When a person is convicted of a DUI, they face at a minimum of three years of probation, fines and fees of several thousand dollars, and a DUI class. Beyond that, depending on the severity of the DUI, a person can also face jail, rehab, a Mothers Against Drunk Driving Victim Impact Panel, a Hospital and Morgue Program, or an exorbitant amount of AA meetings (to name just a few of the consequences). However, for some, none of these penalties is as concerning for them as having the DUI on their criminal record.

Naturally, their first question is, “Can I remove the DUI conviction from my record?”

Unfortunately, when a person is arrested and convicted of a California DUI, both the arrest and the conviction will stay on their record forever. However, an arrest alone cannot be used against a person if they were never convicted. Remember, everyone is innocent until proven guilty and if a conviction never occurred, then the person is still innocent. Simply put, an arrest means nothing without a conviction and employers cannot inquire about an arrest that did not lead to a conviction nor can they use an arrest as a reason not to hire someone.

A conviction, on the other hand, does mean that a person was guilty, and a conviction can be used against them by employers.

Let’s return to the question, “Can I remove the DUI conviction from my record?” While the answer might be, “no,” there’s a very large “but” right behind it. “No, but a person can get an expungement.”

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…”

Simply put, if a person convicted of a DUI successfully completes probation, they can petition to withdraw their guilty plea, no contest plea, or guilty verdict following a trial and the court retroactively dismisses the case.

The word “expungement” is somewhat of a misnomer in that, while many people believe that the DUI will be “expunged” or erased, it does not. It will, however, appear as having been “dismissed” by the court. Dismissed cases do not result in convictions. Thus, if a DUI is dismissed (i.e. “expunged”) through California Penal Code section 1203.4, a person will no longer need to disclose the DUI conviction to most potential employers.

Although a person does not need to disclose a DUI that was dismissed/expunged to most employers, there are exceptions. The conviction must still 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.

A DUI conviction should not hold someone back forever, and expungement laws exist so that they don’t. If you, or someone you know, has suffered a DUI conviction, were successful at completing probation, and are ready to move on, contact a California DUI attorney about expunging the DUI.

After having a few drinks with friends following work, a driver heads home. While on their way, they don’t make a full stop at a stop sign and are pulled over law enforcement. After telling the driver why they were pulled over, the officer begins asking questions. “Where are you going? Where are you coming from? Have you had anything to drink?” Without thinking about it, the driver says, “I had a couple of drinks with co-workers and I’m on my way home.” The next thing that driver knows is that they are in the back of the squad car and heading to the station on suspicion of driving under the influence.

The driver is released the following day having been charged with a DUI. They contact a DUI attorney and ask, “Can my case be dismissed because I was never given my Miranda Rights and I told the officer too much?”

The question is a common one since very few drivers actually invoke their right to remain silent during a DUI stop. This is true for a number or reasons; a driver might think that cooperation will help their cause, a driver might not know they had a right to remain silent, or a driver might just get too nervous to think about whether they should talk to the officer or not.

Unfortunately, in the scenario above, the case will not be dismissed and the officer legally did not need to give Miranda Warnings.

The United States Supreme Court in Miranda v. Arizona held that, since only voluntary confessions are admissible as evidence, a confession cannot be voluntary (thus admissible as evidence) unless a person knows that they have the right not to say anything. In other words, a person who does not know they have a right to remain silent and is not advised of such might mistakenly believe that they must talk to officers, thus making their confession involuntary. A confession is only voluntary if a person knows they have a right not to say anything and proceed to choose to speak to law enforcement. As such, the United States Supreme Court held that law enforcement cannot engage in a “custodial interrogation” until a person has been advised of their rights, including the right to remain silent under the 5^th Amendment.

This means that officers must give the Miranda Warnings after a person has been arrested, but before an interrogation. Unfortunately, questioning by officers during a DUI stop in most instances, is not a custodial interrogation.

When the driver in the above scenario was stopped because they made a “California stop,” they were not “arrested” or “in custody.” When a person is stopped on suspicion of a DUI, or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. During the stop, the officer can ask questions without giving the Miranda Warnings because the driver was not yet arrested.

During that time, the driver still has the right to remain silent, but officer need not inform the driver of that right. These pre-arrest questions are only considered preliminary in nature, and any answers by the driver in response are fair game for prosecutors in a DUI case against the driver.  

If, on the other hand, the driver engages in a “California stop” and is arrested (not merely stopped) after the officer suspects that the driver is under the influence, the officer cannot ask questions without first giving the Miranda Warnings. Any answers to post-arrest questions about the DUI are inadmissible if the officer did not provide the Miranda Warnings.

Having said all of this, the 5^th Amendment right to remain silent exists whether Miranda Warnings are given or not! A person always has a right to remain silent. During a DUI stop, drivers should unequivocally, but respectfully invoke their right to remain silent, then do so.

