Clearing Your Record (Video)

This video discusses expungement, also called record clearance, of your DUI conviction in California, as well as termination of probation.  Termination of probation and record clearance  or expungement are a must if you are looking for work.  The cost of record clearance or expungement is low and it is easy to do!  So do it!

Record clearance is a method of clearing misdemeanor convictions. It is provided by California Penal Code Section 1203.4. If you were convicted of a misdemeanor DUI you can get the court to re-open your case and dismiss it, so that it ultimately goes down as a dismissal and not a conviction.

This allows you to advise a potential employer that you have not been convicted. You may have been arrested but the charges were dismissed.

PC 1203.4 provides that there are three occasions where you have to disclose that you were convicted of a crime. If you are applying to be a contractor for the Lottery Commission; if you are running for public office; or if you are applying for any kind of license with any state or local government agency, then you must disclose the conviction. By license 1203.4 means any kind of license: a drivers license, a fishing license or a license to practice law.

The process for expungement is really quite simple, but there are requirements. First, you must have paid all your fines, attended DUI school, completed your work release and completed all the other terms of your sentence. Second, it helps, but isn’t always necessary, for you to have served the entire term of your probation (usually three years). If you haven’t completed the term of your probation, then you must file a motion to terminate probation first. You also must not have violated probation.

For more information, call us and we will be happy to answer your questions!

Manuals- CHP DUI Manual

The California CHP DUI Enforcement Manual is the manual that all California Highway Patrol officers must follow in conducting a DUI investigation. The California CHP DUI Manual covers the initial stop and grounds for a stop, the initial observation of the suspect, how to question a suspect, how to conduct field sobriety tests, how to conduct a DUID (Driving Under the Influence of Drugs) investigation, and much more.

If a CHP officer does not adhere to the policies and procedures set forth by his own department, then you can conduct a powerful cross-examination of him at trial or in a hearing.  You can even use it to get evidence thrown out of court, negotiate a deal or get the case dismissed prior to trial.  I end up using this in every trial or hearing involving a CHP officer.

Be warned!  This is a large file.  If you don’t have much bandwith, call us.  We will send you a copy.

Manuals- California District Attorney DUI Manual

This California District Attorney DUI Manual was written by district attorneys for district attorneys.  It  instructs California prosecutors on how to try DUI cases.  A must-read for any DUI Attorney.  Much of this manual actually provides questions for examination and cross-examination of witnesses.  Extremely valuable in preparing your clients to give testimony.  This is a large file, so please be patient when downloading.  It is in an Adobe Acrobat pdf format.

Manuals- Judges DUI Benchguide

This is the California Judges DUI Benchguide for 2009.  This manual will give you the Judge’s perspective of your case.  Judge’s Benchguides are something that every judge gets when they go to a new courtroom that focuses on a new area of the law.  There are Benchguides for family law, felony criminal and domestic violence, to name only a few.  The Benchguide does not tell the judge how he or she should sentence you–the local County Court judges (as a group) set the standards for that–but it does give you an excellent overview of the process, and in as much depth as you want.  Another must-read book.

 

Penalties- How to Stay Out of Jail in a DUI Case

How to stay out of jail in a dui case.  The general rule is that jail time is rarely a problem for a first offender with no extenuating circumstances.  In terms of California DUI penalties, there is very rarely, if ever, jail time.  Instead, you are looking at the Sheriff’s Work Program in your county.  This involves eight-hours of labor (picking up trash on the side of the freeway, watering plants, etc.)  You get a day full credit for only eight hours of work, but there is no “good time”  (time off for good behavior) as there is in jail.

Sometimes jail time is probable or even inevitable, even for a first offender.  For example, if you are arrested for speeding while DUI (30 mph over the posted speed limit on a freeway, twenty mph over the posted speed limit on a city street) or if you are arrested with a child 14 years or younger in the car while you are DUI, then jail is a distinct possibility.

If this is your third or fourth DUI in ten years, jail is also likely to be included in your sentence.  If you are facing jail time there are a variety of ways that you can seek to avoid jail time.  Of course, your ability to avoid doing jail time is going to be dependent on the seriousness of the offense that you are charged with and the number of priors that you have.  Let’s look first at the alternatives to jail time and then discuss the likelihood of your being successful.

What will keep me out of jail?  It depends.

