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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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I asked this question earlier but had to go prior to receiving

Customer Question

I asked this question earlier but had to go prior to receiving an answer. I had a felony misdemeanor DUI in May 2005. I took the proscribed DUI program, completed it, and after paying a fine, I was able to have my license reinstated. I am wondering if there is any way of appealing to the DMV to remove the DUI incident from my driving record? Thanks for your assistance,

Laura Roche
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Dwayne B. replied 3 years ago.
I answered this earlier for you and you can find it at http://www.justanswer.com/questions/463xq-it-has-been-a-little-over-5-years-that-i-had-a-dui-for-which. You actually have to file for an expungement with the court.
Expert:  Jim Reilly replied 3 years ago.
Hello Customer and welcome to JustAnswer.

Unfortunately, I have to disagree with the answer previously provided to you about this situation. In California, there is no such thing as a true expungement. The closest thing we have is a petition under Penal Code section 1203.4 to set aside a conviction and have a case dismissed.

Dismissed and expunged, however, are not the same thing. In some states, there is a true expungement (meaning that the records are completely wiped out/destroyed). In California, your record will continue to show an arrest, conviction if there was one, withdrawal or set aside of the conviction and dismissal of the charge under 1203.4. You can answer most questions about "conviction" in the negative (that is, questions by private persons such as potential employers). On the other hand, the full record is available in response to authorized inquiries (that is, from law enforcement or regulatory agencies).

The 1203.4 process is often erroneously called "expungement", even by California lawyers. In fact, I once heard a judge call it that. Use of the term "expunged" is misleading because it implies that it is completely eradicated from your record, which it is not.

Furthermore, this process, is not automatically available for DUI convictions as it is for other offenses -- 1203.4, subdivision (c), provides:

(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.


Section 12810, subdivision (b), includes DUI cases. Furthermore, although the court therefore has discretion to grant such a petition, most California courts will not exercise that discretion.

Finally, even if 1203.4 relief is granted, such relief has several limitations:

1) The prior conviction can be still be used in a later prosecution for second or subsequent DUI offense.

 

2) Even if Penal Code Section 1203.4 relief is granted, the individual must still 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.


3) And finally, Vehicle Code section 13555 provides:

A termination of probation and dismissal of charges pursuant to Section 1203.4 or a dismissal of charges pursuant to Section 1203.4a of the Penal Code does not affect any revocation or suspension of the privilege of the person convicted to drive a motor vehicle under this chapter. Such person's prior conviction shall be considered a conviction for the purpose of revoking or suspending or otherwise limiting such privilege on the ground of two or more convictions.

In summary, then, it is difficult to obtain 1203.4 relief for a DUI conviction and even if obtained it does not completely wipe out the conviction record.

Thanks for asking your question here on JustAnswer. If you have any other questions about this issue, please let me know.

Edited by RunTam38 CA Lawyer on 11/1/2010 at 2:40 AM EST
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience: CA Atty since 1976, primarily criminal law. 150+ jury trials.
Jim Reilly and other Criminal Law Specialists are ready to help you

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