Probation
A (somewhat) DIY Expungement
Hey everyone, Tom here - and it's me actually writing the article for once! I’ve been meaning to write this for a while, but haven’t gotten around to it, my apologies. The truth of the matter is that once you do your classes, pay your fines, and live out your probation, your DUI goes away. It’s not hanging over your head, it’s not weighing on your shoulders, it’s not on the top of your mind all the time. For many of you going through it right now I know it doesn’t seem that way, but I promise you, it doesn’t.
Before we get into things - let me just be clear and reference the Disclaimer on the site and reiterate - I am not a lawyer, I have no legal training, and none of this is legal advice. This is a story of how I did things… I didn't know what I was doing and I had a little bit of guidance. Still, I think it's important to tell the story of how I mostly did my own expungement to showcase how it can be done. A previous post "Guest Post: How Often are DUI cases expunged in California" helped me to think I could take on the task myself, and gave me reassurance that expungement could be granted.
Additionally, every county is going to be different - this will apply to Los Angeles county, however there should be information on your county's website about which forms are needed.
It had been over 3 years since my DUI and I wanted to move on with my life. I had learned a lot from the process, I had grown, I was in a different position in my life. But still, I was worried about it haunting me - I needed to move soon, and I was worried that my conviction would make any prospective landlord say no to me. I was worried that when I was applying to new jobs that I would have to disclose it and they would turn me down for the job. It’s a cruel way to live - I had “done the time”, I paid off every penny I owed, I had done everything they asked me to, not made a single mistake since, and still, I was under threat of being punished further, that my mistakes would hang over me for the rest of my life.
I wanted to move on.
Fortunately CA offers a chance for us to move past our mistakes. They don’t offer a “true” expungement (which would be clearing out the whole thing top to bottom) but they offer one that’s close enough to where it doesn’t matter - Your plea of “Guilty” or “No Contest” or finding of guilt is withdrawn, a please of “Not Guilty” is entered, and your case is dismissed and can no longer be used on background checks. It’s still in the system that you were arrested, but now any time you are asked about a conviction you can fill out “no” and be correct. It doesn’t apply to filing state certifications, the FBI file on you, Watson Murder Laws, you’re still prior-able for any further DUI you receive, it doesn’t apply to the DMV side of things, but… it’s something. In most cases it will be enough to make it so that your DUI doesn’t further hinder your life.
To be eligible you must have completed probation, and paid any fines and fees you owe to the state.
When first discussing representation with my attorneys back when this all started, a few tried to tempt me into hiring them by offering me a “discount” on a later expungement, or a motion to reduce probation. Even with this discount both were very expensive and I wasn’t in a great place financially. I had to find other options. Could I possibly do this myself? I started researching and started gathering the resources to get the process started.
There’s a surprising amount of legal resources online provided by the government - The state has a guide where you can look up your conviction and see your eligibility, as well as guide you on how to expunge your record. More importantly they also host the two forms that are needed - CR-180 - the petition for dismissal, and CR-181 - the judge’s order to dismiss. The first one I filled out my court information at the top, then indicated which type of infraction I was convicted under and that I had done my probation, if it was terminated early I would've checked the box for that - but mine wasn't so I didn't, and that I should be “granted relief in the interest of justice”. It’s a lofty term, it feels like you’re asking them to clear up your case because you intend to become some sort of supercop, but really you’re asking them to be fair to you - you did everything you had to, you’re not dealing with another case, let me free. The companion document, CR-181, is basically the same court information and then setting everything up for a judge to check a box based on their decision and sign it. It’s basically making things easier on them, which is always a good thing.
Then comes the declaration - I could've written it in the space on CR-180, but there's not a lot of room to create a compelling argument. I decided to use a little bit more space, and I could have used either form MC-031 or deleted the first page of this pleading paper and written it according to legal practices - every line meeting up with a number on the side, numbering paragraphs, titling the document (on line 1), numbering the pages at the bottom above the footer (below line 28, and centered on the page) and filling in the information of what the document is at the bottom (Declaration in Support of Petition Under P.C. 1203.4, 1203.4a and/or P.C. 17(b)(3))
With the declaration I did what I’ve done this whole time - express remorse, regret, take responsibility for what I’ve done, and express how much better I've become, and how much I want to continue to be better. I wrote from the heart, writing about how awful this has been and how I never want to do it again. I let them know my pain, and how I absolutely never want to do this again. I also included how getting this expungement would help me achieve my goals in life and be a better person. It’s finally a chance for you to express all the things you’ve felt, all the please to God that you’ve made, with a chance that somebody will hear them, and help you. It feels good.
This is all a very technical process - and I didn’t know any of it. There’s a certain amount that you can do and learn on your own, but as with all of this process, it helps to get guidance from the professionals. There’s organizations dedicated to helping people get out from under the shadow of their conviction - namely Continuing Justice however, I managed to find a lawyer on social media who was willing to give me a little guidance, and it helped a lot. I never would’ve known all the rules about a pleading document without them. If you get confused there’s plenty of non-profit resources that you can look into.
This is where things get a little bit tricky and technical. It’s one of those “this is a reason why lawyers and legal clerks have jobs” sort of thing. Doing this by mail required me to have a Proof of Service form with the documents - form POS-030 - with this I couldn't turn the documents in by dropping them off, it must be via mail. There’s an additional hitch to this - I couldn't serve the documents since I am involved in the case. I had to get somebody else involved - it could've been anybody who isn’t involved in the case - a spouse, parent, child, friend, priest, grocer, neighbor, stranger you met in the street, anybody who isn’t me. I went with a friend who had gone through a similar situation that I was comfortable talking about it, but I did consider just making a Craigslist post and seeing if somebody would do it for $5.
My information was at the top of the POS (the branch name will be the court where my case was), and I filled in what documents will be sent and the name and address of whoever is being served - which was going to be either be the DA’s office, the City Attorney office, or whichever other office prosecuted me (I didn't know), and my friend helping me filled in their name, address, date, and their signature.
