Category Archives: Drugged Driving
Yes, California laws give judges the authority to “revoke, modify, or change” an order for probation at any time. In some cases, a judge might also reduce a felony charge to a misdemeanor and expunge the charges from a person’s criminal record.
You must petition the court requesting early termination of probation after a DUI conviction. It is not automatic. In most cases, you want an experienced California DUI defense attorney to file a motion with the court on your behalf to have your probation terminated early.
California criminal defense lawyers understand the requirements for early termination of probation. An attorney also understands how to create a compelling argument that you deserve early termination of probation after a drunk driving conviction.
Petitioning the court is just the first step in the process. Next, you must convince the judge that your good conduct justifies an order termination probation early. Let’s discuss the process of requesting early termination of probation after a DUI in more detail.
What Is the Process to Have My Probation Terminated Early After a DUI in California?
The authority for courts to grant early termination of probation is found in Penal Code Section 1203.3 PC. Terminating your probation begins with filing a motion for early termination with the court and the prosecutor’s office. You must file the motion at least two days before a requested hearing date.
Generally, your California DUI attorney discusses your desire to end your period of probation early with the prosecutor who handled your case. Your attorney explains why you want to terminate probation early. He also explains the reasons why you deserve an early termination of probation.
The goal of discussing the matter with the prosecutor before filing the motion is to get the prosecutor’s agreement to support the motion. If the prosecutor cannot agree to support your motion, the second best thing would be for the prosecutor to agree not to oppose the motion.
At the hearing on your motion, your California DUI lawyer explains why the court should grant the motion. He argues that your good conduct and reform justify an order termination DUI probation early. The goal is to convince the judge that you are an upstanding citizen and ending your DUI probation serves the interest of justice.
The court might not require you to attend the hearing. However, attendance at your hearing to terminate probation early may be in your best interest. It shows the court that you respect the court’s time enough to show up. However, discuss this matter with your lawyer before the hearing. There could be instances where your appearance would hurt your chances of early termination of probation.
What Does the Court Consider When Deciding Whether to Grant Early Termination of DUI Probation?
Penal Code §1203.3 allows a judge to terminate DUI probation at any time during the term of probation. However, many judges only terminate probation early if you have completed at least one year of probation if convicted of a misdemeanor. In addition, for felony offenses, many judges only grant motions for early termination of probation after you have been on probation for at least 18 months.
However, the law gives judges the ability to terminate probation at any time within their discretion. Therefore, your attorney may make a case that your situation justifies earlier probation termination. The facts and circumstances of your situation and what the judge believes will serve justice dictate the outcome of your hearing.
Judges terminate probation when a person’s “good conduct and reform” justify granting the motion for early termination. Each judge must decide what qualifies as good conduct and reform. However, some things that judges consider include, but might not be limited to:
- Your criminal background
- The criminal offense that resulted in formal probation or summary probation
- Whether probation is causing undue hardship for your
- The opinion of the district attorney’s office
- The conditions of probation
When considering the terms of your probation, most judges require that you successfully complete all requirements of probation before they terminate DUI probation. That would include, but not be limited to:
- Performing required community service
- Payment of fines and assessments
- Completing the payment of restitution to victims
- Completing required counseling sessions
- Finishing court-mandated alcohol and/or drug treatment programs
- Installing and using an ignition interlock device (IID) as required by the court
- Finishing DUI school
- Attending MADD or other programs as required by the court
In other words, you need to complete each requirement and condition of probation before a judge grants an early termination. However, as stated above, there could be extenuating circumstances. You need to talk with a lawyer if you believe you deserve an early probation termination, but you have not completed all conditions of probation.
In some cases, judges consider situations of undue hardship created by being on probation for driving under the influence. For example, you cannot qualify for a student loan or a home loan because of your DUI probation. Your probation might prevent you from obtaining steady employment or qualifying for a professional license. Judges consider each case on the merits and facts specific to that case.
What Are the Benefits of Seeking Early Termination of Probation After a DUI Conviction?
Seeking early termination of DUI probation may appear to be a worthless endeavor unless the probation is causing you hardship. However, a benefit of terminating DUI probation early is avoiding the risk of violating probation.
A probation violation may occur if you are stopped for driving under the influence. Most DUI probation terms include abstaining from driving under the influence and agreement to take a roadside breathalyzer test if the police pull you over for a DUI stop.
