instead of spending time in county jail, you are sentenced to state jail, which could prevent you from receiving a DUI expungement.
In addition to longer jail time, higher fines, and harsher penalties, a felony conviction impacts your rights. For example, your right to own or possess a firearm is revoked entirely in California.
What Are the Penalties for a Third DUI Conviction in California?
The penalties for a conviction of a DUI-third offense within ten years include, but are not limited to:
- County jail sentence between 120 days and one year
- Installation of an Ignition Interlock Device (IID) for two years
- Informal probation from three to five years
- DUI education program for 30 months
- Fines and penalties between $2,500 and $3,000
- Driver’s license suspension for three years, but you might obtain a restricted license after 18 months or could drive right away with an IID in some cases
In addition to the above penalties, you need to be aware of and follow the terms of your informal probation.
Informal probation requires that you do not commit any crimes during the probation period. In addition, there is a zero-tolerance policy for driving with alcohol in your system. You also agree to take a chemical DUI test if you are arrested for drunk driving again.
Furthermore, judges may order additional penalties for a third-time DUI conviction. You could be ordered to pay restitution if you caused damages while driving under the influence. Judges could order individuals to participate in drug or alcohol anonymous meetings or participate in a victim impact panel.
Are There Aggravating Circumstances That Could Increase DUI Penalties for a Third DUI?
Yes, some aggravating circumstances can result in harsher penalties for a DUI conviction. Examples of aggravating circumstances include:
- Underage drinking and driving
- A blood alcohol content (BAC) of .15% or higher
- Causing a DUI accident
- Driving at excessive speed
- Refusing to take a chemical test to determine BAC
- Child endangerment (having a child in the car under the age of 14 years
Talk to a California DUI defense attorney if you cause a DUI accident or have other aggravating circumstances. You could face felony charges or significant time in jail. In some cases, you could be charged with additional crimes.
What Happens to My Driver’s License After Three DUIs in California?
Many people wonder if they will ever get their driver’s license back after a third DUI within ten years or after a felony DUI. If you do not want to lose your driving privileges after a DUI third offense, you would need to win your case at the Administrative Per Se (APS) hearing at the California Department of Motor Vehicles (DMV).
However, that is just the first step. You would also need to win your criminal case to avoid license revocation.
There is some good news. If you did not refuse a breath test or the chemical blood test following your arrest, you could continue driving if you install an Ignition Interlock Device. The device must remain in your vehicle for two years. However, if you refused a BAC test after your DUI arrest, you cannot get a restricted license or drive for three years.
Choosing to drive with a suspended driver’s license results in being classified as a habitual traffic offender by the California DMV. Instead of going this route, talk with a lawyer about possible defenses to a DUI third offense.
Are There Defenses to Drunk Driving Charges for a Third Time?
Most people want to avoid jail time. That is often their top priority. A DUI conviction could result in jail time, but a judge may allow you to serve that time on home detention. Home detention or house arrest has strict rules that you must follow, or you will serve the rest of your time in jail.
However, other penalties for a DUI third conviction can severely disrupt your life, harm your career, and make it difficult to care for your family. The best way to avoid these penalties, including jail time, is to discuss potential DUI defenses with a criminal defense lawyer.
Potential DUI defenses that might apply in your case include, but are not limited to:
- Police officers failed to administer the Field Sobriety Tests (FSTs) incorrectly
- You were given unreliable, non-standard roadside sobriety tests
- The police officer lacked reasonable suspicion to pull you over for a traffic stop
- You have a medical condition or were having a medical emergency that appeared to be intoxicated
- You have a medical condition such as acid reflux or GERD that could make the results of a breathalyzer test incorrect
- There was no probable cause for arresting you on charges of driving under the influence
- The blood or urine samples were contaminated, or the chain of custody was not maintained
- You have dental work that caused inaccurate breathalyzer results from “pooled” alcohol in your dental work
- The breathalyzer or other BAC equipment was defective, malfunctioning, or not calibrated correctly
- The police officers or individuals operating the BAC equipment or taking samples made mistakes because of lack of training or negligence
If your attorney cannot have your third-time DUI charges dismissed, he may be able to convince the prosecutor to reduce the charges to a dry reckless, wet reckless, or other traffic offense that carries less severe penalties than a third DUI conviction. Also, your attorney may be able to enter a plea bargain that avoids some of the harshest penalties for DUI third.
Could I Receive a DUI Expungement for a Third DUI Conviction?
Yes, DUI third convictions are eligible for DUI expungement. However, you must complete all terms of your DUI probation successfully. Furthermore, you cannot serve time in state prison and must meet all other conditions and penalties of your sentence.
If your DUI third conviction is expunged, it will appear as a not guilty verdict – dismissed case on your criminal record. However, the arrest for the third DUI does not disappear. It can also be used against you for sentencing purposes if you are convicted of another DUI charge within ten years (indefinitely for felony DUI charges).
How Can a California DUI Defense Lawyer Help Me with a 3rd DUI Charge?
If you wonder whether you need a DUI attorney for a 3rd offense DUI charge, consider the potential consequences. Because DUI third offenses have mandatory jail terms, can you afford to be out of work from three months to a year? If you lose your driver’s license for three years, will you be able to work?
Working with an attorney could help you avoid these penalties in some cases. For example, your attorney may attack the state’s evidence to negotiate a favorable plea deal with the prosecutor.
Prosecutors understand that private DUI defense lawyers are willing to take cases to court when they believe they can win. However, individuals representing themselves and public defendants are not as likely to take a case to trial. Therefore, prosecutors may be more willing to negotiate a more favorable plea deal with a private defense lawyer to avoid going to trial with a weak case.
Attorneys investigate your DUI stop and arrest to determine if your legal rights were violated. If the police officer violated your legal rights, the evidence gathered related to the DUI charges could be inadmissible in court. If so, your DUI third offense charge could be dismissed.
The best way to protect your legal rights is to ensure that you receive accurate, trusted legal counsel. The police officers nor the prosecutor will tell you if there is a problem with your case. Their sole goal is to obtain a guilty verdict and put you in jail.