Then I made two packets:
The first is for the court - I sent in (in this order) a CR-180, Declaration, CR-181, Proof of service, all paper clipped together. You're not supposed to staple them, I'm told they hate that. I also included a second CR-180, and declaration paper clipped together. I put the two paper clipped packets in an envelope and addressed it to the clerk’s office of the court that my case was in.
The second packet is for the prosecution - you have to let them know that you’re doing this, too. It was either the District Attorney or the City Attorney, I tried the DA first. Their packet was a CR-180, Declaration, and Proof of Service all paper clipped together. They only need one copy, so that was all I put in an envelope addressed to them.
Then I met with my friend who was serving (mailing) these papers, had them fill out their name, address, date, and signature on both Proofs of Service, and then signed and dated my CR-180 and my declaration. Sealed the envelopes, stamped them, and gave them to my friend to send off.
Like everything, this isn’t the easiest process. There’s some unknowns. I initially sent mine to the District Attorney’s office and it came back with a letter saying the wrong party was served. I resubmitted the packet (still via my friend, but now with a new POS) to the City Attorney, and this time it took. Sometimes this is going to happen and even the lawyer who was advising me wasn’t able to tell who to submit to until it came back rejected. Don’t worry. It’s a common thing and it came back with a letter explaining why it was rejected. One of the very few times that the government was helpful during this whole ordeal.
Additionally, it was good to know that I didn't only have one chance to apply for an expungement. While expungement is somewhat common in DUI cases, things happen and they can be rejected. If you get rejected they should tell you why, and you can always take another crack at it, you just have to wait six months.
After a few times of submitting, waiting, getting my forms back, having them bounce back and figure it all out I got a letter saying that everything was submitted and would be reviewed. A month later I got my judgement: The court granted my request and dismissed my case.
It was a long time coming but it was finally over - all the pain, all the money, all the hassle… I’d finally overcome it. It was an extremely joyous moment, one of the very few in this process.
It was all behind me. Officially.
From submitting the final accepted packet to getting my judgement was just about two months. Two months is all it took to be free.
The number one question that comes with an expungement - can you go to Canada? Because Canada has different DUI laws that make even the most minor DUI a felony, they’ve historically been strict on allowing DUI offenders into their country. However, now that I’m no longer convicted of a DUI, would I be ok to go?
I haven’t traveled myself, but every indication seems to be yes. There’s several anecdotal examples of people getting in, and this website seems to suggest the same. They say it’s a good idea to have a copy of your dismissal paperwork with you, which isn’t a bad idea. Ultimately, still, it’s up to the border officer you encounter, but seems like most recognize a CA expungement. Canada focuses on convictions… with this expungement… you weren’t convicted. Just wait a little bit for the database to get updated.
AB 1076 was passed a little while back and has made a world of difference to a lot of people - it allows minor convictions to become automatically expunged after a certain amount of time. The reasoning makes a lot of sense - a lot of people don’t know they’re eligible for the expungement, plus the burden of the costs and research involved is unfair. Since this became law millions have already had their past convictions of shoplifting or other minor, non violent crimes be cleared from their record, allowing them to move on with their lives.
Will it work in your case? I’m not so sure.
First off, the law only applies to people who have been arrested after Jan 1st, 2021 - which means that most, if not all, people who received DUIs since then would still be on probation and not eligible for the automatic expungement yet.
The other problem is I’m not completely sure if DUIs are covered under the law. There’s part that’s carved out to call to the vehicle code, but I don’t quite understand it. Like I’ve always said, I’m not a lawyer. Researching this hasn’t lead me to any sort of definitive this will or this win’t expunge a DUI.
I often explain to people, like I did at the beginning of this post, that once you get to a certain point you don't think about your DUI, and it's almost as if it never happened… This is what I mean. Since the day I received the judgement, I've been free. I've certainly learned my lesson to never want to go through this whole ordeal again, but now I have a feeling that I've "made up" for what I did.
It can happen to you, too.
Before we get into things - let me just be clear and reference the Disclaimer on the site and reiterate - I am not a lawyer, I have no legal training, and none of this is legal advice. This is a story of how I did things… I didn't know what I was doing and I had a little bit of guidance. Still, I think it's important to tell the story of how I mostly did my own expungement to showcase how it can be done. A previous post "Guest Post: How Often are DUI cases expunged in California" helped me to think I could take on the task myself, and gave me reassurance that expungement could be granted.
Additionally, every county is going to be different - this will apply to Los Angeles county, however there should be information on your county's website about which forms are needed.
“Expungement”
It had been over 3 years since my DUI and I wanted to move on with my life. I had learned a lot from the process, I had grown, I was in a different position in my life. But still, I was worried about it haunting me - I needed to move soon, and I was worried that my conviction would make any prospective landlord say no to me. I was worried that when I was applying to new jobs that I would have to disclose it and they would turn me down for the job. It’s a cruel way to live - I had “done the time”, I paid off every penny I owed, I had done everything they asked me to, not made a single mistake since, and still, I was under threat of being punished further, that my mistakes would hang over me for the rest of my life.
I wanted to move on.
Fortunately CA offers a chance for us to move past our mistakes. They don’t offer a “true” expungement (which would be clearing out the whole thing top to bottom) but they offer one that’s close enough to where it doesn’t matter - Your plea of “Guilty” or “No Contest” or finding of guilt is withdrawn, a please of “Not Guilty” is entered, and your case is dismissed and can no longer be used on background checks. It’s still in the system that you were arrested, but now any time you are asked about a conviction you can fill out “no” and be correct. It doesn’t apply to filing state certifications, the FBI file on you, Watson Murder Laws, you’re still prior-able for any further DUI you receive, it doesn’t apply to the DMV side of things, but… it’s something. In most cases it will be enough to make it so that your DUI doesn’t further hinder your life.
To be eligible you must have completed probation, and paid any fines and fees you owe to the state.
