Many drivers convicted of DUI / DWI mistakenly believe that once an offense is on their records, nothing can be done to remove it. However, criminal records can be cleaned up through a process known as post-conviction relief. Even felonies can be removed from a driver’s record with the help of a California attorney with experience handling expungements.
There are two types of felonies in drinking and driving cases – those that resulted in the driver being sentenced to state prison, and those that ended with the motorist being sentenced to county jail or some other form of punishment. Each type of felony requires a different approach if the offense is to be expunged.
Felony convictions that resulted in a state prison sentence can be expunged in one of two ways – through a certificate of rehabilitation and pardon, or through a direct application to the governor.
Certificates of rehabilitation and pardon are issued by the trial court if the individual is able to prove that he or she has led an exemplary life for a specified period of time depending on the conviction, and has been completely rehabilitated. In California, the individual must have been a resident of the state for at least three years before the petition will be considered. If the certificate is granted, it is then forwarded to the governor, who will consider whether to grant the offender a pardon. Both the court and the Governor’s Office may require an investigation of the defendant’s conduct both in prison and after release.
Another approach to obtaining a pardon is to appeal directly to the governor. This avenue is typically used by individuals who ineligible for a certificate of rehabilitation, including out-of-state residents. In order to be considered for a pardon, the individual must have been released from probation or parole for more than 10 years, except in extraordinary circumstances. The petitioner must demonstrate that he or she has been completely rehabilitated and has led an exemplary life during that period.
Expungement of felonies that did not result in a state prison sentence are approached in much the same way as misdemeanor expungements – an experienced California expungement attorney petitions the original court that handled the case to set aside the conviction in the interest of justice. If the court grants the petition, the offender is allowed to withdraw the original plea of guilty or no contest, and enter a plea of not guilty. If the conviction stemmed from a jury decision, the jury’s verdict is set aside.
This approach applies only to offenses known as “wobblers” – crimes that can be charged as either felonies or misdemeanors, but typically are charged as felonies. An experienced attorney can often persuade the court to reduce a felony wobbler to a misdemeanor.
Once the felony is expunged, the court notifies the Department of Justice, and the offense is treated as a misdemeanor in nearly all respects, with a few exceptions. The offense can still be treated as a prior if the driver is arrested on a similar charge within 10 years, and will result in increased punishment for the later offense. Also, the individual will not have the right to possess firearms, because federal gun statutes supersede state laws.
An expungement will not be granted if the offender is facing a new charge, in jail or prison, has a warrant out for his or her arrest, has not paid court or DMV fines in full, or is still on probation. However, a skilled California expungement attorney can petition the court to terminate probation early, so that the offender can begin the process of expunging his or her record.