Post-Conviction Relief

Post-Conviction ReliefMany individuals convicted of DUI / DWI mistakenly believe that nothing can be done to minimize the damage once a conviction is on the driver’s record. However, many criminal records can be cleaned up through a process known as post-conviction relief. A California attorney with experience obtaining post-conviction relief can review individual cases to determine whether the driver’s conviction can be remedied.

The type of relief available depends on the conviction and the punishment meted out. Criminal cases fall into three separate and distinct categories: felonies, which are punishable by a year or more in state prison; misdemeanors, which are punishable by up to a year in county jail; and “wobblers” – cases that can be punished either way, but are often pursued as felonies.

Most post-conviction relief is unavailable if the driver is still on probation. However, an experienced criminal defense lawyer can petition the court to terminate probation early so that a convicted DUI driver can benefit from the various types of legal relief available.

The court must determine that the discharge of probation is warranted by the driver’s good conduct and reform, and that the interests of justice would be served by early termination. The driver’s attorney must submit a written motion requesting a modification of probation to the court in which the original conviction took place. All fines and restitution must be paid in order for the court to grant an early termination of probation.

Once probation has ended, a qualified criminal defense attorney can request that the court reduce some felonies to misdemeanors. The only felonies eligible for reduction are “wobblers”. If the court grants the request, the conviction becomes a misdemeanor in all instances with few exceptions. The original charge will still count as a felony in any subsequent criminal action, meaning that if the individual is arrested for a similar crime in the future, the punishment for the second crime will be greater. In addition, individuals whose felonies are reduced to misdemeanors are still restricted in their rights to possess firearms, because federal gun statutes supersede state laws.

Another option available in California is expungement of both felonies and misdemeanors. Expungement is only available for certain convictions. The availability of expungement depends on whether the original crime was committed by a juvenile or an adult; whether the conviction was for a misdemeanor or a felony; whether probation was granted; and whether a term in state prison was mandated.

Expungement of both felonies and misdemeanors can remove hurdles to employment, professional licenses, and housing, and bring a great deal of emotional relief. An attorney skilled at obtaining post-conviction relief can review each individual conviction to determine whether expungement or reduction to a misdemeanor is possible.

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