When first discussing representation with my attorneys back when this all started, a few tried to tempt me into hiring them by offering me a “discount” on a later expungement, or a motion to reduce probation. Even with this discount both were very expensive and I wasn’t in a great place financially. I had to find other options. Could I possibly do this myself? I started researching and started gathering the resources to get the process started.
Forms, lots of forms.
There’s a surprising amount of legal resources online provided by the government - The state has a guide where you can look up your conviction and see your eligibility, as well as guide you on how to expunge your record. More importantly they also host the two forms that are needed - CR-180 - the petition for dismissal, and CR-181 - the judge’s order to dismiss. The first one I filled out my court information at the top, then indicated which type of infraction I was convicted under and that I had done my probation, if it was terminated early I would've checked the box for that - but mine wasn't so I didn't, and that I should be “granted relief in the interest of justice”. It’s a lofty term, it feels like you’re asking them to clear up your case because you intend to become some sort of supercop, but really you’re asking them to be fair to you - you did everything you had to, you’re not dealing with another case, let me free. The companion document, CR-181, is basically the same court information and then setting everything up for a judge to check a box based on their decision and sign it. It’s basically making things easier on them, which is always a good thing.
Then comes the declaration - I could've written it in the space on CR-180, but there's not a lot of room to create a compelling argument. I decided to use a little bit more space, and I could have used either form MC-031 or deleted the first page of this pleading paper and written it according to legal practices - every line meeting up with a number on the side, numbering paragraphs, titling the document (on line 1), numbering the pages at the bottom above the footer (below line 28, and centered on the page) and filling in the information of what the document is at the bottom (Declaration in Support of Petition Under P.C. 1203.4, 1203.4a and/or P.C. 17(b)(3))
With the declaration I did what I’ve done this whole time - express remorse, regret, take responsibility for what I’ve done, and express how much better I've become, and how much I want to continue to be better. I wrote from the heart, writing about how awful this has been and how I never want to do it again. I let them know my pain, and how I absolutely never want to do this again. I also included how getting this expungement would help me achieve my goals in life and be a better person. It’s finally a chance for you to express all the things you’ve felt, all the please to God that you’ve made, with a chance that somebody will hear them, and help you. It feels good.
A Little Help
This is all a very technical process - and I didn’t know any of it. There’s a certain amount that you can do and learn on your own, but as with all of this process, it helps to get guidance from the professionals. There’s organizations dedicated to helping people get out from under the shadow of their conviction - namely Continuing Justice however, I managed to find a lawyer on social media who was willing to give me a little guidance, and it helped a lot. I never would’ve known all the rules about a pleading document without them. If you get confused there’s plenty of non-profit resources that you can look into.
Filing
This is where things get a little bit tricky and technical. It’s one of those “this is a reason why lawyers and legal clerks have jobs” sort of thing. Doing this by mail required me to have a Proof of Service form with the documents - form POS-030 - with this I couldn't turn the documents in by dropping them off, it must be via mail. There’s an additional hitch to this - I couldn't serve the documents since I am involved in the case. I had to get somebody else involved - it could've been anybody who isn’t involved in the case - a spouse, parent, child, friend, priest, grocer, neighbor, stranger you met in the street, anybody who isn’t me. I went with a friend who had gone through a similar situation that I was comfortable talking about it, but I did consider just making a Craigslist post and seeing if somebody would do it for $5.
My information was at the top of the POS (the branch name will be the court where my case was), and I filled in what documents will be sent and the name and address of whoever is being served - which was going to be either be the DA’s office, the City Attorney office, or whichever other office prosecuted me (I didn't know), and my friend helping me filled in their name, address, date, and their signature.
Then I made two packets:
The first is for the court - I sent in (in this order) a CR-180, Declaration, CR-181, Proof of service, all paper clipped together. You're not supposed to staple them, I'm told they hate that. I also included a second CR-180, and declaration paper clipped together. I put the two paper clipped packets in an envelope and addressed it to the clerk’s office of the court that my case was in.
The second packet is for the prosecution - you have to let them know that you’re doing this, too. It was either the District Attorney or the City Attorney, I tried the DA first. Their packet was a CR-180, Declaration, and Proof of Service all paper clipped together. They only need one copy, so that was all I put in an envelope addressed to them.
Then I met with my friend who was serving (mailing) these papers, had them fill out their name, address, date, and signature on both Proofs of Service, and then signed and dated my CR-180 and my declaration. Sealed the envelopes, stamped them, and gave them to my friend to send off.
Trial and Error
Like everything, this isn’t the easiest process. There’s some unknowns. I initially sent mine to the District Attorney’s office and it came back with a letter saying the wrong party was served. I resubmitted the packet (still via my friend, but now with a new POS) to the City Attorney, and this time it took. Sometimes this is going to happen and even the lawyer who was advising me wasn’t able to tell who to submit to until it came back rejected. Don’t worry. It’s a common thing and it came back with a letter explaining why it was rejected. One of the very few times that the government was helpful during this whole ordeal.
Additionally, it was good to know that I didn't only have one chance to apply for an expungement. While expungement is somewhat common in DUI cases, things happen and they can be rejected. If you get rejected they should tell you why, and you can always take another crack at it, you just have to wait six months.
Results
After a few times of submitting, waiting, getting my forms back, having them bounce back and figure it all out I got a letter saying that everything was submitted and would be reviewed. A month later I got my judgement: The court granted my request and dismissed my case.
It was a long time coming but it was finally over - all the pain, all the money, all the hassle… I’d finally overcome it. It was an extremely joyous moment, one of the very few in this process.
It was all behind me. Officially.
From submitting the final accepted packet to getting my judgement was just about two months. Two months is all it took to be free.
Travel
The number one question that comes with an expungement - can you go to Canada? Because Canada has different DUI laws that make even the most minor DUI a felony, they’ve historically been strict on allowing DUI offenders into their country. However, now that I’m no longer convicted of a DUI, would I be ok to go?
