Expunge Your DUI

Offenses NOT Eligible For Expungement In California

Before you spend your time reading on, here are a list of offenses that are NOT eligible for expungement: Vehicle Code Section 42001(b) which includes sections 2800, 2801 and 2803; Penal Code Section 261(d), 286(c), 288, 288a(c), 288.5 and 289(j).

Additionally, if you were convicted of an offense that resulted in a State Prison sentence, you will similarly not be eligible for expungement, but may be eligible for a Certificate of Rehabilitation from the California Board of Prisons.

Offenses Eligible For Expungement In California

Aside from the excluded offenses above, your conviction is eligible for expungement if: 1) You were convicted of a misdemeanor and given probation: you complied fully with all of the requirements, including payment of all fines, restitution and reimbursement, and do not have any current criminal charges pending; or 2) You were convicted of a misdemeanor and not given probation, did not serve time in State Prison: it has at least a year since your conviction and you have paid all fines, restitution and reimbursement, have not been charged with any crimes and are living an honest and upright life and have obeyed all laws; 3) Were charged with a felony that was reduced to a misdemeanor and you are eligible under either 1 or 2 above.

Why Should You Apply For An Expungement?

There are several personal and professional reasons why someone would want to apply for an expungement. An expungement is not automatically granted, and will not be granted in the event that you have broken any law since you received your conviction, so the fact that your conviction is set aside proves to you and others that you have learned from your experience and have lived a law-abiding life since your conviction.

On a professional level, you can truthfully tell private employers that you have not been convicted of a crime. What’s more, California Labor Code §432.7 prevents employers from asking about any arrest that didn’t result in a conviction, inquiring about it from other sources or use it in a hiring decision.  Note that if you ever apply for a job with a public entity, or for a professional license, when asked if you were ever convicted of a crime, you will have to report “Yes, and my conviction was dismissed.” Again, the fact that your conviction was set aside will definitely reflect more favorably on your character and indicates that you have fulfilled the requirements necessary to have your conviction set aside.

Additionally, most Licensing and Certification agencies in California will not grant a license to someone who has been convicted of a crime. The same is true for Governmental jobs. However, if your conviction has been expunged, most Governmental licensing and hiring agencies (except police agencies) are required to treat you the same as if you were never convicted of the crime.

What An Expungement Can Do For You

An expungement will reflect that your conviction has been set aside. An expunged record cannot be used by private employers as a basis to deny you employment. Also, in the State of California, Government Employers (except for the police) and Licensing Agencies such as the Department of Real Estate, Board of Nursing, etc., will treat you the same as if you have never been convicted of a crime if your record has been expunged.

What An Expungement CANNOT Do For You

An expunged record can still be reviewed by a judge for the purposes of increasing your sentence if you are ever convicted of another crime in the future.  Also, an expungement does not wipe out your criminal record. Your criminal court file will not be physically destroyed, and is therefore searchable and is often discovered by private investigators and others who perform background checks. If your criminal court file is discovered, it will show that your conviction was set aside by the court. Accordingly, the Judicial Counsel of California advises that if you are asked by a private employer if you were convicted of a crime, you should answer “Yes, and the conviction was dismissed.” In the case of public employers and licensing agencies, you are required to answer that you have been convicted of a crime and that your conviction has been dismissed. Additionally, an expungement will not automatically grant you the ability to possess a firearm, nor will it restore any driving privileges that were revoked by the DMV due to the conviction. Similarly, an expungement does not restore your right to possess a firearm. Lastly, an expunged record does not relieve you of the duty to register as a sex offender if you are otherwise required to do so.

What If You Were Convicted Of A Felony?

If you were convicted of a felony and did not serve time in State Prison, you must first petition to have the felony reduced to a misdemeanor. If your petition is granted, you may then apply to have the conviction dismissed via expungement.

If your felony resulted in a State Prison sentence, you will not be eligible for an expungement; rather you may petition for a Certificate of Rehabilitation and Pardon.

Originally published here.

It sometimes happens that a person seeking to expunge a criminal record in Florida has open charges pending in another related case. Imagine, for example, that you are pulled over by a police officer for speeding. During the traffic stop, the officer discovers that your license is suspended and smells alcohol on your breath. You fail an administration of the breath test and are placed under arrest for driving under the influence (DUI). Your car is impounded and during an inventory search, a small amount of cocaine is discovered in your glove compartment. Charges are filed against you: possession of cocaine (a felony charge), plus DUI and driving with a suspended license (filed in misdemeanor traffic court).

You decide to hire a lawyer to handle your felony case and your lawyer works out a good deal with the State. Since this is your first criminal offense, you are offered a no contest plea with adjudication withheld. You accept, since your lawyer explained that having adjudication withheld means that you would be eligible to clear your criminal record. Now, you would like to begin the Florida expungement process with respect to the cocaine possession charge. However, the other charges from your arrest are still pending (recall the DUI and suspended license charge filed in misdemeanor court). Can you do it?

In Florida, the answer is no. First, you can only expunge a criminal record in Florida if charges against you have been dropped or dismissed by the prosecutor or court. When you receive a withholding of adjudication, you only may be eligible to seal your record. The main difference between record sealing and expungement is that a sealed record still exists (but the public is prevented from knowing its contents), while an expunged record is physically destroyed. However, under these circumstances you wouldn’t even be able to seal the record yet.

In a well-known case (to us Florida expungement attorneys, anyway), the Florida Department of Law Enforcement (FDLE), which is the agency responsible for determining whether you are eligible to seal or expunge a criminal record in Florida, denied the request of a juvenile seeking to seal a drug possession charge from his record under similar circumstances to the example given above. The juvenile appealed the FDLE’s decision to the courts. Florida’s Third District Court of Appeal held that the criterion set forth in Florida Statute Section 943.059(2)(d) specifically provides that an applicant is not eligible to seal or expunge a criminal record unless the applicant was not adjudicated guilty of committing any of the acts stemming from the arrest.

In layman’s terms, you cannot have any charges pending against you relating to the original arrest if you want to seal or expunge your record. All charges must be resolved before you can determine if you meet the statutory eligibility requirements. So although in our example above you received a withholding of adjudication on the cocaine possession charge, the DUI and driving with a suspended license charge remained pending, meaning you could ultimately be adjudicated guilty of either of these two charges and therefore be ineligible to seal any part of the record.

This reasoning extends to open charges in an unrelated case as well. The Florida statutes state that in order to be eligible to seal orexpunge a criminal record, you must never have been convicted of any crime, anywhere. If you have open charges, there is a chance you could be convicted on these charges and therefore would not be able to move forward with record sealing or expungement until all charges against you have been resolved.

Originally published here.

www.ImpairedDriving.ca