A probation violation charge is serious. Even if you beat the new DUI charge or other criminal charges, the judge can sentence you to prison or jail for violating probation. The sentence may be up to the maximum for the DUI charge. You are not entitled to a jury trial for violating probation. Even if you are not sentenced to jail, the judge could modify the terms of your DUI probation by adding new, harsher terms and lengthening the probation term.
Another benefit of early termination of DUI probation is that you can petition the court for DUI expungement. Even though the DUI arrest remains on your record, the conviction is removed, and the court dismisses the original case. Employers, landlords, colleges, and other parties may not view a DUI dismissal as harshly as a DUI conviction.
Does the Court Expunge My DUI Conviction if It Grants Early Probation Termination?
It is possible for your DUI to be expunged when the court terminates your DUI probation early under California Penal Code §1203.4. In addition, if you were charged with a felony wobbler offense, the judge may also reduce the DUI offense to a misdemeanor.
Generally, DUI convictions can be expunged if you meet the following criteria:
- A state court heard your case and issued the conviction
- The judge did not sentence you to serve time in state prison
- You did not violate any terms of your probation
- You are not currently charged with a crime, serving time for another crime, or on probation because of another criminal conviction
- It has been one year or longer since your DUI conviction, or you completed probation
- You met all the terms of your probation and DUI sentence
When the judge grants an early termination of probation, your probation is complete. Therefore, the court should expunge your DUI conviction if you meet all other criteria.
Ask your California DUI defense lawyer about filing a motion for expungement and reduced sentence when filing a motion to terminate probation early.
What Should I Do if a Police Officer Stops Me for Driving Under the Influence in California?
You can avoid DUI probation by having drunk driving charges dismissed. A California DUI defense attorney can help you fight DUI charges.
Some important things to remember that can help your beat charges of driving under the influence include, but are not limited to:
- You are not required to take field sobriety tests or a pre-arrest breath test if you are not on probation
- California’s implied consent laws require you to take a chemical test after a DUI arrest or face losing your driving privileges and enhanced penalties for a DUI conviction
- You are not required to answer questions from the police about whether you have been drinking or where you have been
- You have the right to remain silent and have legal counsel
- There could be several DUI defenses, including lack of probable causes, chemical test inaccuracies, and police officer misconduct and errors
Contact a DUI attorney as soon as possible after an arrest. The sooner a lawyer begins working on your case, the better it is for your DUI defense.
Having a DUI arrest on your criminal record can cause problems in the future. Employers, landlords, colleges, scholarship committees, professional licensing agencies, and other people running a background check might look unfavorably upon a DUI arrest. It does not matter that you were never convicted. The mere fact that you were arrested for driving under the influence can make you appear “guilty” to some people.
The good news is that you can talk to your California DUI defense lawyer about having your DUI arrest records sealed and destroyed. California laws permit individuals to wipe away arrest records from their criminal records if they were never convicted of the crime.
That means you could get rid of records including:
- Your fingerprints
- Chemical test results
- Police reports with the details of your DUI stop and arrest
- Arrest booking photographs
- Police statements related to field sobriety tests and observations that gave them probable cause to make an arrest (i.e., you smelled of alcohol, you had slurred speech, your eyes were bloodshot, etc.)
- Rap sheet entries
Having DUI arrest records in California sealed and destroyed can significantly impact your future. Our California DUI defense attorney explains the process to seal and destroy DUI records in this article. We encourage you to reach out to us if you have additional questions or concerns.
What Are the Eligibility Requirements for Having DUI Arrest Records Sealed and Destroyed?
California Senate Bill No. 393, signed by Governor Jerry Brown on October 11, 2017, was codified in California Penal Code 851.87 PC. Under the code section, a person may petition the court to seal the arrest record as a matter of right under one of five circumstances.
You have the right to seal the records of a DUI arrest if any of the following situations apply:
- The prosecutors never filed criminal charges
- The state filed the criminal charges, but the prosecutor or the court dismissed the charges
- A jury acquitted you after a jury trial (found you not guilty of the DUI charges)
- A court vacated or overturned your DUI conviction on appeal
- You successfully completed a presentencing or pretrial diversion program
However, some exceptions to the law allowing a person to petition the court for sealing and destruction of arrest and court records exist. Fortunately, these exceptions should not impact a petition to seal and destroy records from a DUI arrest for most individuals.
Are There Exceptions to the Law for Sealing Arrest Records?