I haven’t traveled myself, but every indication seems to be yes. There’s several anecdotal examples of people getting in, and this website seems to suggest the same. They say it’s a good idea to have a copy of your dismissal paperwork with you, which isn’t a bad idea. Ultimately, still, it’s up to the border officer you encounter, but seems like most recognize a CA expungement. Canada focuses on convictions… with this expungement… you weren’t convicted. Just wait a little bit for the database to get updated.
Automatic Expungement
AB 1076 was passed a little while back and has made a world of difference to a lot of people - it allows minor convictions to become automatically expunged after a certain amount of time. The reasoning makes a lot of sense - a lot of people don’t know they’re eligible for the expungement, plus the burden of the costs and research involved is unfair. Since this became law millions have already had their past convictions of shoplifting or other minor, non violent crimes be cleared from their record, allowing them to move on with their lives.
Will it work in your case? I’m not so sure.
First off, the law only applies to people who have been arrested after Jan 1st, 2021 - which means that most, if not all, people who received DUIs since then would still be on probation and not eligible for the automatic expungement yet.
The other problem is I’m not completely sure if DUIs are covered under the law. There’s part that’s carved out to call to the vehicle code, but I don’t quite understand it. Like I’ve always said, I’m not a lawyer. Researching this hasn’t lead me to any sort of definitive this will or this win’t expunge a DUI.
Afterwards
I often explain to people, like I did at the beginning of this post, that once you get to a certain point you don't think about your DUI, and it's almost as if it never happened… This is what I mean. Since the day I received the judgement, I've been free. I've certainly learned my lesson to never want to go through this whole ordeal again, but now I have a feeling that I've "made up" for what I did.
It can happen to you, too.
New Year, New Laws - 2021
(Hey there, everyone - I first sent this post out via my newsletter - feel free to sign up for more updates like this. - Tom)
Hello, Happy New Year! Hope this one is treating you well.
2020 was a rough one for sure. What's nice about it is, when things hit the bottom, the only place they can go is up. That was my experience getting a DUI, and that's the attitude I'm taking with me into 2021. We'll see how long it lasts.
The first day of January usually involves a lot of changing laws, more often than not bringing the hammer down on DUI offenders harder, but that wasn't the case this year. As legislatures were unable to meet or otherwise occupied by the pandemic, DUI offenders weren't in the crosshairs for once. A nice feeling.
Instead the theme of this year's new laws: Justice Reform.
After the George Floyd incident and protests the tide shifted in this country, whether you agree with those sentiments towards police or not, and legislators acted in response (it was an election year, after all).
(Again standard legal disclaimer here: I'm not a lawyer, and I'm definitely not your lawyer, any analysis of this is me just trying to piece things together from the news/bills and I don't know the full ins-and-outs of how all this goes down. I'm giving you my best idea, however)
Legalized recreational marijuana - can still get a DUI-Drugs.
AB 3234 - Allows misdemeanor DUIs to become eligible for diversion. Once diversion is completed, the crime doesn't stick to your record.
I haven't gotten into the nuts-and-bolts of this one (these types of programs aren't laid out beforehand), but I'm guessing it's a lot like other programs - fines, probation, meetings - a lot of what you already do when convicted - and they seal your record automatically once it's done. No longer does a non-expunged DUI hang over your head for ten years. I'm guessing it'll still be prior-able since they love to be able to still stick it to you when they have a chance, and it'll stay on your DMV record so you're not getting a break on insurance.
That said - it's a great step forward. A DUI doesn't need to ruin somebody's life, it needs to teach them a lesson. Most of us have learned ours from the feeling of seeing police lights in the rearview.
The big caveat of this: It won't apply to a DUI you already have. If you've been convicted you'll still have to apply for an expungement the old fashioned way.
AB 1076 - Under this law, the state will automatically clear records for arrests that did not result in conviction after the statute of limitations has passed, and those around probation and jail once the sentence is completed.
This goes hand-in-hand nicely with the other law - if you don't receive diversion (it's up to the judge) and get convicted as you would have prior, your records will be sealed as if you got an expungement. This saves you the time and money of the process (which was difficult for me, and I plan to write about soon).
It's also nice to see a clearing of the arrest that doesn't lead to convictions - a lot of people think that if they get off then everything is fine, but an arrest still shows up on your record. That will no longer be the case.
However, like before, this only applies to arrests/and convictions after Jan 1, 2021.
Prop 17 - If your previous DUI was a felony, you may be eligible to regain your right to vote (it's insane that we take away voting rights like this in the first place).
Legalized recreational marijuana - can still get a DUI-Drugs.
Commercial truck drivers - or anyone driving a vehicle weighting 10,001 lbs or more, will automatically have their DWI upgraded to an Aggravated DWI, which carries a larger fine (up to $750 from $500, but don't think that's what you'll be paying) and a mandatory minimum of 17 days in jail (12 days will be suspended if the driver submits to a substance use disorder evaluation). Additionally, those commercial drivers who refuse to submit to a breathalyzer will have their commercial license suspended immediately instead of having that little bit of wiggle time before it was suspended.
Harsh. Commercial drivers used to be subject to the same laws as ordinary drivers, but no longer.
Legalized recreational marijuana - can still get a DUI-Drugs.
A "Move Over" law was enacted - if an emergency vehicle is at the side of the road, you need to move over a lane away from them or slow down to 20 MPH under the speed limit. Give them some space or police will have a reasonable cause to pull you over.
Legalized recreational marijuana - can still get a DUI-Drugs.
As of 1/1/21 - You can't drive while holding a cell phone. Only related to DUIs because it gives a reasonable cause to pull somebody over.
Tangentially related to DUI issues is the Real ID card - it was supposed to be required to fly this previous years, but in interest of keeping DMVs less crowded and/or closed, they delayed it until October. You'll need a Real ID compliant license to step on an airplane. So, if your license was suspended you'll either need to use a Passport, or get a Real ID state ID card to get on board. If you are getting a new license after suspension, be sure to get a Real ID compliant license. If you've just gotten one, then you either need a passport or have to go through the renewal process/fee again.
