Category Archives: Drugged Driving
If a police officer believes you are driving under the influence of marijuana, you could be arrested for DUI. The police officer might believe that you were also smoking marijuana. However, the police officer would need probable cause for a DUI arrest.
In the alternative, if the police officer does not believe you are impaired by marijuana, he could still charge you with having an open container of marijuana in your vehicle.
Driving While Possessing an Open Container of Marijuana
California Vehicle Code §23222 prohibits someone from driving with an open container of marijuana in the vehicle. It also applies to marijuana that is not in a container. Therefore, the best place for you to transport marijuana is in the truck of your vehicle.
A violation of CVC §23222 is a traffic infraction. You can be fined $100 for driving while possessing an open container of marijuana.
Are There Defenses to Having Marijuana in Your Vehicle?
Yes, there are several defenses a California DUI lawyer could argue. Potential defenses to the charge include:
- You are a qualified patient or have an identification card that allows you to possess marijuana legally
- You were driving on a private road instead of a highway or public road
- The open container or loose cannabis flower is in the truck of the vehicle
- The police officer lacked probable cause for a traffic stop
Having an open container of marijuana in your vehicle can lead to DUID investigation.
Driving Under the Influence of Marijuana in California
DUI of marijuana is a serious criminal charge in California. It carries the same penalties as an alcohol DUI. A conviction results in a criminal record.
However, there is no “legal limit” for marijuana DUI in California. Some states have per se limits for DUID of marijuana. However, California does not set a legal limit for DUI of marijuana because there is no consensus for the amount of marijuana necessary to impair driving.
Instead, the Vehicle Code states it is unlawful for someone to drive a vehicle “under the influence” of any drug. Under the influence refers to an impairment that prevents a person from performing an activity safely. Generally, driving under the influence is defined as being unable to operate a motor vehicle with the same level of care as a reasonably sober driver.
How Do You Prove Someone is Under the Influence of Marijuana?
Under California’s implied consent laws, drivers must submit to chemical tests after a DUI arrest. Refusal of a chemical test results in an automatic one-year driver’s license suspension. A chemical test refusal results in a two-year revocation of driving privileges if you have a prior DUI conviction within ten years.
Police officers may ask you to take a preliminary screening test during a DUI stop. They may ask you to take a breathalyzer test or a saliva swab test. Until the police officer places you under arrest for DUI, you can refuse a preliminary screening test without penalty. That includes the standardized field sobriety tests (FSTs).
Therefore, the police officer must rely on observations of your behavior and driving to determine if you are under the influence of marijuana, alcohol, or another drug. The police officer might testify that your driving was erratic. For example, you were weaving between lanes, failing to use turn signals, driving too slowly, stopping for green lights, or making sudden stops.
The police officer might also report signs of drug use such as:
- Red eyes
- Dry mouth (“cotton mouth”)
- Problems with balance and coordination
- Slow reaction time
- Increased heart rate
- Paranoia, panic, and hallucinations
- Rapid breathing
Poor performance on field sobriety tests is often cited as probable cause for a DUID arrest. Also, the officer might claim to smell marijuana on your body or in the vehicle as other evidence of probable cause.
California also has Drug Recognition Experts (DREs) trained to spot signs of drug use. Police officers with DRE training receive instruction in various subjects, including signs and symptomatology of drugs and courtroom testimony.
It is important to note that having marijuana in your system is not conclusive evidence of impairment. Therefore, a California DUI defense attorney can challenge the charges by arguing there is not sufficient evidence to prove the marijuana in your system impaired your driving ability.
Driving Under the Influence of Medical Marijuana
You might be able to get out of a traffic infraction for an open container of marijuana if you are a qualified patient. However, you can be charged with driving under the influence even though you have a valid prescription for medical marijuana.
The law makes it illegal to drive under the influence of any drug. Therefore, you could be charged with DUID for driving under the influence of over-the-counter medication if that medication impairs your driving ability. Arguing that you have medical marijuana in your system will not avoid a DUID of marijuana conviction if the prosecution proves the medical marijuana impaired your ability to drive.
What Are the Penalties for Driving Under the Influence of Marijuana in California?
Most DUI marijuana charges are misdemeanors. They carry the same penalties as an alcohol DUI. Therefore, a first-time DUI marijuana conviction may result in:
- Between 96 hours and six months in county jail
- Losing your driver’s license for six months
- A fine between $390 and $1,000
- Participation in a drug education or DUI class for three months
- Summary (informal) probation from three to five years
Marijuana DUI convictions are priorable offenses. Subsequent DUID convictions result in harsher penalties, including mandatory minimum jail sentences.
DUI of marijuana is a wobbler offense. The prosecutor may charge you with a felony. Situations that could result in felony DUI marijuana charges include:
- Having a prior felony DUI conviction on your criminal record
- Causing serious bodily injury or death while driving under the influence of marijuana
- This DUI charge is your fourth DUI, wet reckless, or DUID conviction within ten years
The penalties for a felony DUI marijuana conviction increase substantially. Potential punishments for a felony marijuana DUI conviction include:
- A fine of up to $5,000
- 180 days in county jail
- Probation for up to five years
- Loss of driving privileges for four years
- An 18-month drug education class
- Payment of restitution to accident victims
If you refused a chemical test after your DUI arrest, you have two days added to your jail sentence if the court finds you guilty of DUI marijuana. Also, your driver’s license is suspended for one year, and you must attend nine months of DUI school instead of three months.