Some people are not eligible to have their arrest records sealed. Exceptions include:
- The person could not be charged with a crime because they intentionally evaded police efforts to prosecute the arrest
- The state may still charge the person with a crime under the arrest
- The person evaded efforts to prosecute the arrest through identity fraud and resulted in being charged for identity fraud
- The arrest was for murder or other crimes that do not have a statute of limitations unless a court acquitted the person or found them factually innocent of the charge upon a petition of factual innocence
The law makes an exception for sealing records as a matter of right when the criminal charges involve elder abuse, child abuse, or domestic violence. A judge would need to determine whether sealing these records serves the interests of justice.
Only individuals who were not convicted of DUI charges can petition to seal their arrest records. However, if your DUI arrest resulted in a conviction, talk with your California DUI attorney about expunging a DUI conviction.
What is the Process for Having DUI Arrest Records Sealed and Destroyed in California?
Your California DUI lawyer handles most of the work to file a petition to have your DUI arrest records sealed and destroyed. A petition to seal DUI arrest records must contain specific information required by statute. The law requires that the petition includes:
- Your name and date of birth
- The date of the DUI arrest that you want the court to seal
- The city and county where police officers arrested you for drunk driving
- The name of the law enforcement agency making the DUI arrest
- Any relevant information that identifies the arrest, such as a court number or case number
- A description of the alleged DUI offenses you were arrested under or charged with by the prosecutor’s office
- A statement that you are entitled to have your DUI arrest sealed as a matter of right or to serve the interests of justice
- If you base your petition on the interests of justice, you must include an explanation of how the interest of justice would be served if the court granted your petition to seal DUI records
After preparing the petition, your attorney takes the steps necessary to have your DUI records sealed. The general steps in the process include:
File the Petition to Seal DUI Records
File a petition to seal arrest records with the Superior Court that handled the original arrest charge if there were no criminal charges filed, the petition file the petition in the county or city where the arrest occurred.
Under Penal Code §851.8, the law imposed a two-year deadline from the arrest date or the filing of charges (whichever is later) to file a petition to seal arrest records. However, Penal Code §851.87 does not impose a deadline for filing the petition. However, it is best to file the petition as soon as possible.
Service of Process
Serve the petition on the law enforcement agency that arrested you and the prosecutor in the county or city of the arrest.
If the District Attorney objects to your petition to seal DUI arrest records, the court schedules a hearing. Depending on the county of filing, you may or may not need to appear at the hearing. Some counties only require the attorney of record to appear. However, you and your California DUI lawyer discuss the pros and cons of appearing for the hearing if the county does not require you to be present.
During the hearing, the judge examines your DUI arrest records, and any evidence why sealing the DUI records would serve the interests of justice, if applicable. The judge has broad discretion to deny or grant your petition to destroy DUI arrest records.
Because the judge could deny your petition with prejudice (you cannot file another request), hiring experienced legal counsel to handle the petition to seal drunk driving arrest records is in your best interest.
You may only have one chance to get it right. First, you need someone who understands the law and the process of sealing adult DUI arrest records. An attorney ensures that all required forms are filed with the court. The attorney carefully reviews the forms to ensure they contain complete and accurate information.
What Happens After the Court Grants the Petition to Seal DUI Arrest Records in California?
It takes about three months after filing a petition with the court for the court to issue an order sealing your DUI arrest records. Within 30 days after entering the order, the court notifies the following parties:
- The California Department of Justice
- The law enforcement agency that arrested you for driving under the influence
- The law enforcement agency that manages the master criminal history records
The agency updates your master criminal record to note that the court ordered your DUI arrest sealed. The file is no longer a matter of public records. It cannot be released to parties outside of the criminal justice system. The law enforcement agency that made the arrest updates all records, digital and physical, to note the DUI arrest was sealed by the court.
DUI arrest records are a matter of public record. If you have a DUI conviction expunged, the arrest remains on your criminal history as a dismissed case.
However, sealed DUI arrests are no longer a matter of public record. Anyone searching your criminal history will not see the drunk driving arrest. The DUI arrest is only available to you and a criminal justice agency. If your sealed DUI arrest records are released in violation of the law, the party distributing the sealed records faces a civil fine of $500 to $2,500.
You might have a civil claim against the party for compensatory damages. In addition, a court could award punitive damages if the release of your sealed DUI arrest records involved intentional or reckless conduct.
Is the Process for Sealing a Juvenile DUI Arrest Record the Same as Sealing an Adult DUI Arrest?
No, the process under Penal Code §851.87 is for sealing and destroying adult arrest records. It is a different process than the one for sealing a juvenile record.
