By: Diana Aizman
A DUI, though a misdemeanor in most instances, is a serious offense that can involve different layers of penalties and consequences unlike other misdemeanor convictions. California, however, allows most misdemeanors, including DUIs, to be expunged from your criminal record.
An expungement1 of a criminal conviction is available under Penal Code § 1203.4. It allows the record of certain convictions to be deleted from public databases used by the general public, including landlords and employers, who routinely perform criminal background checks. An expungement is a desirable form of post-conviction relief since having a DUI on your record could be construed by anyone as an indication of irresponsible behavior and eliminate you from consideration for a job, a promotion or being considered for a rental unit.
It is important to note that an expungement of your DUI will not have an effect on your insurance rates with regard to your car insurance. An expungement of your criminal conviction does not seal or remove from insurance company databases your vehicle driving history and therefore does not effect the prices insurance companies will quote you for your car insurance.
Besides having your DUI conviction sealed from public view, you have the right to deny under oath and without penalty of perjury that you were not convicted of that offense. Most employment applications and residential rental agreements request criminal conviction information and will usually conduct a background check in any event but your conviction will not appear on those databases.
What it does Not Do
The expungement hides or seals your criminal record from the general public but you still have an obligation to disclose the conviction and expungement if you apply for a professional license or for public employment2. This includes applying for a court or law enforcement position or the US military and for a real estate or state bar license. An expungement, however, usually allows you to be eligible for a public or professional license (if not a felony). If you fail to disclose the conviction, your license or job application will likely be denied and you could face criminal perjury charges3.
Effect on Future Convictions
As indicated, the conviction remains on the court databases, Department of Motor Vehicles and law enforcement agencies such as the FBI and state law enforcement departments. If you are charged with a subsequent DUI within 10 years of your prior conviction, the DMV will increase your license suspension to a year or more. You also face a minimum jail sentence in most instances, an increased fine and longer participation in a DUI class. Your auto liability insurance will likely be cancelled and you will be forced to obtain an SR-22 or Certificate of Insurance that is issued for high risk drivers before reinstatement of your license.
There are certain requirements and conditions to meet before you can apply for expungement relief. Not all DUI convictions are eligible for expungement with the requisite condition being that no state prison time having been served. A DUI can be a felony offense with potentially state prison time imposed if you caused an accident resulting in serious bodily injury or death. A fourth conviction within 10 years is typically charged as a felony with a mandatory minimum 180 days of incarceration though this is served in county jail rather than state prison. You may also be sentenced to county jail if your felony DUI involved a fatality although you could be charged with vehicular manslaughter with state prison time imposed as a sentence.
Generally, you qualify once the following conditions are met:
- You completed all conditions of your sentence and probation (3 to 5 years)
- You served no time in state prison
- If you were not sentenced to probation (unlikely), you must wait one year from the date of your conviction
- You have not committed another criminal offense or have one pending
It is usually best to retain a criminal defense attorney who can complete the paperwork and filing for you. Some people attempt to file expungements on their own only to make a mistake and have to spend more money by hiring an attorney to file a motion for reconsideration to fix their mistake and then have an attorney file an expungement on their behalf. You will need the records of your conviction from the courthouse where you were found guilty or entered your guilty plea or plea of nolo contendre.
- When applying for expungement relief, we will first file a petition for dismissal.
- If needed, we can also ask the court to file a motion to grant early termination of your probation.
- If needed, submit an attachment to your petition where you can state that you have not committed any subsequence criminal offenses and have been a solid citizen in your community. Also, explain how the expungement will further your career to your own benefit and that of your family.
- We can still file the Petition for Dismissal even if you have to wait to serve the total term of your probation.
- All documents regarding the expungement will be timely served to the prosecution and probation departments to give them an opportunity to contest it as required by law.
- If granted, you will receive an Order of Dismissal.
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- Penal Code 1203.4(a)(1) – In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission. [↩]
- Krain v. Medical Board (1999) 71 Cal.App.4th 1416 [↩]
- People v. Viniegra (1982) 130 Cal.App.3d 577,587,584 [↩]