These are all the ones related/semi-related to drinking and driving that I could find. Has your state issued one I missed? Let me know!
Tom.
Hello, Happy New Year! Hope this one is treating you well.
2020 was a rough one for sure. What's nice about it is, when things hit the bottom, the only place they can go is up. That was my experience getting a DUI, and that's the attitude I'm taking with me into 2021. We'll see how long it lasts.
Changing Laws
The first day of January usually involves a lot of changing laws, more often than not bringing the hammer down on DUI offenders harder, but that wasn't the case this year. As legislatures were unable to meet or otherwise occupied by the pandemic, DUI offenders weren't in the crosshairs for once. A nice feeling.
Instead the theme of this year's new laws: Justice Reform.
After the George Floyd incident and protests the tide shifted in this country, whether you agree with those sentiments towards police or not, and legislators acted in response (it was an election year, after all).
(Again standard legal disclaimer here: I'm not a lawyer, and I'm definitely not your lawyer, any analysis of this is me just trying to piece things together from the news/bills and I don't know the full ins-and-outs of how all this goes down. I'm giving you my best idea, however)
Arizona
Legalized recreational marijuana - can still get a DUI-Drugs.
California
AB 3234 - Allows misdemeanor DUIs to become eligible for diversion. Once diversion is completed, the crime doesn't stick to your record.
I haven't gotten into the nuts-and-bolts of this one (these types of programs aren't laid out beforehand), but I'm guessing it's a lot like other programs - fines, probation, meetings - a lot of what you already do when convicted - and they seal your record automatically once it's done. No longer does a non-expunged DUI hang over your head for ten years. I'm guessing it'll still be prior-able since they love to be able to still stick it to you when they have a chance, and it'll stay on your DMV record so you're not getting a break on insurance.
That said - it's a great step forward. A DUI doesn't need to ruin somebody's life, it needs to teach them a lesson. Most of us have learned ours from the feeling of seeing police lights in the rearview.
The big caveat of this: It won't apply to a DUI you already have. If you've been convicted you'll still have to apply for an expungement the old fashioned way.
AB 1076 - Under this law, the state will automatically clear records for arrests that did not result in conviction after the statute of limitations has passed, and those around probation and jail once the sentence is completed.
This goes hand-in-hand nicely with the other law - if you don't receive diversion (it's up to the judge) and get convicted as you would have prior, your records will be sealed as if you got an expungement. This saves you the time and money of the process (which was difficult for me, and I plan to write about soon).
It's also nice to see a clearing of the arrest that doesn't lead to convictions - a lot of people think that if they get off then everything is fine, but an arrest still shows up on your record. That will no longer be the case.
However, like before, this only applies to arrests/and convictions after Jan 1, 2021.
Prop 17 - If your previous DUI was a felony, you may be eligible to regain your right to vote (it's insane that we take away voting rights like this in the first place).
Montana
Legalized recreational marijuana - can still get a DUI-Drugs.
New Hampshire
Commercial truck drivers - or anyone driving a vehicle weighting 10,001 lbs or more, will automatically have their DWI upgraded to an Aggravated DWI, which carries a larger fine (up to $750 from $500, but don't think that's what you'll be paying) and a mandatory minimum of 17 days in jail (12 days will be suspended if the driver submits to a substance use disorder evaluation). Additionally, those commercial drivers who refuse to submit to a breathalyzer will have their commercial license suspended immediately instead of having that little bit of wiggle time before it was suspended.
Harsh. Commercial drivers used to be subject to the same laws as ordinary drivers, but no longer.
New Jersey
Legalized recreational marijuana - can still get a DUI-Drugs.
Pennsylvania
A "Move Over" law was enacted - if an emergency vehicle is at the side of the road, you need to move over a lane away from them or slow down to 20 MPH under the speed limit. Give them some space or police will have a reasonable cause to pull you over.
South Dakota
Legalized recreational marijuana - can still get a DUI-Drugs.
Virginia
As of 1/1/21 - You can't drive while holding a cell phone. Only related to DUIs because it gives a reasonable cause to pull somebody over.
Traveling
Tangentially related to DUI issues is the Real ID card - it was supposed to be required to fly this previous years, but in interest of keeping DMVs less crowded and/or closed, they delayed it until October. You'll need a Real ID compliant license to step on an airplane. So, if your license was suspended you'll either need to use a Passport, or get a Real ID state ID card to get on board. If you are getting a new license after suspension, be sure to get a Real ID compliant license. If you've just gotten one, then you either need a passport or have to go through the renewal process/fee again.
These are all the ones related/semi-related to drinking and driving that I could find. Has your state issued one I missed? Let me know!
Tom.
On Probation
07/ 31 / 19 Filed in: Blog | DUI | DUI Life | DMV | Legal | Personal | Process | Probation | SurviveADUI
On Probation
Hi everyone. Been a while, I know. Truth of the matter is that once you’re sentenced, you’ve done your classes, gotten rid of your interlock, got your license back, life continues where you left off. Sure, your insurance is still high, but there’s an end in sight.
You might not believe this, but there comes a time when you hardly even think about your DUI.
It’s a good feeling. It’s a weird feeling.
Probation in CA lasts for three years. Throughout my journey with the DUI I kept getting different answers as to when it started. In my final assessment, my DUI class instructor told me that it started from the date of arrest. That made me feel better. It did not turn out to be the case. You’re on probation as soon as you get arrested, but it doesn’t count towards your probation. Would’ve been nice if it did, but, alas, it’s just how things go.
My lawyer told me it would start from the day I was sentenced. This seemed to make sense, but this, too, wasn’t quite the case. One day a few weeks ago, I decided to call up the DMV and double check (always a good idea) to make sure that my probation had passed like it should have. It did. Just my last day of probation was a month and a half later than I had calculated.