You could be eligible to seal a juvenile DUI arrest if you:
- Are an adult OR the jurisdiction of the juvenile court ended at least five years ago;
- You have not been convicted of any crimes of moral turpitude as an adult; and,
- You do not have any pending civil litigation related to the juvenile DUI charges, such as a personal injury lawsuit from a DUI accident.
If you have questions about sealing and destroying adult or juvenile DUI arrest records, seek legal advice from an experienced drunk driving defense lawyer in California.
Being arrested for driving under the influence (DUI) in California has several short-term consequences. For example, you could spend the night in jail, and the police officer confiscates your driver’s license.
After being arrested for DUI, the California Department of Motor Vehicles (DMV) may suspend your driver’s license in an administrative hearing. A driver’s license suspension can have a ripple effect throughout many areas of your life. For example, you may be unable to get to work or take your children to school.
However, being arrested and convicted of drunk driving can have long-term consequences. The long-term consequences of a DUI can have lifelong implications. Working with a California DUI defense lawyer can help minimize the adverse effects of a DUI arrest and conviction.
Long-Term Consequences of a DUI in California
The long-term consequences of a DUI charge and conviction may include, but are not limited to:
Car Insurance Rates Increase
Most insurance companies increase auto insurance rates after a DUI charge. An insurance company views DUI convictions as a high risk. People who drive under the influence of alcohol or drugs have a higher chance of being involved in a drunk driving accident.
Therefore, your insurance premium for car insurance could increase for several years. Furthermore, an SR22 form is required when you want to reinstate your driver’s license following a DMV license revocation or suspension. You must also have SR22 if you continue driving with an ignition interlock device (IID).
An SR22 is a certificate of insurance. You must contact your insurance company to obtain the SR22 certificate. It will now know if your insurance company did not previously know about your DUI conviction. The company accesses your DMV records to determine why you need the SR22 form.
Many insurance companies do not provide SR22 coverage. Therefore, if the insurance company cancels your policy or you must find insurance with another company to obtain an SR22 form, you might be deemed a “high risk” driver. If so, you may pay a much higher insurance rate.
Eventually, you may see your car insurance rates decrease if you have a clean driving record for at least three years.
Driver’s License Suspension or Revocation
Being convicted of drunk driving may result in losing your driving privileges. Your driver’s license may be suspended for six months to a year for your first DUI conviction. However, the court could suspend your driving privileges for much longer for repeated DUIs or when there are aggravating factors.
You must apply for a new driver’s license at the end of your suspension. You must pay the fees and assessments for obtaining a new license. If your driver’s license is revoked, you cannot reinstate your driving privileges.
Being unable to drive makes it difficult to get to work. If your employer requires you to drive as part of your job, you may lose your job. In addition, your children may have trouble getting to school and extra-curricular activities.
Losing your freedom to drive means losing your freedom to attend social gatherings and run errands. Arranging for rides and public transportation after a DUI can be costly, time-consuming, and frustrating.
Installation of an Ignition Interlock Device
The court might order you to install an ignition interlock device (IID). An IID is a device that checks your blood alcohol level (BAC) before you can start your car. You must choose an IID company approved by the court.
The IID is wired to your vehicle’s ignition system. You must provide a breath sample by blowing into a valve before the engine starts. If the device detects alcohol, the car will not start. You might need to blow into the device periodically while driving to ensure you have not consumed any alcohol.
You are responsible for paying for the IID device. Installation can cost several hundred dollars. Additionally, the company charges a monthly monitoring fee. Courts may require IIDs for several years. If you want to drive, you have no choice but to pay for the device.
Employment and Professional License Suspension or Revocation
A DUI arrest may immediately jeopardize your employment. Employers may fire you for missing time from work for court hearings, community service, and jail time.
Truck drivers, delivery drivers, and other people who must drive a vehicle for their job could immediately lose their job for driving under the influence. If you drive for work, you might need to change your career because of a DUI conviction.
If you do not lose your job, you might have trouble finding employment in the future. Future employers may check your criminal record. A DUI remains on your criminal record for ten years. Felony DUIs stay on your record forever.
A drunk driving conviction could impact some professional licenses. If you hold a professional license, review the standards for revocation of your license. Even though the association does not discover your DUI immediately, it could be a problem when you apply for your license renewal.
Enhanced Penalties for Subsequent DUI Offenses
Under California law, DUIs are “priorable” offenses. Each DUI within the past ten years enhances your sentence for a current drunk driving conviction. Felony DUIs remain on your record forever.