Can You Expunge a DUI of Marijuana Conviction in California?
Yes, DUID convictions under California Vehicle Code §23152(f) are eligible for expungement in most cases. Expunging your DUI marijuana convictions means you can say that you have never been convicted of that offense. While the DUI arrest may remain on your criminal record, the court removes the conviction and dismisses the case.
To be eligible for a DUID expungement, you would need to meet the following criteria:
- A state court heard your case and decided your sentence
- You did not serve any time in state prison
- You completed probation, or it has been at least one year since your DUID conviction
- You did not violate the terms of probation
- All terms of probation are complete, including paying fines, attending treatment programs, community service, etc.
- You are not currently on probation, serving time, or charged with another crime
Felony DUI marijuana convictions might qualify for expungement if you did not serve time in state prison. However, you can avoid the need to expunge a marijuana DUI conviction by fighting the DUID charges with the help of a California DUI defense lawyer.
Potential Defenses to DUI of Marijuana Charges
Your attorney analyzes your case to determine the best DUI defense strategy for your situation. Potential DUI marijuana defenses include:
You Were Not Impaired
Having marijuana in your system does not mean your driving abilities were impaired. There must be sufficient evidence showing that having marijuana in your system impaired your driving.
Because marijuana can remain in your system for hours, days, or weeks, your attorney may argue that other factors were responsible for the “signs of impairment” noted by the police officers.
Lack of Probable Cause
The police officer must have probate cause for the DUI stop and DUID arrest. If not, your attorney can file a motion to suppress the evidence from the traffic stop. Without evidence, the prosecution cannot prove you were driving under the influence of marijuana.
Flawed or Inaccurate Chemical Tests
The chemical tests performed by law enforcement could be flawed or inaccurate because they used contaminated samples or fermented blood. In addition, the police officers or the lab may have mishandled the samples or failed to keep the chain of evidence.
There could be other defenses to driving under the influence of marijuana. Seeking legal counsel is in your best interest. Accepting a plea deal without a California DUI defense attorney could mean you are punished unnecessarily.
Yes, the judge’s decision regarding a motion to suppress can be challenged. The prosecution can challenge a ruling that favors the defendant immediately. In other words, if the judge rules specific evidence is inadmissible and the case may be dismissed because the evidence cannot be used at trial, the prosecution can file an immediate appeal.
However, if a defendant loses a motion to suppress evidence, the defendant generally has to wait until after the trial and verdict. If the defendant is found guilty, the defendant may appeal. A matter for appeal would be whether the court erred in denying the motion to suppress and allow the evidence to be used at trial.
When Are Motions to Suppress Filed in Criminal Cases?
A motion to suppress evidence is a pretrial motion in criminal cases. The defendant files the motions before the trial begins to ask the judge to prohibit evidence obtained through an illegal search or seizure from being used at trial. The court may hear a motion to suppress evidence at a preliminary hearing or pretrial hearing.
Suppression Motions Filed Under California Penal Code §1538.5
California Penal Code §1538.5 states that a defendant may file a motion to suppress evidence on the following grounds:
- A warrantless search or seizure was unreasonable; OR,
- The police officers had a search warrant, but the warrant:
- Was insufficient
- The police seized property or evidence not described in the warrant
- Lack of probable cause for issuing the warrant
- Law enforcement performed the search in a way that violated the United States Constitution or the California Constitution
- Other violations of state or federal constitutional standards
At the suppression hearing, the prosecution and defense lawyer argue matters of law and how they apply to the motion to suppress evidence. The court may hear witness testimony and oral arguments or written memorandums from the parties. The parties may cross-examine each witness.
Typically, judges may take up to 30 days after a hearing to consider motions to suppress evidence in DUI cases. The judge may require the defense attorney and prosecution to file memorandums of law. It could take longer than 30 days to receive a decision. The attorneys must have time to conduct further legal research into relevant case law and statutes before preparing their memorandums.
The court may find any evidence illegally obtained inadmissible. There is no evidence that is exempt from a motion to suppress evidence.
How Can a Motion to Suppress Evidence Help in My California DUI Case?
The motion to suppress can result in crucial evidence being inadmissible. Without that evidence, the prosecution may not be able to prove you were driving under the influence of alcohol or drugs.
For example, after filing a motion, the court finds that the police officers obtained a warrant for a blood draw without probable cause. Therefore, the chemical test results are inadmissible.
