“Motion pursuant to section 1203.4/1203.4A of the California Penal Code is hereby granted. It is ordered that the plea, verdict, or finding of guilt be set aside and vacated a plea of not guilty be entered; and the complaint be and is hereby dismissed per 1203.4. Court has read and considered the motion for early termination of probation filed on behalf of the defendant pursuant to Penal Code, section 1203.3. Court finds that the defendant is eligible for the relief requested; and the motion for early termination of probation is granted pursuant to Penal Code section 1203.3.”
I drafted and filed a Motion for Early Termination of Probation and Dismissal of behalf of my client. A subsequent hearing was held in court last month. The above-cited court decision was great news for a client who worked very hard in ensuring that her first Driving Under the Influence (DUI) conviction would be a one-time event in her life.
In California a DUI is not just a traffic violation, it is a criminal offense—usually a misdemeanor, but sometimes a felony depending on the circumstances. You have to disclose your criminal history when you apply for jobs or professional licenses, and it can be held against you. Normally, a DUI stays on your criminal record permanently. However, you may be able to have it expunged. You are eligible to expunge a DUI if you completed all the terms and conditions of probation, sentence did not involve state prison (as opposed to jail) and not presently facing other criminal charges.
Expungement of a DUI in California is a post-conviction process and the conviction still counts as a DUI prior and for DMV purposes. But after the conviction is expunged, it cannot be used against a worker for hiring or promotion purposes. Expunging a California DUI conviction under Penal Code 1203.4 can help with job opportunities.
One of the major benefits of expunging a California DUI conviction is an easier time securing employment. A prospective employer may no longer use it as a basis for negative employment consequences. California’s “ban the box” law prohibits employers from asking about arrests or convictions on job applications or otherwise before a conditional offer of employment has been made (as of January 1, 2018 AB 1008). An expunged conviction does not have to be disclosed at all. But, if the employer somehow finds out, it may not legally use an expunged conviction as a basis when making employment decisions such as whether to retain or promote the employee.
If your probation is not completed, early termination of probation will need to be granted prior to an expungement. My client was “halfway” to completing her 36 months of probation, so I needed to “convince” both the prosecutor and the judge that she has learned her lesson and is a contributing member of society. This is not an easy feat—both the prosecutor and the judge must be convinced that the defendant is worthy of their “confidence.”
People are eligible for an expungement once their probation is terminated. It does not matter whether probation terminates because the probation period end or probation was terminated early by the court. The person who is on probation must file a petition for early termination with the court. The court has the discretion to grant the petition if: defendant has successfully completed the terms of probation (such as fines, classes or restitution) and circumstances exist that justify early termination of probation.
Many judges and prosecutors are reluctant to grant early termination of probation in a DUI or any criminal case, for that matter. One of the terms of probation for a driving under the influence offense is that the person may not drive with any measurable amount of alcohol in his/her system. The court and prosecution generally want to see the defendant bound by this term for as long as possible. Thus, most judges require the defendant to serve a complete term of probation before granting a PC 1203.4 DUI expungement and dismissing the case.
Besides having your DUI conviction sealed from public view, you have the right to deny under oath and without penalty of perjury that you were not convicted of that offense.
Most employment applications and residential rental agreements request criminal conviction information and will usually conduct a background check, but your conviction will not appear on those databases. The employer cannot deny a position to the applicant based on an expunged conviction. The expungement hides or seals your criminal record from the general public, but you still have an obligation to disclose the conviction and expungement if you apply for a professional license or for public employment. This includes applying for a court or law enforcement position or the US military and for a real estate or state bar license. An expungement, however, usually allows you to be eligible for a public or professional license (if not a felony).
Navigating the court system during “normal” times to expunge a criminal conviction was not easy, and it has become more complicated during the pandemic. It is critical that you hire an efficient but effective attorney to guide you to ensure that both the prosecutor and the judge affirm your request. Any questions, you can email me directly at [email protected] or call my office at 310-601-7144.
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