Enhanced DUI penalties could include longer jail sentences, higher fines, mandatory IID installation, longer terms of summary probation, and longer periods of driving suspension.
Disclosure in Background Checks
In addition to employers, schools, landlords, financial institutions, and other parties may conduct background checks. A DUI shows up on your criminal background check.
A DUI could result in not receiving a scholarship or grant for college. A landlord might deny a rental application. Many companies perceive a drunk driving charge as a negative indication of your reliability and ability to make sound decisions.
Increased Life Insurance Rates
A DUI on your record could increase your premiums when you apply for life insurance. The life insurance company may view you as high risk and more costly to insure. It is similar to someone who smokes cigarettes, works in a high-risk job, or participates in high-risk activities.
International Travel Restrictions
DUIs can complicate travel to another country. Some countries bar entry for anyone who has a criminal record. For example, a DUI conviction can prevent you from entering Canada.
Damage to Personal and Professional Relationships
A DUI conviction could impact your relationships with co-workers, friends, and family members. People may perceive you differently after a DUI arrest or conviction. For example, your family members may be angry that you risked your life and the lives of others in the vehicle with you.
Some individuals experience guilt or embarrassment after a drunk driving charge. Those feelings could cause depression and isolation, negatively affecting professional and personal relationships.
End or Deny a Military Career
DUIs for active service members can be problematic. You may be punished in criminal court, but you could also receive penalties from the military. If you want to join the military, a DUI on your criminal record could be a problem.
Military personnel are held to higher standards than the general public. Therefore, driving under the influence could result in being found unfit for duty or being demoted in rank.
Issues with United States Immigration Status
Being arrested for any reason could negatively impact your immigration status. For example, being convicted of DUI in California could result in deportation. In addition, repeated DUIs might prevent you from gaining permanent U.S. citizenship.
LIability in Civil Lawsuits
Causing a DUI accident results in severe criminal penalties. In California, killing or injuring someone while driving under the influence can be punished with decades in jail and extremely high fines.
However, you may also face a civil lawsuit. The person you injured may sue you for damages. Damages for a drunk driving accident could total hundreds of thousands of dollars. If you do not have sufficient auto insurance, you could be personally liable for those damages.
How to Avoid Long-Term Consequences of a DUI in California?
Being charged with driving under the influence is not a conviction. You must plead guilty or the state must prove its case against you for a conviction. You have the right to retain a California DUI criminal defense attorney or fight the DUI charges yourself.
It is in your best interest to talk to a California DUI lawyer. A DUI lawyer understands California’s drunk driving laws. In addition, an attorney knows what the state must prove to make its case.
Your lawyer investigates the circumstances and facts of the traffic stop and DUI arrest. If law enforcement officers violate your civil rights, your attorney can file a motion to suppress evidence. Without evidence, the prosecutors may not be able to prove their case.
With an attorney’s assistance, you might receive a better plea deal. Your attorney argues the facts of the case to reduce DUI charges and penalties.
A prosecutor is more likely to work with an attorney than with you. The prosecutor takes advantage of your lack of legal knowledge when negotiating a DUI plea agreement.
If the police arrest you on DUI charges in California, do not talk to the police. You can refuse a roadside breathalyzer and the field sobriety tests without penalty in California. However, you must take a chemical test after a DUI arrest or face enhanced penalties for a DUI conviction.
As soon as possible, contact our California DUI defense lawyer to discuss the best way to fight the drunk driving charges to avoid criminal penalties and long-term consequences of a DUI.
Unfortunately, you cannot get your revoked driver’s license restored or reinstated in California. If the California Department of Motor Vehicles or the court revoked your driver’s license, you must apply for a new driver’s license.
You may not apply for a new driver’s license until the entire period of your revocation expires. Furthermore, to get a new driver’s license, you must take and pass all required DMV tests to obtain a driver’s license, including:
- Written test covering traffic laws in California
- Driving test supervised by a DMV instructor
- Vision test
You may also be required to take an alcohol/drug education course. You must also pay all applicable fees to get a new driver’s license and provide proof of insurance.
What Does Revocation of a Driver’s License Mean in California?
According to California Vehicle Code §13101, revocation of a driver’s license means that the person cannot drive legally within the State of California. The vocation applies to all motor vehicles. The person must wait until the end of the revocation period to apply for a new driver’s license.
Why is a Person’s Driver’s License Revoked in California?
