DUI Dismissal

California DUI Dismissal Overview

The simple reality is that most jobs require background checks of job applicants.  You don’t want to lose out on a job opportunity because of a prior conviction.  That is why you should take the steps necessary to clear your criminal record of any convictions.  Once your case is dismissed in most cases you can confidently and legally answer that you were never convicted of a crime.      

Misdemeanor DUI Dismissal

The good news is even if you do get convicted of a DUI you more than likely can get it dismissed at the end of your probation term.  If you have successfully completed probation or have had probation terminated early you can petition the court to withdraw your plea and have the court order your case dismissed.  If your case is expunged, then you can lawfully answer to most employment related questions that you have never been convicted of a crime.   

Felony DUI Dismissal

Defendants who have successfully completed felony probation or have been discharged early can petition the court to withdraw the plea or conviction and dismiss the case.  Penal code section 1203.4 outlines the law for felony dismissals with probation.    

Reduction of Felony DUI to Misdemeanor DUI 

If you are convicted of a felony with probation on a “wobbler” offense, the court upon application may declare the offense to be a misdemeanor (Penal Code 17(b)(3)).  A “wobbler” can be charged as a felony or a misdemeanor.  In deciding to reduce a felony to a misdemeanor the court must give “individualized consideration of the offense, the offender, and the public interest.” (People v Superior Court (Alvarez) (1997) 14 C4th 968,978).  This applies to some felony DUI’s that can be charged as either a misdemeanor or a felony.  For instance, a DUI with minor injury.    

Benefit of Reduction of Felony DUI to Misdemeanor DUI

Once the felony is reduced to a misdemeanor the crime is considered a misdemeanor “for all purposes.”   There are exceptions to this rule.  Some convictions may still be considered a strike under the Three Strikes Law (Penal Code 667(d)(1), 1170.12(b)(1)).  The federal government may still consider the conviction a felony for purposes of its gun laws (US v Tallmadge (9^th Cir 1987) 829 F2d 767, 770). However, 18 USC 921(a)(20) recognizes some state expungements and set asides as it applies to gun laws.   

DUI Dismissals Not Mandatory

Penal code section 1203.4 outlines the law for misdemeanor or felony dismissals with probation.  Unfortunately, if you have been convicted of a DUI a dismissal is not mandatory under the law but is discretionary.  It is important to present the best case possible to the judge hearing your request for a dismissal to give yourself the best opportunity to get the dismissal you deserve.      

Benefit of DUI Dismissal

By law, a private employer may not ask a job applicant about any conviction dismissed under 1203.4 (2 Cal. Code. Regs 7287.4(d)).  California law says that it is unlawful for an employer or other covered entity to inquire or seek information regarding any applicant concerning:

• Any arrest or detention which did not result in conviction;
• Any conviction for which the record has been judicially ordered sealed, expunged, or statutorily eradicated (e.g. juvenile offense records sealed pursuant to Welfare and Institutions Code Section 389 and Penal Code Sections 851.7 or 1203.45); and misdemeanor conviction for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed pursuant to Penal Code Section 1203.4; or
• Any arrest for which a pretrial diversion has been successfully completed pursuant to penal Code Sections 1000.5 and 1001.5…”

California Misdemeanor DUI Dismissal Requirements

Eligibility for a misdemeanor expungement requires the following: 

• Misdemeanor is eligible for expungement.
• Probation has ended, has been terminated early, or court finds it’s in the interest of justice.
• All requirements of your probation have been fulfilled successfully including payment of all restitution and court fees related to the case.
• You are not currently serving a sentence for any other conviction or have pending criminal charges.
• No new crimes have been committed since your conviction

You may still be eligible for a California Misdemeanor Expungement even if you have been in additional trouble.  It is up to the judge who hears your case to decide if he will grant the dismissal.  Factors judges typically consider is seriousness of the new crime, length of time which has passed since the crimes were committed and good things you have done with your life since your convictions. 

California Felony DUI Expungement Requirements

Eligibility for a felony expungement requires the following: 

• Felony is eligible for expungement.
• Probation has ended, has been terminated early, or court finds it’s in the interest of justice.
• All requirements of your probation have been fulfilled successfully including payment of all restitution and court fees related to the case.
• You are not currently serving a sentence for any other conviction or have pending criminal charges.
• No new crimes have been committed since your conviction

You may still be eligible for a California Misdemeanor dismissal even if you have been in additional trouble.  It is up to the judge who hears your case to decide if he will grant the dismissal.  Factors judges typically consider is seriousness of the new crime, length of time which has passed since the crimes were committed and good things you have done with your life since your convictions.

Dismissal Still Has Consequences

A dismissal doesn’t prevent the conviction from being pled and proved like any other prior in a subsequent prosecution for DUI.  A dismissal doesn’t relieve a defendant of disclosing the conviction to any direct question or application for public office, licensure for any state or local agency, or for contracting with the state lottery.  It doesn’t permit a person to own, possess, or have in his or her custody or control any firearm if previously prohibited.  Since there are additional consequences which may be applicable to your case, consult with a knowledgeable expungement attorney regarding your circumstance.         

California Expungement Law 

California Penal Code Section 1203.4

(a) In any case in which a 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 defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.    Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.  Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.    This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.

   (b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of subdivision (b) of Section 42001 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.

  (c) (1) Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.     (2) If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant.

   (d) A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services

rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person’s eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision.

   (e) Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days’ notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.    It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.

   (f) If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.

   (g) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.