1.  Residential Treatment (Rehab):  This is the most common way to get out of jail time.  But you have to do this right.  First, “residential” means 24 hour lockdown.  You enter rehab and you don’t leave without an escort for the entire time you are there.  The court will need a letter from the program detailing your restrictions and obligations in order to participate in the program.  Second, get an order from the Court first.  If the court orders you into residential while your case is being processed, then you are entitled to day-for-day credit for residential.  If you don’t get a court order in advance, you will probably get some credit but not what you would have gotten with a court order.  To get a court order, simply tell the judge that you want to do rehab, and that it would help if he would order you into the program.  Chances are very good that the judge will comply.  Finally, be careful to avoid residential treatment centers that have problems or are unusual in their treatment therapy.  Unusual treatment programs, such as Scientology, herbalism, sweat lodges, etc. always raise eyebrows and can cause you to run the risk that the Court will simply order you into jail.  Remember, they don’t have to allow you an alternative to jail time.

2. Rehab Work-release and/or Out-patient:  Harder to get.  Judges are loathe to give you day-for-day credit for participating in a work-release or out-patient program.  But I have gotten this kind of treatment.  In one case, I had a client who was guilty of a DUI with injury to another person.  It was charged by the D.A. as a felony.  Because of my client’s age (he was in his early 70’s) the judge agreed to give him day-for-day credit for participating in a work-release program at his local residential treatment center.

3.  “City” or “Private” Jail In a few counties, Los Angeles and Orange Counties being the most notable, you can (with a court order) do your time in what is commonly referred to as “city jail”, like Hawthorne, rather than county jail.

Why?  The food is better, the surroundings are better, and the people…are better.  You are still in jail, but those differences can make all of the difference in the world.  If, for any reason, you feel that you will have a harder time than most in jail then consider city jail in L.A.  You will be in the custody of the City Police rather than the County Sheriff or Marshall.  And that means alot.  Take the county jail experience and improve it by a factor of four and you have city jail  There is a daily cost for this privilege.  If you are considering private jail, make sure that you get a court order allowing you to go there. If you do not live in LA or Orange Counties, then get a court order to allow you to do your time in Orange or LA County and specifically allowing you to do your time in a specific city jail.  We have a list appended for your convenience.

There are certain downsides to City Jail.  The court may not give you credit for “good time”–currently one-third–meaning that if you are sentenced to nine days, you end up doing six.  Also, you almost certainly not get released early because of overcrowding.  In LA and Orange County, City Jail is a nice extra source of revenue that they won’t give up unnecessarily.

If you live in a county where city jail is not allowed, see if you can get the judge to allow you to do your time in Southern California under the custody of whatever City Police Department you choose.  Contact the city jail and get literature showing how the private jail works, and bring it with you to court.  This will help to persuade a judge in a county outside of LA that city jail is an appropriate alternative to county.  And remind the judge that you still do the time and the county doesn’t have to pick up the bill or release you early if there is overcrowding.

4.  Sheriff’s Work Alternative Program:  As noted above, there is no good time given if you do the Sheriffs Work Alternative Program, called “weekend work release” or SWAP in some counties.  But it shouldn’t matter to you as you are only doing 8 hours of week for a full days credit.  You sleep in your own bed, eat your own food and watch your own TV at night.  Unless you enjoy jail, you are almost always better off doing SWAP or weekend work release instead of jail.  If you get a DUI away from home, most counties will allow you to do your work release in your own county.

5.  Community Service:  “Community service” means working at any qualified 501(c)(3) charity, such as the Red Cross, a local church, or a soup kitchen.  If you are allowed to do community service the Court will need to approve in advance the kind of work that you do and who you work for.  Getting community service in place of jail is a hard sell to any judge.  If you are sentenced to Sheriff’s Work instead of jail, you can get that converted to community service if you live in a place where you cannot do SWAP.  This usually happens with out-of-country residents, but community service can also be ordered if you have health problems that prohibit you from doing SWAP.

6.  Buying out of sheriff work.  Yes, you can buy your way out of sheriff work.  Most counties charge you a considerable amount.  There has to be a reason, however.  If you live out of state, that MIGHT do it–some counties can refer you to sheriff work in any county in the country.  And it is expensive.  One of my clients paid $3500 to get out of five days of Sheriff’s Work or SWAP.  Still, if you have the money, ask your attorney to inquire with the judge at the pre-trial conference or at your arraignment if you don’t have an attorney.  Make sure that you have compelling reasons for such a request.