There are several reasons that the California Department of Motor Vehicles revokes a person’s driver’s license. Some of the common traffic offenses that can cause a driver’s license to be revoked include, but are not limited to:
Driving Under the Influence
The Admin Per Se or administrative license suspension program began in 1990. The program was a deterrent to drunk driving. Under the Admin Per Se (APS) program, the DMV is required to revoke or suspend the driving privileges of anyone arrested for DUI or DUID who:
- Refuses to take a chemical BAC test to determine the level of alcohol or drugs in their system
- Has a .01% BAC level while driving on DUI probation, a .04% BAC level while driving a commercial vehicle, or .08% BAC level while driving a non-commercial motor vehicle
Blood or breath tests are used to determine BAC levels after a drunk driving arrest. A urine test is used as a chemical test unless the person takes an anticoagulant medication or is a hemophiliac. Urine tests are otherwise unavailable unless both a breath and blood test cannot be performed.
Road Rage Under California Vehicle Code §13210
Road rage is another common reason why a person’s driving privileges may be revoked. Under California Vehicle Code §12321, the DMV may revoke a person’s driver’s license for angry or aggressive behavior toward bicyclists, pedestrians, or other drivers.
Conduct that could result in the DMV revoking a driver’s license for road rage includes, but is not limited to:
- Verbal insults
- Threatening physical violence
- Rude gestures
- Dangerous driving intended to intimidate another driver
- Hitting another vehicle
- Acts of physical violence
- Threatening another driver with a weapon
Road rage incidents can be serious crimes. The person may be charged with other crimes under the penal code, including murder and assault. In addition, the driver could face other charges under the traffic code, including reckless driving and speeding.
Mental or Physical Disorder
A driver’s license may be revoked because the driver has a physical or mental disorder that prevents them from operating a motor vehicle safely. A DMV reexamination hearing may be requested by a friend, relative, caregiver, physician, the court, or other parties.
A driver’s license may be revoked because the person committed a crime. Criminal convictions that could result in revocation of a driver’s license include, but are not limited to:
- Vehicular manslaughter under California Penal Code §192c PC
- Committing a felony that involves using a motor vehicle
- Reckless driving that results in bodily injury to another person under Vehicle Code §23104
- Subsequent DUI convictions with a BAC of .08% or higher
- Incidents of driver’s license fraud, including criminal charges for forgery under Penal Code §470 PC
Some criminal convictions can result in permanent revocation of driving privileges, including felony assault with a deadly weapon when using a car as the weapon. Killing someone while driving under the influence results in permanent driver’s license revocation.
A DMV revocation of driving privileges lasts a specific period of time. In most cases, the DMV notifies the driver how long the driver’s license revocation period lasts. However, the DMV could revoke a person’s driver’s license for an unspecified period.
How Can You Avoid a Driver’s License Revocation in California?
You could challenge the DMV’s decision to revoke your driver’s license. However, you must file a request for an administrative hearing within ten days of receiving the revocation notice from the DMV or within 14 days of the mailing date of the notice.
DMV administrative hearings are not criminal hearings. These hearings are separate from any criminal court hearings you might have regarding criminal charges. The hearings are held at the DMV offices before a hearing officer instead of in court before a judge.
The standards of evidence and proof are less strict at a DMV hearing than they are in criminal court. However, it is important to remember that these hearings are held by an experienced DMV hearing officer trained in the procedure, evidence, and the laws applicable to the matters being heard.
You have the right to be represented by an attorney at the hearing. Most California DUI lawyers offer free consultations so that you can talk with a lawyer before the hearing about your rights.
At the hearing, you have the right to examine the evidence presented by the DMV and cross-examine any witnesses presented by the DMV, such as the law enforcement officers who made the arrest. In addition, you may testify at your hearing and present witnesses and evidence on your behalf.
Is There a Difference Between Suspending Driving Privileges and Revoking Driving Privileges in California?
When the DMV suspends your driver’s license, it puts a “hold” on your driving privileges. You are prohibited from operating a motor vehicle for a specific period. You can resume driving at the end of that period provided you have the required insurance and your driver’s license has not expired.
A revocation of a driver’s license means that the driver’s license has been canceled. Your driving privileges are not automatically reinstated at the end of the revocation. As discussed above, you must go through the entire process of obtaining a new driver’s license if you want to operate a motor vehicle in California.
Can You Expunge a DUI Conviction From Your Criminal Record to Avoid Revocation for Subsequent DUI Convictions?