No idea why, and there’s really nothing I could’ve done about it. Can you imagine calling the DMV, “Hi, while I didn’t violate my probation, can you retroactively make my probation have ended earlier?”
If I had to do it again, which I’m trying my damnedest not to, I would’ve gotten my lawyer or called myself to find a definitive date that my probation was over. Would’ve had a small little celebration to myself when midnight ticked over on the clock when it happened (not drinking and driving, of course).
The probation you go on for your first DUI (and possibly others) is called “Summary Probation”, which basically means “don’t fuck up or we’ll throw the book at you”. There’s no expensive probation officer, which is probably the first time they let you not have another fee they could charge you. No PO, no checking in, nothing like that. Just don’t mess up.
Additionally you can't refuse a field sobriety test, and your odds of getting picked at a DUI checkpoint raise if they're checking plates (although I cruised through two, sober, without being tested).
So what is messing up?
Some people believe it’s committing any crime, but that’s not quite it. My lawyer told me that he had somebody arrested for shoplifting while on DUI probation and the court didn’t care, didn’t consider it a violation. (Update: I have been told in other states that this will trigger a violation, so best to keep clean as a whistle) While this blog does not condone shoplifting or any other crimes in any way whatsoever, you should know what scrutiny you’re under.
This probation deals with alcohol and driving - basically you can’t get caught with even a drop of alcohol in your blood when you’re driving or else you’ll face some consequences (and remember, you can't refuse a test). The common thing to say is that it’s another DUI even if you’re at .0001, but that’s not true either. They can only give you a DUI if you’re over .08 (.05 now in some places), otherwise it’s “just” a probation violation, which means more school, more money paid, more probation. If you’re above .08 you get a DUI on top of that. Not good.
Other traffic infractions are fine. This I can verify personally - I did receive a parking ticket, and an out-of-state speeding ticket (14 over on the highway, bullshit speed trap), and neither affected my probation or caused any additional consequences (and yes, I was sweating bullets when pulled over on that highway and very worried about if this counts as a violation. Next rest stop I did a lot of googling until I calmed down enough to continue on my trip.)
Any sort of aggravated driving, road rage, that sort of thing takes you into the “maybe” territory. It’s all up to a judge and the system, and by this point you know how it goes. If they can, they usually will. You might catch a break, probably not, depends on a lot of things out of your control, and how you handle yourself around them. Bottom line: I wouldn’t depend on anything.
Your Summary Probation basically comes down to two tenets:
Seems easy enough. But three years is a long, long time. It gets harder and harder the longer you are from your DUI. Drinks after work, wine with a meal, beer at a ballgame. The temptations are everywhere. And if you’re like me, and haven’t quit drinking, you’ll eventually indulge yourself.
“A beer or two won’t hurt, not like I’m getting drunk, not like that night”
And then you wait a little bit, don’t get ‘one more for the road’, call it early.
And then you get in your car, and you head home. With just a little bit in your system. Nothing too bad, just a little bit.
And then a cop gets behind you.
And then you start sweating, worrying. Praying that your tail light is working, making sure your seat belt is fastened tight.
And the cop keeps following you, and you start worrying if he is playing games with you, you’re worrying that he somehow knows that you’re in violation.
You turn off the radio, you pay the best attention you can, and then eventually the cop turns down another road, and you let out a big sigh of relief.
Then two weeks later your friend asks you to happy hour.
And you start to sweat again, and think about what could happen.
This is what it’s like. It’s easy in that you don’t really have to do anything except not mess up. It’s hard in that our society practically pushes people to drink and drive. Odds are you’re reading this because you went to a social function, or did something that we’re told is how you relax. You felt fine because we don’t teach people how alcohol affects the body and it’s impossible to “feel” what your BAC level is. We make fun of people who use breathalyzers, and everyone condemns drinking and driving but nearly everyone does it.
You’re going to find yourself in a lot of situations where you will be tempted to violate your probation. I suggest knowing your BAC by using a portable breathalyzer, or taking an Uber or Lyft.
Looking over your shoulder for cops all the time sucks.
Some lawyers will offer you a service to where they can reduce your probation, usually take off the third year. I didn’t go for this, they wanted a thousand dollars for it, and I’d spent enough. Instead, I went through the whole thing. The theory is they cite your fulfilling all your commitments and use your two years (one and a half in some cases) of not violating probation as evidence that you won’t violate it for the next. Works some times, doesn’t work others. I decided to stick it out, a thousand dollars buys a lot of Lyfts, and I can refuse one last round and wait it out.
And so I did.
And now I’m free.
Reader, I can’t tell you how good it feels to be free of the system to come this far. Now I just have to get past the 3-year anniversary of finalizing my suspension to get my insurance rates to fall to normal and then… it’s all behind me.
The journey is long, and it’s hard, but just take it one step at a time, and you can get through it. It costs a lot, and it takes up a lot of time, but you can get through it.
You can Survive a DUI.
Hi everyone. Been a while, I know. Truth of the matter is that once you’re sentenced, you’ve done your classes, gotten rid of your interlock, got your license back, life continues where you left off. Sure, your insurance is still high, but there’s an end in sight.
You might not believe this, but there comes a time when you hardly even think about your DUI.
It’s a good feeling. It’s a weird feeling.
Probation in CA lasts for three years. Throughout my journey with the DUI I kept getting different answers as to when it started. In my final assessment, my DUI class instructor told me that it started from the date of arrest. That made me feel better. It did not turn out to be the case. You’re on probation as soon as you get arrested, but it doesn’t count towards your probation. Would’ve been nice if it did, but, alas, it’s just how things go.
My lawyer told me it would start from the day I was sentenced. This seemed to make sense, but this, too, wasn’t quite the case. One day a few weeks ago, I decided to call up the DMV and double check (always a good idea) to make sure that my probation had passed like it should have. It did. Just my last day of probation was a month and a half later than I had calculated.
