Can DUI’s be Expunged?

Can a DUI Be Expunged?

Answer: Under penal code section 1203.4 you can petition the court to retroactively dismiss a DUI case after you have completed probation. This is what is often referred to as expungement and it is a great tool for cleaning your record especially for the purposes of gaining employment. However, even if the motion is granted and the case is dismissed, should you be charged with a DUI again within a 10 year period, the prior DUI will still be used against you for purposes of sentencing. So, in that sense it is not as if an expungement makes it as though the conviction never happened for all purposes. DUI’s are prior able, meaning subsequent DUI’s will be used against your for sentencing for up to 10 years.

Question: Does Expunging a DUI clean it from my DMV driving record?

Answer: Unfortunately not. An expungement serves to dismiss a case retroactively thereby making you more competitive for employment etc. but an expungement does not change your driving record with the DMV. For more information on expungements, please refer to the following link: Expungements

10 Year Driver’s License Revocation For 3 or More DUI’s Within 10 Years

On January 1, 2012 California Vehicle Code Section 3597 became law. This Vehicle Code Section reads as follows:

“3597. (a) Notwithstanding Sections 13202.5, 13203, and 13352, a court may order a 10-year revocation of the driver’s license of a person who has been convicted of three or more separate violations of Section 23152 or 23153, the last of which is punishable under Section 23546, 23550, 23550.5, or 23566. When making this order, the court shall consider all of the following:

(1) The person’s level of remorse for the acts.
(2) The period of time that has elapsed since the person’s previous convictions.
(3) The person’s blood-alcohol level at the time of the violation.
(4) The person’s participation in an alcohol treatment program.
(5) The person’s risk to traffic or public safety.
(6) The person’s ability to install a certified ignition interlock device in each motor vehicle that he or she owns or operates.
(b) Upon receipt of a duly certified abstract of the record of the court showing the court has ordered a 10-year revocation of a driver’s license pursuant to this section, the department shall revoke the person’s driver’s license for 10 years, except as provided in
subdivision (c).”

10 Year Driver’s License Revocation Defense

As described above, this relatively new law gives judges the power to use their discretion to suspend the driving privilege of third-time DUI offenders for up to 10 years. This is an enormous suspension and as many people have learned the hard way, such a suspension can have disastrous personal consequences especially in a state like California where we all drive to get around and where public transportation is limited to a few metropolitan areas.

Six Factors To Be Considered by The Judge in Deciding on a Possible 10 Year Suspension

Vehicle code section 3597 (a) lays out six explicit factors that may be considered by a judge in order to determine if a license suspension of up to 10 years is appropriate.

Factor #1: The defendant’s level of remorse for the acts. This is an interesting factor as it calls for judges to make a subjective determination of the level of remorse a defendant has. This factor puts the burden on defense attorneys defending individuals charged with Three or more DUI’s to effectively convey to the court that their client is, in fact, contrite.

Factor #2: The period of time that has elapsed since the individual’s last conviction. This factor is relatively straight forward, and gets at the likelihood that someone being charged with a DUI has a serious drinking problem. If someone is on their third DUI prosecution within 10 years and the last DUI was only a year or two ago, this suggests to a judge that the defendant is either not learning or that their drinking problem is beyond their control. On the other hand, if you have made it 8 or 9 years since your past DUI, it is more possible that you are just unlucky, and consequently you are less likely to be given a 10 year license suspension.

Factor #3: The BAC at the time of the violation. This is yet another factor that directs judges to inquire as to the seriousness of the alcohol problem, and thus the likelihood of driving while intoxicated in the future if this individual is allowed to keep driving. The lower your blood alcohol level at the time of your violation, the less likely the judge will rip away your license for a decade. On the other hand, if your BAC is 0.20 or higher, you run a greater risk of long-term license suspension.

Factor #4: The person’s participation in an alcohol treatment program If you are facing a third DUI you will want to begin attending AA meetings immediately at a rate or at least one per week and maybe more. In addition, get signed up for a repeat offender alcohol class. Doing these things will indicate to the judge that your are taking steps to remedy your problem and hopefully lead the judge to be more merciful when determining the fate of your driver’s license.

Factor #5: The Person’s risk to traffic or public safety. Let’s face it, not all DUI’s are the same. If your DUI comes about by an officer catching you moving your car 2 feet while intoxicated (a technical DUI) or you are pulled over on the 5 freeway going 85 MPH while intoxicated the judge is going to view things very differently. If you were stopped while speeding or driving near pedestrians, you are more likely to get the massive 10 year suspension, than if you were on an old farm road, or simply moving your car a few feet.

Factor #6: The Person’s ability to get an ignition interlock device installed The state’s primary concern with repeat DUI offenders is that the pattern suggests they will continue to drive while intoxicated, even after being punished, and that this is likely to lead to an injury or death at some point. The courts have come to place a great deal of value on ignition interlock devices as a way to keep people from driving while intoxicated. Consequently, getting an ignition interlock device installed on your car is one of the very best ways to be able to keep your license after a third DUI within 10 years.

The Way Out!

