Expungement of a DUI Conviction
An expungement is the set aside of your DUI conviction and a dismissal of the case.
Filing of Petition
The expungement process involves the filing of a petition with the court where your DUI conviction occurred. Along with this petition, typically you would include a declaration from you explaining why the petition should be granted. We can also file letters of recommendation from employer, friends, family, clergy person and other evidence to persuade the court to grant the petition.
Copies of the petition and accompanying documents must be given to the district attorney’s office and, in some cases, the probation department.
After the petition is filed, the court schedules a hearing at which your attorney will appear for you. Usually a representative from probation will appear at the hearing or provide the judge with a written report as to how you performed on probation.
A representative from district attorney’s office will also be present and will weigh in on whether you are a suitable candidate for an expungement.
An attorney can appear at the hearing, argue on your behalf and present evidence demonstrating granting the petition would be in the interests of justice.
If the judge grants the expungement, the court staff will notify the California Department of Justice (DOJ) that the expungement was granted and the DOJ must update your record to show the DUI has been dismissed within 30 days of the order being granted.
Expungement Not Granted
There is no limit to how many times you can petition for an expungement or how long you have to wait to re-petition. So if your expungement petition is at first denied, you can try again. An attorney can advise you on the best way to handle a second petition and how long to wait until you re-file.
How Does the Court Decide Who Receives a DUI Expungement?
The judge is not required to grant a request for an expungement. Instead the court is allowed to use its discretion – in other words, the judge has the freedom to decide whether to grant an expungement on a case-by-case basis.
Generally, a DUI expungement can be granted if:
- You have fulfilled the conditions of probation have been satisfied for the entire probationary period; or
- You have been discharged from probation early; and
- If the judge, in his or her discretion, believes you should be granted relief in the interests of justice.
How Does a DUI Expungement Affect Employment?
After a DUI expungement, if a potential employer asks if you have ever been convicted of DUI you can honestly answer “No.” By law, the only time that you have to disclose an expunged offense in California is if: (1) you are contracting with the California State Lottery; (2) you are running for public office; or (3) you are applying to become a police officer.
It is illegal for an employer to request or use a record of non-convictions, or of participation in diversion or other programs after which the case is dismissed, to affect employment status, and the employer can suffer damages for doing so including criminal prosecution. (Cal. labor Code Sec. 432.7) Nonetheless, it is always possible that some employers may do deep background searches and become aware of such a record and without disclosing the reason, fail to hire or promote someone because of their undisclosed knowledge.
How Does a DUI Expungement Affect My Driver’s License?
An expunged DUI conviction still counts on your driving record and with the DMV as a prior for 10 years after the date of the offense. What this means is that an expunged DUI can be used against you by the DMV for purposes of suspending or restricting your license if you get another DUI in the future.
Does an Expunged DUI Count Against Me in Court if I Get Another DUI?
Yes. An expunged DUI conviction still counts as a prior if you are charged in criminal court with DUI in the future and can be used to make future DUI charges more serious and subject to heavier penalties.