Without the blood test results, the prosecution cannot prove per se DUI charges. In other words, the prosecutor has no way of proving your blood alcohol content (BAC) exceeds the legal limit. The legal limit for BAC in California is:
- .08% or higher for drivers 21 years of age or older
- .01% or higher for drivers under 21 years of age
- .01% or higher for anyone driver on DUI probation
- .04% or higher for a driver operating a motor vehicle that requires a commercial driver’s license (CDL)
- .04% or higher if a passenger for hire is in the vehicle at the time of the DUI offense
Therefore, the prosecutor must prove that you were operating a motor vehicle under the influence of alcohol or drugs under California Vehicle Code §23152(b). It could be much harder to prove impaired driving without chemical tests or other evidence suppressed by the judge.
Another way a motion to suppress evidence can help in your drunk driving case is during plea agreement negotiations. A prosecutor who cannot present all evidence during a trial might be more willing to negotiate favorable terms for a plea bargain.
The best result of a motion to suppress evidence in a DUI case is the dismissal of the drunk driving charges. A California DUI defense lawyer carefully analyzes all evidence and the circumstances of your DUI arrest. Then, if law enforcement officers violated your rights, the criminal defense attorney files the motion to suppress the evidence as soon as possible.
What Types of Evidence Can a Judge Suppress in a DUI Case?
Evidence that could be suppressed in a drunk driving case includes, but is not limited to:
- The results of field sobriety tests (FSTs)
- Breath results from a roadside breathalyzer
- Observations by police officers during a DUI stop
- Eyewitness testimony from other individuals
- Video from dash cams, traffic cameras, and other sources
- Statements made by you during the traffic stop or DUI arrest
- Physical evidence obtained during a search of your vehicle or person
- Results of chemical tests for BAC levels or drugs, including breath, blood, and urine tests
- Evidence gathered a DUI checkpoint
When the judge rules evidence inadmissible, the jurors never know about the evidence. So, for example, if the judge throws out the BAC results from a urine test, the jurors never know that you had a BAC of .10% when officers arrested you for driving under the influence.
Who Has the Burden of Proving Evidence is Admissible at Trial?
Even though the defendant files a motion to suppress evidence, the prosecution must prove that a warrantless search and seizure was reasonable. However, if the police officers obtained a warrant, the defendant has the burden of proving the warrant was not legal.
Do not assume that the police officers did their job correctly and the evidence gathered is admissible in court. Police officers routinely make mistakes and violate civil rights. A person may be unaware that the police did anything wrong.
Therefore, talk to an experienced California DUI defense attorney as soon as possible. A lawyer reviews your case to determine DUI defenses. A potential defense to drunk driving is illegally gathered evidence. However, other DUI defenses could help you beat driving under the influence charges in California.
Common DUI Defenses Used in California Drunk Driving Cases
There are many defense strategies a California DUI lawyer can use to challenge drunk driving charges. However, four of the most common defenses used in DUI cases include:
Lack of Probable Cause
The police officers must have a reasonable basis for a traffic stop. For example, the driver violated a traffic law, or the officer witnessed driving behavior associated with impaired driving. The police officer must also have probable cause for the DUI arrest.
A lack of probable cause could result in evidence being inadmissible in court. The police officer must justify the search and seizure without a warrant for evidence to be used against the driver.
Inaccuracy of Field Sobriety Tests
Police officers observe a person’s performance on field sobriety tests for signs of impairment. However, FSTs can be unreliable. Many factors could result in inaccurate findings.
For example, a driver’s health conditions could make it difficult to perform the tests. Bright lights from oncoming traffic and uneven surfaces can result in inaccurate results. If a police officer provides confusing or incorrect instructions to perform the test, the driver might make mistakes that make them appear intoxicated.
Lack of Evidence of Impairment
The prosecution has the burden of proving your alcohol or drugs impaired your driving ability at the time of your DUI arrest. Without a chemical test results of a BAC level at .08 or above, the prosecution might base their case on the police officer’s observations.
Your California DUI attorney challenges the officer’s observations. For example, the attorney might request copies of the officer’s employment record and review other DUI cases to gather information to use in court when cross-examining the officer.
Challenges to BAC Tests
BAC tests include pre-arrest tests and post-DUI arrest tests. You can refuse to take a roadside breath test or saliva test without penalty. However, after an arrest for drunk driving, you are presumed to have consented to a chemical test for BAC under California’s implied consent laws. Refusing a chemical test after a DUI arrest results in automatic driver’s license suspension.
Your CA DUI attorney may challenge the accuracy of chemical tests on several grounds including:
- You have a medical condition that affects the results of a chemical test
- The lab used fermented blood or contaminated samples
- The lab or law enforcement officers improperly collected or stored blood or urine samples
- A breathalyzer machine malfunctioned, was not calibrated correctly, or was not maintained
- A police officer administered a breath test incorrectly
- Mouth alcohol caused a high false BAC level because of dental work, GERD, heartburn, acid reflux, or burping
- Ketosis because of diabetes of low-carb diets caused a falsely high BAC level
Do not give up before you start fighting. Make the prosecution prove its case by fighting DUI charges with the help of a California DUI defense lawyer. A DUI conviction results in a criminal record, which could have long-term consequences in several areas of your life. Do not plead guilty to DUI charges without seeking legal advice.
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.