California Penal Code 1203.4 PC is the expungement law in California. It allows you to expunge most DUI convictions, including misdemeanor DUI and other prior convictions.
To be eligible to petition the court for DUI expungement, you must meet the following criteria:
- A state court must have ordered your DUI conviction
- You cannot have served time in state prison
- You met all requirements of your sentence, including performing community service, paying restitution to victims, attending treatment programs, and paying fines or assessments
- You completed probation, or it has been at least one year after your DUI conviction if you were not sentenced to summary probation
- You did not violate any of the terms of your probation
- You are not currently charged with another crime, serving probation for another criminal conviction, or serving time for another crime
Even though you can expunge DUI cases so that they do not show up as criminal convictions on a background check, DUI cases remain on your DMV record. Expungement in California does not waive the fact that drunk driving convictions are “priorable” offenses.
A priorable offense counts toward sentencing for any subsequent offenses. Furthermore, expunging a DUI conviction does not shorten the period of driving suspension or revocation. You must still wait until the end of the revocation or suspension period to reinstate driving privileges.
Even though you expunged the DUI conviction, you would need to go through the same process of obtaining a new driver’s license when the revocation period ends. Additionally, any new offenses could count toward a revocation of your driving privileges again.
What Should I Do if I Am Facing a DUI Charge in California?
DUI offenses should be taken very seriously. Losing your driving privileges could result in unemployment and problems keeping a professional license. In addition to losing your driver’s license, you face substantial fines, jail time, summary probation, DUI school, and other penalties. Depending on the circumstances of the DUI arrest, you could spend years in prison for driving under the influence.
However, you could have several defenses to the DUI charges. A California DUI defense lawyer examines the circumstances of your DUI arrest to determine if the law enforcement officers violated your civil rights. Your attorney also explores other DUI defenses that could result in the charges being dismissed or reduced.
In the event that you cannot avoid a DUI conviction, your attorney negotiates with the prosecutor to get the best possible terms for a plea deal. Negotiating a plea deal or pleading guilty to DUI charges without a lawyer could result in harsher penalties than is necessary for your case.
Drunk driving convictions are priorable offenses in California. A priorable offense means that the prior conviction enhances the penalties for another conviction. Therefore, any prior DUI convictions on your record result in harsher punishments for subsequent drunk driving convictions.
Being charged with driving under the influence while on probation for a DUI conviction is treated severely by California courts. Punishments for drunk driving are intended to deter individuals from repeating the same conduct. If you violate DUI probation by driving under the influence again, your prior DUI affects the new offense, and you also face the consequences for violating DUI probation.
Unfortunately, violations of DUI probation are common. The best thing you can do for yourself is contact an experienced California DUI defense lawyer.
How Does the 2nd DUI Affect Your Current DUI Probation?
For a first-time DUI conviction, judges may grant three to five years of summary (informal) probation. The terms of probation vary, but they often include:
- Agreeing not to drive a motor vehicle with any measurable amount of blood alcohol in your system during the probationary period
- Agreeing to submit to a DUI blood test or DUI breath test if arrested for suspicion of driving under the influence
- Paying fines and assessments
- Completing DUI school
- Attending an alcohol and/or drug treatment program
- Community service
- Agreeing to drug and alcohol testing
- Suspension of driving privileges or mandatory installation of an ignition interlock device (IID)
Breaking any of the rules of probation could result in penalties for the probation violation. As noted, most probation terms include an agreement not to drive with any measurable alcohol in your system. Therefore, driving after just a couple of drinks could result in a probation violation.
What Are the Consequences of a Second DUI on Probation for a First DUI Conviction?
You could be convicted of violating probation even if you are not convicted of drunk driving because you do not have to be over the legal limit to violate probation. For example, merely driving under the influence of alcohol is sufficient to charge you with violation of probation. Likewise, refusing a chemical test is sufficient to make an arrest for a DUI probation violation.
Violating DUI probation is a separate criminal offense. After your arrest, the court schedules a probation violation hearing. At the hearing, the prosecution presents evidence that you violated the terms of DUI probation by driving under the influence of alcohol or drugs. Evidence may include the testimony of the police officer, results from field sobriety tests, and blood alcohol chemical test results.
The burden of proof during a probation violation hearing is less than the burden of proof at a DUI trial. The prosecutor only needs to prove you violated the terms of probation by a preponderance of the evidence.
