Expungement | Mironerlaw

California Penal Code §1203.4

DUI Expungements are more difficult than most other criminal expungements, and you need an experienced DUI attorney on your side to argue the petition effectively. The reason is because California Penal Code §1203.4, which is the law that allows for expungements, actually has a specific clause that lists vehicle code offenses that carry a heavier burden than other criminal offenses. These specific offenses are listed in California Vehicle Code §12810(a)-(e).

A criminal conviction may affect you in various ways, but it can especially impact you when applying for a University, post-graduate school, a professional license, or a job. A DUI conviction will also prevent you from ever traveling into Canada, regardless whether you have work there, or family that resides there. You must get the matter expunged pursuant to California Penal Code §1203.4, in order to clear the conviction from your record.

California Penal Code §1203.4 states, “In any case in which 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 court shall thereupon dismiss the accusations or information against the defendant.”

Eligibility

In order to be eligible for an expungement, you must satisfy certain prerequisites before you can petition the court. You can’t have any current misdemeanor/felony charges pending, you can’t be serving a sentence for any offense, or on probation for any offense. Thus, if you’d like to get an old criminal conviction expunged, you must first satisfy these requirements before you can apply. If you are currently on probation, an experienced attorney can motion the court to terminate probation early, pursuant to California Penal Code § 1203.3.

If you plead guilty/no contest or were convicted by a jury for a misdemeanor charge(s), or convicted of a felony charge(s), but were not sentenced to state prison and didn’t receive a strike, you are eligible to petition for an expungement under this code section. However, if you’re not eligible for an expungement, you may still be permitted to petition the Court for a Certificate of Rehabilitation, and apply for clemency with the Governor’s Office.

Felonies Reduced – California Penal Code § 17(b)

Certain felonies are known as “wobblers,” which means they can be filed as either a misdemeanor or a felony under the law. Other felonies are known as “straight felonies,” which means they can only be a felony. This is important because when applying for an expungement, your attorney must know when a charge is a wobbler, so that they can petition to reduce the offense to a misdemeanor pursuant to California Penal Code § 17(b), before the expungement.

If your attorney gets a wobbler charged as a felony expunged, without first getting it reduced, your right to get it reduced pursuant to 17(b) is waived. This could actually result in the individual losing their ability to get certain rights reinstated because you can’t go back and petition for a 17(b) reduction, after an expungement has been granted. This is why it’s important to get a professional attorney, with lots of experience in post-conviction work, and a proven track record of success in expungements.

Reinstatement of Constitutional Rights

An individual’s Constitutional rights are often affected by a criminal conviction. Gun ownership rights, voting rights, and the right to travel can be impacted. These rights are not automatically reinstated, upon the granting of the expungement. There is often an additional step that must be taken to get certain rights reinstated. There are also various federal laws that supersede state laws, in reinstating certain constitutional rights. It is critical to discuss your options and goals with an experienced attorney that has successfully handled hundreds of expungements, in order to fully understand how the expungement will impact you.

There are various ways to get these rights reinstated through the court after an expungement, but you must discuss it with an experienced attorney that knows what steps to take. It is also important to note that an expungement will not seal and destroy the record of the conviction or arrest. This is also a separate process, that carries a very high burden of proof under California Penal Code § 851.8. An experienced attorney can advise you on all of these topics.

Priorability – California Vehicle Code § 13555

It is also important to know that under California Vehicle Code § 13555, a DUI conviction will still be used against you for priorability purposes. This means that once the expungement is granted, it can still be used against you if you’re arrested and charged with a DUI within 10 years of the date you were arrested for your prior DUI conviction.

Furthermore, an individual must disclose the conviction if asked on an application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission. But, once expunged these disclosures can’t be held against the individual applying.

Additional Information

Most importantly, an experienced attorney with a proven track record in Expungements, knows exactly what information the court is looking for in the petition. Submitting a simple “form petition,” meaning filling out a judicial form and submitting it with a court order, is all that’s required to petition the court for an expungement. But, if that is all you submit, it is highly unlikely to get granted by the Judge.

The best way to get an expungement granted is to submit additional information that shows the progress of the petitioner. Good conduct and rehabilitation are always important to demonstrate to the court. If there is any urgent reason for the petition, that should be described as well. The Law Office of Ben Mironer does everything possible to get an expungement granted. We submit a formal motion, along with a declaration from the client (which we draft), and we ask for character reference letter to include as well. By providing the court with a fine, professional, polished packet petition for expungement, and by appearing in person for a hearing, we are able to dramatically increase the probability of getting any expungement granted.