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Steps to get off Probation and expunge your case after a San Diego DUI

by | Jan 11, 2014 | DUI Cases |

Getting a San Diego DUI off their record is one of the most common questions I receive. Most of my San Diego DUI clients have never have been in trouble before. Getting off probation and ultimately getting the San Diego DUI expunged is one of the most important aspects of the case. I make it a point to provide this to my clients as part of my services. I know if I (or a loved one) was looking at retaining an attorney, providing this is a must.

If you are still on probation after a San Diego DUI, unfortunately:

A.  You cannot yet expunge/dismiss your San Diego DUI conviction under Penal Code Section 1203.4, and

B.  If requested by a California peace officer, you have to submit to blowing in a hand-held breath test gadget or breath machine in order to determine if you are driving with a measurable amount of alcohol in your system (.01% BAC or more).

A) Not being to expunge/dismiss a San Diego drunk driving case can mean adverse consequences at work, school or elsewhere.

B) Losing your license for 1 year if you blow .01% (unless your attorney prevails at the San Diego DMVhearing) would be a severe blow to your mobility, certain employment opportunities and other liberties.

Question.  How do you get off probation as a result of a San Diego DUI court case?

1) First, gather all relevant information:

  • Date of Conviction,
  • California Vehicle Code Section convicted of (e.g. 23152 or 23103.5)
  • Years placed on Probation,
  • Case Number, and
  • Court Location.

2) Determine the Halfway point.  It is the first realistic time to request this from the court.

Divide the number of years you are on probation by 2.

You usually need to be halfway through the probationary period before most San Diego county judges will seriously entertain granting your San Diego DUI attorney’s motion to terminate probation.

If you are on probation for 5 years, add 30 months from the date you were placed on probation, i.e. the conviction date.  If you are on probation for 3 years, add 18 months from the conviction date.

The conviction date can easily be found on your final (8 1/2 by 14 inches) court papers often called “MISDEMEANOR – DUI/TRAFFIC JUDGMENT MINUTES.”

You can visit your particular San Diego county court location to get a copy of it if you did not keep a copy.  The Clerk’s Office can look up your case number by your name and date of birth.

As long as you have done everything ordered in a timely manner, probation continued and was not revoked.  If not, and probation was revoked, the total probationary period is extended for the time your probation was revoked.

3) Determine why you need to be off probation.

Employment-related opportunities is a common reason.  Documentation or a letter from a prospective employer would be helpful.  If not, write out a roadmap of what are your plans when off probation.

4) Provide this information to your San Diego DUI lawyer.

He or she can then prepare, file, serve, calendar and appear on a “Motion for Early Termination of Probation” aka a “Motion to Terminate Probation.”

It normally takes 2 months (or a little longer) in order for your San Diego DUI criminal defense attorney to have this motion decided by a judge or commissioner, depending on the court calendar.

If you think you are ready to proceed, you may contact San Diego Attorney Mark Deniz at [email protected] with the relevant information.

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation.

Here is some more information on the subject:

Expungement (PC1203.4)

The first thing that someone who wants to apply for an expungement needs to understand is that if your petition is granted under Penal Code 1203.4, your case is not sealed. A criminal record is not actually “expunged” under this statute. That term implies complete erasure, as if the case had never occurred. A more proper term is “dismissal”. The conviction remains on your record for many purposes, including sex offender registration and immigration consequences. What the statute provides is, except as elsewhere stated, the defendant is ‘released from all penalties and disabilities resulting from the offense’. There are numerous limitations to this relief.An adult who was granted probation, completed all the terms of probation, and is no longer on probation, iseligible for relief under this statute.He or she must not be on probation, or serving a sentence (including informal probation), for any other offense, anywhere. (Penal Code § 1203.4)

If you were denied probation, you can still obtain an expungement. You still cannot be on probation or serving a sentence for any other case. Applicants must wait for one year after their conviction before applying for expungement (Penal Code§1203.4a)

If your criminal case was reduced to an infraction, you are also eligible for an expungement under Penal Code section 1203.4a. Our office does not file infraction petitions.

What are the effects of expungement under PC1203.4/1203.4a?
It Will:

1. Result in a new entry in the court record showing the dismissal of the case;

2. Allow you to answer on many, but not all, job applications that you have not been convicted.
If, however, you are applying for a government job or a job which requires a government-issued
license, certificate, or permit, or a job which involves a security clearance, the conviction will be
discovered; in such cases, you should disclose the initial conviction and its later expungement;

3. Prevent use of the conviction to impeach you if you testify as a witness, unless you are being
tried for a subsequent offense.

4. If the conviction was for a felony, expungement is the first step in obtaining a pardon.

It Will Not:

1. Remove the conviction from your “Rap Sheet” – California and FBI criminal history records will
still show the conviction and the later dismissal “per PC 1203.4”;

2. Reinstate the right to possess firearms,if it was taken away (in cases such as Domestic Violence)  (reduction to a misdemeanor may accomplish this if the offense is not one of violence;)

3. Remove the requirement to register as a sex offender per PC290.  If the expungement is granted,
registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when
eligible.  A Certificate of Rehabilitation will relieve specified sex offenders from further registration.
This is true for both felony and misdemeanor convictions.

4. Allow you to omit the conviction from applications for government issued licenses;

5. Seal or otherwise remove the court case file from public inspection – anyone who knows where
to look will be able to find the court case file (probation reports are in confidential files and are
not subject to public inspection 90 days after sentencing;)

6. Prevent the conviction from being used as a “prior” or “strike prior” to increase punishment on a
subsequent conviction;

7. Prevent the conviction from being used for impeachment purposes on a subsequent offense;

8. Prevent the conviction from being considered and used to refuse or revoke government licenses
and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security
guard certificates, etc.; however, the expungement may reduce the weight given the conviction
by the licensing agency.

9. Prevent the conviction from being used by INS for removal and exclusion purposes.

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