A preponderance of the evidence means that the allegations against you are more likely to be true than not true. In other words, there is a more than a 50% chance you violated the terms of probation. However, during a DUI trial, the prosecution must prove its case beyond a reasonable doubt.
The judge is not ruling on whether you were driving under the influence or driving with a BAC over the legal limit. That decision occurs at the hearing for your second DUI charge. At this hearing, the judge only determines whether you violated the terms of probation.
If you did not violate the terms of DUI probation, nothing happens. Instead, you continue with your probation period as if the hearing did not occur.
However, if the judge finds that you violated the terms of DUI probation, the judge can take one of three actions:
- Revoke summary probation
- Modify the terms of your summary probation to make them stricter
- Reinstate summary probation with the same conditions and terms
If the judge revokes summary probation, you must serve your full jail or prison sentence for the first DUI conviction. Your second DUI offense proceeds and is impacted by the first DUI conviction, but not by the outcome of a probation violation hearing.
How Does DUI Probation Affect a Second DUI Offense?
The DUI probation does not impact the sentencing for a second DUI offense. However, having a prior DUI conviction on your record enhances the sentence for the second DUI offense.
Generally, the penalties for a misdemeanor first-time DUI offense include:
- Assessments and fines up to $1,000
- Up to six months in jail (may qualify for work furlough or work release)
- Loss of driving privileges for six months
- Installation of an ignition interlock device for six months
- Attending DUI school for three months
- Three to five years of summary (informal) probation
You may or may not receive all of the above penalties or the maximum penalties. A California DUI attorney can argue for lower sentences based on the facts of the case.
However, a second misdemeanor DUI conviction within ten years carries more severe penalties. The potential penalties for a second-time DUI conviction include:
- Assessments and fines up to $2,000
- Up to one year in jail, with a minimum jail sentence of 96 hours
- Three to five years of summary probation
- 18 to 30 months attendance at a court-approved DUI school
- Installation of an ignition interlock device (IID) for up to a year
- Loss of driving privileges for two years (may apply for a restricted license after one year)
The same terms of probation generally apply to the second DUI conviction. Additionally, the judge may order the person to attend a drug and alcohol treatment program, pay restitution if the DUI involved an accident, and participate in Alcoholics Anonymous, Narcotics Anonymous, or a Mothers Against Drunk Driving victim impact panel.
What Are My Choices if I Get a Second DUI While on Probation for Driving Under the Influence?
You can plead guilty or no contest to the DUI charges and accept the court’s sentence. Alternatively, you can enter a plea agreement with the prosecution. However, since this is your second DUI conviction, the plea agreement’s terms may not be as favorable. A California DUI lawyer can help you negotiate the best terms.
On the other hand, you may plead not guilty and decide to fight the DUI charges. Your attorney investigates the circumstances of your drunk driving arrest. In some cases, police misconduct could result in a motion to suppress evidence. The evidence against you could be thrown out if you win at the motion hearing, making it very difficult for the prosecution to win the case.
A DUI lawyer may challenge the results of a breathalyzer or chemical test. Your BAC level may have been elevated because of your diet, a health condition, or malfunctioning machine. In some cases, the lab technician or police officer could have made a mistake collecting or testing the sample.
Even if you cannot win the case at trial, having a California DUI defense attorney investigate the case can help during plea negotiations. Your attorney may uncover weaknesses in the prosecution’s case or evidence that would be favorable to you during a trial. Your lawyer uses this information to negotiate terms of a plea bargain that are more favorable than the sentence you would receive if you plead guilty in open court.
A plea agreement may include reduced charges that would not count against you for future DUI convictions. It could also include no jail time or less jail time with reduced fines. The terms of the plea agreement depend on the facts of your case.
Prosecutors are often more willing to negotiate better terms with a criminal defense lawyer than with a person representing themselves. The prosecutor knows most people are unfamiliar with DUI laws and court procedures. However, the prosecutor cannot take advantage of an experienced DUI attorney who is willing to go to court to protect the client’s best interest.
The best way to avoid a probation violation is to avoid driving after consuming any amount of alcohol. Also, talk to your DUI lawyer for the first case. Ensure you understand all the terms of your DUI probation. Some people violate probation because they are not clear on the terms of probation. Understanding what probation entails can help you avoid violating DUI probation.
As soon as possible after a DUI arrest, contact a California DUI defense lawyer. An attorney advises you about your legal rights and the things to avoid doing that could hurt your chance of beating the DUI charges. Your attorney also helps you through the probation violation hearing and deals with the new drunk driving charges.