Here is the good news. Vehicle Code Section 3597S(c) says:

(c) (1) Five years from the date of the last conviction of a violation of Section 23152 or 23153, a person whose license was revoked pursuant to subdivision (a) may apply to the department to have his or her privilege to operate a motor vehicle reinstated, subject to the condition that the person submits the “Verification of Installation” form described in paragraph (2) of subdivision (h) of Section 13386 and agrees to maintain the ignition interlock device as required under subdivision (g) of Section 23575. Notwithstanding Chapter 5 (commencing with Section 23700) or subdivision (f) of Section 23575, the ignition interlock device shall remain on the person’s motor vehicle for two years following the reinstatement of the person’s driving privilege pursuant to this section.

DUI Defense Based on Bad Traffic Stops Takes a Hit From The Supreme Court

As a criminal defense attorney, and a DUI lawyer, you are always concerned about case law that cuts away at the the protections afforded us under the 4th Amendment of the United States Constitution. By way of review, the 4th Amendment protects individuals from unreasonable searches and seizures of themselves or their property. Any time a police officer makes a traffic stop, the stop must be reasonable otherwise it is a violation of your 4th Amendment rights. This is where the concept of probable cause comes in. If an officer has probable cause to believe a violation of the law has occurred then he has a reasonable basis to stop you for a reasonable amount of time.

Supreme Court Allows for Traffic Stops Based on Mistaken Understanding of the Law, if Reasonable

This week the Supreme Court ruled on a case called Heien v. North Carolina. In this case a car was pulled over for having a broken tail light. In the course of the stop the police officer becomes suspicious due to the behavior of the occupants of the car and asked for consent to search the car. Upon searching the vehicle the police officer found cocaine and arrested the defendant. The defendant filed suppression motion arguing that the officer did not have probable cause to stop him as it is not a violation of the law in North Carolina to have one brake light that does not work. The Suppression motion was denied by the trial court. Later the case was appealed and the appeals court reversed the trial court based on the fact that the North Carolina state law only requires one working brake lamp.

This week the Supreme Court reversed the Appellate court. The Supreme Court held that while the officer was mistaken about the North Carolina law when he pulled the car over, that because his mistake was reasonable, that the stop was valid. The court reiterated that the 4th Amendment only calls for reasonableness not perfection, and that under these circumstances, the mistaken understanding of North Carolina law was nonetheless reasonable.

Application of This Ruling on Sacramento Criminal and DUI Cases

This case is somewhat concerning from a criminal defense standpoint in that it seems to enlarge the grounds upon which an officer can stop you, to include violations which do not actually exist, so long as the officer’s stop seemed to be based on a reasonable belief that his basis for the stop was based on an actual California Vehicle Code statute.

On the other hand, this ruling seems consistent with the Mistake of Fact Defense available in which someone commits a crime with the reasonable, but mistaken, belief that what they were doing was not illegal. This defense is comforting in that it demonstrates that the law is sensitive to one’s intent when they act. So, under that analysis this new ruling does at least seem to be based on consistent logic.
I guess the overriding concern is that the 4th Amendment get increasingly limited over time, and we move closer and closer to a police state in which law enforcement can do what they please.

Sacramento is buzzing over prop 47

It seems like I cannot go anywhere around town lately without hearing about Prop 47. (for those who do not know, proposition 47 was a law passed in November 2014, in which California Voters voted to have several formerly felony charges be reduced to misdemeanors, and to allow people who had previously been sentenced to these felonies, be re-sentened. The result has been, and will be, thousands of people state wide being released early from jail and prison.) Depending on who you talk to you get different responses to proposition 47. Of course, if you talk to a district attorney or law enforcement officer, many of them feel that proposition 47 is just horrible. On the other hand, people who have been convicted of the crimes listed in proposition 47 (Possession of a controlled substance, burglary, petty theft with a prior, receiving stollen property, grand theft, just to name a few) and their loved ones, are thrilled at the prospect of having the charges reduced to misdemeanors and in many instances be re-sentenced to a misdemeanor appropriate sentence.
Prop 47 = Less Crowded Jails (at least temporarily)

Our law office has already had clients who were in jail released much earlier than we had expected, as a result of prop 47. There is no doubt in my mind that prop 47 will serve to reduce the crowding in the Sacramento County jails, as well as prisons around the state. Despite the horror stories you may hear, most of the people who are benefiting from proposition 47 are no danger to anyone, and thus there is little risk and much tax payer revenue to be saved. On the other hand, if you are worried about “dangerous” people being out on the streets, consider this, if more jail beds are opened up, this makes room for people who might be truly dangerous.

• Proposition 47 Results in Sacramento Inmates Being Released from Jail
• How to Utilize Prop 47 in Sacramento

If you believe prop 47 may apply to you should first do some research to make sure you know exactly what charges you (or your loved one) were convicted of, as Prop 47 is very specific as to what charges are covered. Once you have this information, contact an attorney who is knowledgable about proposition 47. With that information a knowledgeable attorney will be able to guide you as to the nest move. If the sentence is completed, then a reduction to a misdemeanor will be appropriate. If the sentence is still being served, then a motion to re-sentence will be required.