No idea why, and there’s really nothing I could’ve done about it. Can you imagine calling the DMV, “Hi, while I didn’t violate my probation, can you retroactively make my probation have ended earlier?”
If I had to do it again, which I’m trying my damnedest not to, I would’ve gotten my lawyer or called myself to find a definitive date that my probation was over. Would’ve had a small little celebration to myself when midnight ticked over on the clock when it happened (not drinking and driving, of course).
The probation you go on for your first DUI (and possibly others) is called “Summary Probation”, which basically means “don’t fuck up or we’ll throw the book at you”. There’s no expensive probation officer, which is probably the first time they let you not have another fee they could charge you. No PO, no checking in, nothing like that. Just don’t mess up.
Additionally you can't refuse a field sobriety test, and your odds of getting picked at a DUI checkpoint raise if they're checking plates (although I cruised through two, sober, without being tested).
So what is messing up?
Some people believe it’s committing any crime, but that’s not quite it. My lawyer told me that he had somebody arrested for shoplifting while on DUI probation and the court didn’t care, didn’t consider it a violation. (Update: I have been told in other states that this will trigger a violation, so best to keep clean as a whistle) While this blog does not condone shoplifting or any other crimes in any way whatsoever, you should know what scrutiny you’re under.
This probation deals with alcohol and driving - basically you can’t get caught with even a drop of alcohol in your blood when you’re driving or else you’ll face some consequences (and remember, you can't refuse a test). The common thing to say is that it’s another DUI even if you’re at .0001, but that’s not true either. They can only give you a DUI if you’re over .08 (.05 now in some places), otherwise it’s “just” a probation violation, which means more school, more money paid, more probation. If you’re above .08 you get a DUI on top of that. Not good.
Other traffic infractions are fine. This I can verify personally - I did receive a parking ticket, and an out-of-state speeding ticket (14 over on the highway, bullshit speed trap), and neither affected my probation or caused any additional consequences (and yes, I was sweating bullets when pulled over on that highway and very worried about if this counts as a violation. Next rest stop I did a lot of googling until I calmed down enough to continue on my trip.)
Any sort of aggravated driving, road rage, that sort of thing takes you into the “maybe” territory. It’s all up to a judge and the system, and by this point you know how it goes. If they can, they usually will. You might catch a break, probably not, depends on a lot of things out of your control, and how you handle yourself around them. Bottom line: I wouldn’t depend on anything.
Your Summary Probation basically comes down to two tenets:
- Don’t drink and drive
- Don’t be an asshole.
Seems easy enough. But three years is a long, long time. It gets harder and harder the longer you are from your DUI. Drinks after work, wine with a meal, beer at a ballgame. The temptations are everywhere. And if you’re like me, and haven’t quit drinking, you’ll eventually indulge yourself.
“A beer or two won’t hurt, not like I’m getting drunk, not like that night”
And then you wait a little bit, don’t get ‘one more for the road’, call it early.
And then you get in your car, and you head home. With just a little bit in your system. Nothing too bad, just a little bit.
And then a cop gets behind you.
And then you start sweating, worrying. Praying that your tail light is working, making sure your seat belt is fastened tight.
And the cop keeps following you, and you start worrying if he is playing games with you, you’re worrying that he somehow knows that you’re in violation.
You turn off the radio, you pay the best attention you can, and then eventually the cop turns down another road, and you let out a big sigh of relief.
Then two weeks later your friend asks you to happy hour.
And you start to sweat again, and think about what could happen.
This is what it’s like. It’s easy in that you don’t really have to do anything except not mess up. It’s hard in that our society practically pushes people to drink and drive. Odds are you’re reading this because you went to a social function, or did something that we’re told is how you relax. You felt fine because we don’t teach people how alcohol affects the body and it’s impossible to “feel” what your BAC level is. We make fun of people who use breathalyzers, and everyone condemns drinking and driving but nearly everyone does it.
You’re going to find yourself in a lot of situations where you will be tempted to violate your probation. I suggest knowing your BAC by using a portable breathalyzer, or taking an Uber or Lyft.
Looking over your shoulder for cops all the time sucks.
Some lawyers will offer you a service to where they can reduce your probation, usually take off the third year. I didn’t go for this, they wanted a thousand dollars for it, and I’d spent enough. Instead, I went through the whole thing. The theory is they cite your fulfilling all your commitments and use your two years (one and a half in some cases) of not violating probation as evidence that you won’t violate it for the next. Works some times, doesn’t work others. I decided to stick it out, a thousand dollars buys a lot of Lyfts, and I can refuse one last round and wait it out.
And so I did.
And now I’m free.
Reader, I can’t tell you how good it feels to be free of the system to come this far. Now I just have to get past the 3-year anniversary of finalizing my suspension to get my insurance rates to fall to normal and then… it’s all behind me.
The journey is long, and it’s hard, but just take it one step at a time, and you can get through it. It costs a lot, and it takes up a lot of time, but you can get through it.
You can Survive a DUI.
Guest Post: How often are DUI cases expunged in California?
Robert Miller reached out to me to share a bit about the expungement process. It's not a part of gotten to yet (I'm still on my probation) but hope to do someday. Valuable information that I have found very useful in the hope of moving on. Hopefully Robert will help me out when the time comes. - Tom.
If you have been convicted of a DUI, clearing your record is a worthy goal that most people will have. An expungement of a California DUI would help clear your criminal record. So you may wonder how often DUI cases are expunged in California.
As it becomes easier and easier for potentially employers to obtain digital records of convictions, and as the job market makes job applications more competitive, it is easier and easier for employers to screen out the candidates with a criminal record, which leaves those with a DUI with less and less available jobs to even compete for. For those reasons, if you have a DUI on your record, expunging it from your record is something you would want to accomplish as rapidly as possible.
It’s important to realize that when speaking about a “record”, that in California, after a DUI conviction you actually have two different records that your DUI shows up on.
A criminal record will show your arrest, the case number, and the sentence (or what is called the “disposition” on a criminal record).