If you have read this blog in the past, you might be familiar with what are known as “dram shop” laws. For those who are not familiar, dram shop laws allow the victims of drunk drivers to civilly sue the establishment that served the drunk driver with alcohol prior to the victim’s injury. Although dram shop laws specifically refer to the suing of restaurants and bars, the question of whether liability, be it civil or criminal, can be placed on any third parties who contribute to a driver’s driving drunk leading to injury has been the center of much debate.

There may, however, not be much of a debate, at least in Georgia. The Georgia Supreme Court issued a ruling this week that allows a victim to sue a third party, non-drunk driver, in a DUI collision as an “active tortfeasor.”

In September of 2016, Lakenin Morris was asked by his cousin, Keith Stroud, to drive his car. Morris agreed, Stroud handed him the keys, and they were off. Both had been drinking. Morris later collided with 18-year-old Alonzo Reid, who was hospitalized. Reid sued both Morris, the driver, and Stroud, who provided the keys to Morris. Reid was awarded $23,000 in compensatory damages, to be split equally between Morris and Stroud, and $50,000 from Morris in punitive damages. The trial court, however, decline to award the $100,000 in punitive damages that Reid was asking from Stroud. The trial court concluded that punitive damages were limited to “active tortfeasors,” or, in this case, the actual drunk driver, Morris.

The Georgia Supreme Court, however, reversed the trial court’s decision by adopting a broad interpretation of the word “active tortfeasor.”

“[Georgia law] does not define the term ‘active tortfeasor,’ but from the beginning…has made a distinction between tort defendants who ‘acted’ and those who ‘failed to act.’ The text thus suggests that an ‘active tortfeasor’ is a defendant who engaged in an affirmative act of negligence or other tortious conduct, as opposed to a defendant whose negligence consist of an omission to act when he is under a legal duty to act,” wrote Justice Michael Boggs in discussing the history of Georgia’s punitive damages laws. Justice Boggs went on to say that it does not matter whether the defendant was the drunk driver, but rather whether Morris’s conduct, at least in part, caused the injury.

In other words, the Georgia Supreme Court concluded that by drinking and giving his keys to Morris, whom he knew was drunk, Stroud was an active tortfeasor who could be subject to punitive damages just as Morris, the actual drunk driver, was.

While some states, like Georgia, continue to expand the reach of their dram shop laws, some states like California remain in their determination that only the person who drove drunk can be held liable for injuries resulting from a DUI.

The California Civil Code specifically states, “It is the intent of the Legislature to…reinstate the prior judicial interpretation…that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person…[N]o social host who furnishes alcohol beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.”

Although this code section does not specifically address the situation that led to Reid’s injury, you can see California’s view on the matter. This is not to say that California affords full protection to third parties. California still holds establishments civilly liable for injuries resulting from a DUI when the establishment knowingly served alcohol to an underage drinker who drives and causes injury. Additionally, although rarely enforced, establishments can face misdemeanor charges for serving alcohol to “any habitual or common drunkard or to any obviously intoxicated person.”

Pennsylvania, which has legalized medical marijuana, has introduced a bill that would exempt medical marijuana users from the state’s arbitrary per se marijuana DUI law.

Although Pennsylvania legalized medical marijuana in 2016, with dispensaries opening up in the state in 2018, laws still remain on the books that would arbitrarily punish medical marijuana users merely for having THC in their system, even though they are no longer “high.” The new bill aims to close that loophole.

Prior to Pennsylvania’s legalization of marijuana for medical purposes, it was illegal to have any THC in a driver’s system while driving. At the time, the law did not conflict with itself because it was illegal to have any THC in the system because marijuana use, as a whole, was illegal. Thus, it did not matter whether a driver was still high or not; if they had THC in their system, it was illegal because all marijuana use was illegal.

Since the state has now legalized medical marijuana, at a minimum, those laws cannot remain on the books. Otherwise, it is possible for a legal medical marijuana to be arrested, charged, and convicted of a DUI in the state even though they haven’t smoked in days, possibly even weeks, and are perfectly sober when pulled over for that DUI.

 Unlike alcohol, the intoxicating chemical of marijuana, tetrahydrocannabinol or “THC,” can possibly stay in a person’s system for weeks. Also, unlike alcohol, THC levels do not necessarily correspond to how intoxicated or high a person is. Science suggests that when a person has a blood alcohol content of 0.08 percent, they typically are at a level of intoxication that would make it unsafe to drive. This is why it is illegal to drive while under the influence and with a 0.08 percent (0.05 in Utah). It is dangerous to society when people drive when they are under the influence, or when their blood alcohol content suggests that they are “under the influence.” No such scientific correlation exists between THC and degree of intoxication from marijuana use.