7. Alcoholics Anonymous, Narcotics Anonymous and other treatment programs.  If you don’t have the money for a residential treatment program (see above) then a good fallback is AA.  If the judge you are appearing before is receptive to treatment (and some aren’t), then you might be able to lessen your sentence if you can show regular participation in AA.  I had a client who had two priors, both of them with enhancements and he was facing a tough jail sentence.  The judge told me at the bench that if I didn’t come up with something in mitigation of his crime my client would have to do jail time.  I returned to the bench and said that my client would be willing to do “90 in 90” AA meetings–i.e. 90 meetings in 90 days.  The judge halved the sentence on that offer.  The end of the story is better.  The client not only did 90 in 90, but he did more and became the AA meeting secretary.  The judge ended up converting the balance of jail time to Sheriff’s Work and thanked my client from the bench for helping others to fight addiction.  The bottom line is that if you are serious about fighting alcoholism or addiction, and show it, the Court will usually be receptive to some modification of your sentence unless it is already offering you the base sentence.

Penalties- “Wet” and “Dry” Reckless

What is a wet reckless and a dry reckless?  How are they different from a standard DUI?  What are the penalties for a wet reckless or dry reckless conviction?  This video discusses all of this as well as the pros and cons of these substitutes for a DUI conviction.  Also discusses how you get these offers.

Penalties- First Offense

DUI Penalties California- First Offense: 

A first offense DUI is treated more leniently that some expect.  The main problems are the license suspension, the expense and the nuisance (that is sheriff work).  That is what makes a first offense DUI a headache.  But you are not going to jail!  Know that up front.  Nobody goes to jail for a first offense DUI.  Not unless you want to.

  • Jail– Currently, a first offense is punishable by a jail sentence of up to a maximum of 6 months but it never happens.  Instead you will do sheriff work (8 hours picking up trash at your local park).
  • Fines-In addition to either jail time or probation, there is also a fine which in most counties is around $2000.
  • License Suspension and DUI School– In addition to jail and/or probation and fines, a suspension of your driver’s license of up to 6 months will be imposed but you are entitled to a six month restricted license.  Attendance at a state-approved DUI school for three months will be required. If your blood alcohol level is 0.20% or higher, this will be increased to nine months.  A BAC of 0.15 or higher (but less than 0.20) will get you six months DUI school in some counties.
  • Other– Depending on the judge that you get, you may also be required to perform community service, install an ignition interlock device (IID) in your car, and attend “victim’s panels” or Alcoholics Anonymous meetings.
  • Probation– The usual period of probation (informal in most cases) is three years. Probation is typically informal meaning that you do not have to check in with a probation officer or be subjected to surprise visits by a probation officer. You will be subjected to “zero tolerance” rules for the three years of probation, and you must submit to a PAS (roadside breath) test on request by an officer.  Oh, and obey all laws.  Additional terms of probation are up to the individual judge.  DUI Penalties California

Penalties- Second Offense

DUI Penalties California- Second Offense:  A second offense is a more serious charge than a first, but be reassured- unless there is something about your case that is special, you should not have to do jail time.  Almost all DUI penalties California Second Offense can be done in the Sheriff’s Alternative Work program.

  • Suspension of license:  Prior to January 1, 2011, any person who got two DUI convictions, or license suspensions, within 10 years suffered a one-year hard suspension.   That has changed.  Second offenders can now get a restricted license after a 90 day hard suspension provided that they install an ignition interlock device on their car.  So instead of waiting for one year to get a license, you can be back on the road in 91 days provided (a) you have proof of enrollment on file with the DV showing you are attending an 18 month DUI program, (b) you have an SR-22 (proof of insurance for three years), (c) you have an ignition interlock device (IID) installed on every car that you are driving.  The IID device will stay on your car for one year.
  • DUI School:  As noted above, all second offenders have to complete an 18 month Multiple Offenders Program.  This is not negotiable.
  • Sheriff Work Program:  Providing that you are placed on probation, the court is required to sentence you to a minimum of four days of work release.  How many days you actually do depends on the judge, the D.A. and the allegations in the police report (especially with reference to your BAC and your driving).
  • Fines:  Slightly more than a first offense.  Generally the fines for a second offense run around $2,000.  You can usually make payments of $75 a month with a small (usually $35) one-time processing fee.
  • Probation:  Three years court (informal) probation, if your case is not unusual.  Some counties, notably Monterey, will impose five years of informal probation in a second offender case.