The driving record will show points from a DUI conviction, whether a wet reckless or a DUI, or any accident or other related traffic tickets. Any alcohol related conviction will show as a notification on your driving record, and will show the date of offense, the date of conviction, and any DMV actions related to the DUI or alcohol related offense, and the also any filings of an SR22 for insurance purposes.
A criminal conviction stays on your criminal record for life, unless it’s expunged, or pardoned by the Governor of California. It never automatically “drops off”, like items on your credit report. It can only be used against you for purposes of alleging a prior DUI for ten years, but it’s still on your record, even after that ten-year period.
Any driving record notation also stays on your record for life. It can only be used to increase insurance for three years. The points from any tickets, accidents, or court convictions can only be used against you by the DMV for a three-year period to suspend your license. But the DMV keeps track of your lifetime points for their “negligent operator” program, which is used to pull the licenses of the most serious driving offenders. There is no way to expunge your driving record, only your criminal record.
An expungement is a motion to the court that, once granted, retroactively dismisses your case from your criminal record. There are some things that by law, an expungement cannot help you with, namely preventing criminal charges for priors for future crimes, getting federal or state licenses, or contracting with the state or federal government.
In order to get an expungement order granted, you need to first bring the motion. Most counties in California have a court form available online for applying for an expungement, and in addition to the form motion, you must also provide the order for the judge to sign (California has a form for these, Forms CR-180 & CR-181). A copy of your motion must also be mailed or delivered in person to the prosecutor.
You also must meet three requirements in order to get an expungement:
What does California law state about an expungement?
California’s expungement law, Penal Code 1203.4(a)(1) states:
“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.” (Emphasis added)
I have bolded the sections of the law that state “shall” in the law above, because those are truly unusual in law. In most cases, and in most laws, the law explicitly gives a judge a decision to make, by stating that the judge “may, in his or her discretion”.
The expungement law is different because the use of the term “shall” means that the judge doesn’t have that discretion. As long as the person seeking an expungement meets the three requirements above, the judge has to grant the expungement petition.
As a result, a high rate of DUI cases are expunged. The only way to not get an expungement is either to not qualify by not meeting one of the three requirements above, or to not apply for one at all.
Author: This article was written by Robert Miller, an Orange County DUI Lawyer at the law firm of Miller & Associates in Newport Beach, California.
How often are DUI cases expunged in California?
If you have been convicted of a DUI, clearing your record is a worthy goal that most people will have. An expungement of a California DUI would help clear your criminal record. So you may wonder how often DUI cases are expunged in California.
As it becomes easier and easier for potentially employers to obtain digital records of convictions, and as the job market makes job applications more competitive, it is easier and easier for employers to screen out the candidates with a criminal record, which leaves those with a DUI with less and less available jobs to even compete for. For those reasons, if you have a DUI on your record, expunging it from your record is something you would want to accomplish as rapidly as possible.
What exactly is on my record after a DUI?
It’s important to realize that when speaking about a “record”, that in California, after a DUI conviction you actually have two different records that your DUI shows up on.
The first is your criminal record.
A criminal record will show your arrest, the case number, and the sentence (or what is called the “disposition” on a criminal record).
The second is the driving record.
The driving record will show points from a DUI conviction, whether a wet reckless or a DUI, or any accident or other related traffic tickets. Any alcohol related conviction will show as a notification on your driving record, and will show the date of offense, the date of conviction, and any DMV actions related to the DUI or alcohol related offense, and the also any filings of an SR22 for insurance purposes.
A criminal conviction stays on your criminal record for life, unless it’s expunged, or pardoned by the Governor of California. It never automatically “drops off”, like items on your credit report. It can only be used against you for purposes of alleging a prior DUI for ten years, but it’s still on your record, even after that ten-year period.
Any driving record notation also stays on your record for life. It can only be used to increase insurance for three years. The points from any tickets, accidents, or court convictions can only be used against you by the DMV for a three-year period to suspend your license. But the DMV keeps track of your lifetime points for their “negligent operator” program, which is used to pull the licenses of the most serious driving offenders. There is no way to expunge your driving record, only your criminal record.
What exactly is an expungement in California?
An expungement is a motion to the court that, once granted, retroactively dismisses your case from your criminal record. There are some things that by law, an expungement cannot help you with, namely preventing criminal charges for priors for future crimes, getting federal or state licenses, or contracting with the state or federal government.
How does someone qualify for an expungement of a DUI?
In order to get an expungement order granted, you need to first bring the motion. Most counties in California have a court form available online for applying for an expungement, and in addition to the form motion, you must also provide the order for the judge to sign (California has a form for these, Forms CR-180 & CR-181). A copy of your motion must also be mailed or delivered in person to the prosecutor.
You also must meet three requirements in order to get an expungement:
- You must be off probation. Either probation must have expired, or you must bring a motion to terminate probation early first.
- You must have completed all the terms of your sentence. The court will look at your court file and make sure that all fines are paid, all alcohol schools are completed, and any community service, or special classes or punishment have been finished.
- You must not have any other cases pending, and you must not have any convictions after the conviction you are seeking to expunge. Any convictions would be a probation violation.
What does California law state about an expungement?
California’s expungement law, Penal Code 1203.4(a)(1) states:
“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.” (Emphasis added)
So, how often are DUI cases expunged in California?
I have bolded the sections of the law that state “shall” in the law above, because those are truly unusual in law. In most cases, and in most laws, the law explicitly gives a judge a decision to make, by stating that the judge “may, in his or her discretion”.
The expungement law is different because the use of the term “shall” means that the judge doesn’t have that discretion. As long as the person seeking an expungement meets the three requirements above, the judge has to grant the expungement petition.
As a result, a high rate of DUI cases are expunged. The only way to not get an expungement is either to not qualify by not meeting one of the three requirements above, or to not apply for one at all.
Author: This article was written by Robert Miller, an Orange County DUI Lawyer at the law firm of Miller & Associates in Newport Beach, California.