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EXPUNGING A DUI ON YOUR CRIMINAL RECORD

 

While most DUI convictions are misdemeanors, the conviction is entered on the offender’s California Department of Justice (DOJ) criminal history (often referred to as a “Rap Sheet”). This conviction remains on the individual’s rap sheet forever unless a successful petition for dismissal is brought forward. The petition for dismissal, filed under Penal Code section 1203.4, is often referred to as an “expungement” although the dismissal is not a true and complete expungement. (More about that below.)

If you have been previously convicted on a misdemeanor DUI offense (or even a felony DUI offense in many cases) and you have completed your sentence, you should file a petition for dismissal of the conviction. As discussed below, the imperative to do so is even greater now that the “Clean Slate Act” is set to go into effect on January 1, 2021.

First about the petition: Anyone who has been convicted of a misdemeanor (and some felonies) is eligible to petition the court to dismiss and set aside the conviction after completion of sentence. The right to have the petition granted is automatic for the individual who has successfully completed his or her sentence, i.e., without any violations of probation or subsequent arrests or convictions. For those who violated their sentence—usually this is a violation of a term of probation—the petition can still be filed and depending on the circumstances, the petition may be granted.  Once the conviction is expunged, the DOJ rap sheet shows the conviction is dismissed. After a DUI conviction is expunged, the conviction need not ever be disclosed on an employment application (with exceptions for certain positions such as a police officer) or on a housing application.

However, there are caveats: The expungement does not dismiss the conviction on the individual’s DMV record and it can still be counted as a pervious DUI conviction within the last ten years for purposes of sentencing on any subsequent DUI. Furthermore, the federal government does not recognize state expungements, so the DUI will likely remain on your FBI report. However, this may only become an issue if you are traveling to (or applying for a visa in) another country as some countries are strict about any criminal entry on a person’s FBI record. On the other hand, many countries will recognize the California expungement even though it is still on an FBI report. The other instance, although somewhat rare, where an expunged DUI may be an issue is for a person applying for legal residency or citizenship in the U.S.

The Clean Slate Act: The good news is that beginning next year, eligible DUIs will be automatically dismissed once the offender has successfully completed his or her sentence. The not as good news is that anyone who has been convicted or arrested for a DUI prior to January 1, 2021 must still file their own petition for dismissal of the conviction. The great news for all is that with passage of the Clean Slate Act, data brokers will no longer be able to access and report dismissed DUI convictions. Until this law goes into effect, companies, often referred to as “data brokers”, can access criminal databases and report all entries on an individual’s record. What that means in practical terms is that even a dismissed (expunged) conviction can and often is reported on an individual’s background check. These background checks are most often used by employers and for rental applications. Even though it is illegal in California to deny a person employment based on an expunged conviction, the employer still has access to the information and there is no way to prove that an employer considered the information. Beginning in 2021, it will be unlawful for a data broker to report an expunged conviction. However, and this is important, if the conviction is not expunged, it is still a matter of public record. Therefore, it becomes even more imperative to expunge your DUI record now so that you can benefit from this new law.

Orange County DUI defense attorney William Weinberg is available for a free consultation. He will review your DUI record and advise you regarding your right to file a petition for dismissal of the conviction. Mr. Weinberg can prepare and file the petition without the necessity of an office visit if you wish as the entire process can be completed over email and the phone. You may contact Mr. Weinberg by calling his office at 949-474-8008 or by emailing him at bill@williamweinberg.com.

 

 

 

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