Therefore, when Pennsylvania legalized medical marijuana, it put every single user of medical marijuana at risk of an arbitrary DUI by not also updating its DUI laws. It was possible for a cancer patient to smoke marijuana on Monday, become sober by Tuesday, remain sober for the rest of the week, and then get arrested for a DUI on Sunday simply because they still had THC in their system (as a result of taking prescribed medicine for cancer!).

Pennsylvania’s new law would require police and prosecutors to prove that a medical marijuana user was actually impaired while driving rather than merely proving that the person had used marijuana sometime in the past.

“We need to ensure that the legal use of this medicine does not give rise to a criminal conviction,” state Sen. Camera Bartolotta (R), who introduced the legislation, said in a statement about her bill. “Patients fought tooth and nail for years to see the use of medical cannabis legalized to treat a variety of terrible health conditions. They should have the peace of mind to know that they will not be punished later for using their prescriptions responsibly.”

Although some states still have per se limit laws for THC, like they do with alcohol (0.08% BAC in all states except Utah where it is 0.05%), a 2019 study, published in the journal Addiction by a team of Canadian researchers, found that drivers who had 2-5 nanograms of THC per milliliter of blood (the level of some states’ per se laws) were no more likely to cause a crash than people who had not consumed marijuana.

“Given the very serious consequences of a DUI conviction, my legislation will provide critical protections for medical cannabis patients by ensuring responsible use of their legal medicine does not give rise to a criminal conviction,” said Bartolotta.

My response: It’s about time. Until states can figure out a way link THC levels (or any other quantifiable measure) with intoxication, per se laws DUI laws for marijuana usage in states that have legalized it are unconstitutional.

While some states are beginning to transition out of quarantine, other states’ lockdown orders remain intact. Regardless, some areas saw incidents of drunk driving rise precipitously during the COVID-19 lockdown. Whether it was people trying to calm their pandemic fears with some drinks or the lifted restrictions on obtaining alcohol, or perhaps a combination of both, law enforcement from across the country have reported spikes in DUI’s across the country.

Notwithstanding the impact of other socio-political current events, police are still out and looking for drunk drivers. Similarly, despite the temporary closure of courthouses, DUI prosecutions are still rolling forward, even if a little delayed.

As mentioned, restrictions have been lifted in obtaining alcohol since the closure of restaurants and bars. Establishments have been allowed to sell alcohol for pick-up, or even delivery, to their customers through phone orders or through smart phone apps like Grubhub. One would think that having more options to obtain and drink alcohol at home, would reduce the number of DUI’s. Apparently not so.

If drivers do happen to venture out, they should remember a few things.

Should a driver get pulled over on suspicion of a DUI, first and foremost, remember the 5^th Amendment exists for a reason. Drivers have the right not to say anything to law enforcement ever. Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep your mouth shut until given the opportunity to call your attorney.

At this point, it is likely that law enforcement will have the driver exit their vehicle and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.

In a last-ditch effort to obtain the evidence they need to make a DUI arrest, they’ll ask the driver to take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test, which can be either a breath or a blood test, after you have been arrested on suspicion of a DUI. The key word is “after.” Decline the optional roadside breathalyzer. Why give the officers the evidence they need to arrest you? However, if arrested, you must submit to either a breath or a blood test.

Should the stop occur at a DUI checkpoint, most of the same rules still apply. Invoke your right to remain silent. Decline to perform the field sobriety tests. Only perform the post-arrest breath or blood test, not the pre-arrest breathalyzer. This is all if a driver is not able to pull away from the checkpoint prior to arriving at it without breaking any other traffic laws, which they are legally allowed to do.

While the punishment if convicted on a first-time DUI might vary widely depending on the circumstances of each individual case, at a minimum a driver faces three to five years of probation, fines and fees in the thousands, a minimum three-month DUI course, and up to six months in jail. As part of a plea deal or a sentence if convicted, drivers can additionally face AA meetings, a longer DUI course, a MADD Victim Impact Panel, a Hospital and Morgue Program, more in fines and fees, community service, and community labor. The collateral consequences are a license suspension by the DMV and a stain on your criminal record. While most people don’t see jail time on a first-time DUI with no other aggravating factors, it is certainly a possibility. Those rather severe consequences being said, I’ll move on to my last bit of advice should a driver be pulled over on suspicion of a DUI during COVID-19.

Never forget to obtain an attorney. With so much at stake in the middle of one of the most complex processes in society, why wouldn’t a person seek the help and advice of a trained DUI attorney? If you needed a medical operation, you certainly wouldn’t perform the surgery yourself.

Even though times might be changing, taking precautions to keep the street safe as well as protecting our rights remain the same.