Expungement is a method for cleaning your criminal record. When you do this, it re-opens your criminal case, dismisses the conviction, and then it re-closes the case without a conviction. So basically, you are no longer convicted of that crime. However, the case record will still exist, and the expungement will continue to appear on your record.

So you decide you want to expunge that old case that is diminishing your criminal report, and then you find out that your record cannot be found because it was “purged!” What does that even mean? In San Diego, in order to make room for new cases, courts have a system where after a certain time period, cases are either microfilmed, sent to off-site storage, or destroyed. When the case file is destroyed, it is no longer available for viewing and no information that the file existed, not even the case number, can be found in the courts’ database. This is a case that has been purged. Now you will have to go through a few extra steps before you can start the expungement process.

Before your attorney can start the expungement, they will need your case information. However, once your court file has been purged, you will need to submit a criminal record request to the Department of Justice (DOJ). ONLY YOU can request them and the DOJ’s report will only be sent directly to you.

This will require you to submit fingerprint images as well as pay a $25 processing fee to the DOJ. For the applicants that still live in California, you will need to fill out and submit the “Live Scan” form #BCIA 8016RR(see link below) on the California website. For people who no longer reside in California, you will need to print out form #BCIA 8075(see link below) and submit a manual fingerprint card. The DOJ’s address, necessary forms, as well as further instructions are posted on the California Government website: http://oag.ca.gov/fingerprints/security

Once you receive your criminal record, then you can begin the expungement process. At that point, contact your attorney of choice for help with filing the expungement.

Keep in mind that not all convictions can be dismissed. Expungement is limited to cases in which the defendant was sentenced to county jail time, probation, a fine, or a combination of those three. Additionally, the Penal Code prohibits certain types of convictions from being dismissed. Most of these exceptions involve serious vehicle code violations or sexual offenses against minors.

Also keep in mind that if you are still on probation, you would first have to file a petition to terminate probation. If that petition is granted, then you can file to get the conviction expunged.

However, if you find yourself eligible to get your convictions expunged, this could be beneficial to you, especially if you are looking for work. In California, employers cannot ask about any arrests that did not end in convictions.

The Law Office of William Daley is extremely well versed in the expungement and probation termination process. Feel free to call our office for a free 30 minute consultation at 619-238-1905.

Immigration Consequences, and a California DUI Conviction

A California DUI conviction has several legal consequences, including a drivers license suspension due to DUI and standard California DUI penalties.

Generally speaking, a standard first-time DUI conviction will not trigger immigration consequences. But a DUI causing injury, DUI of drugs, child endangerment charges (for driving while intoxicated with a child in the car), or multiple DUI convictions could all have serious immigration ramifications.

To help you make sense of all this, William Daley, a San Diego, California DUI defense lawyers will explain the following:

1. Overview of Immigration Issues

2. Whether a California DUI Conviction Could Result in Removal (Deportation) from the United States

3. Whether a California DUI Conviction Could Lead to Inadmissibility

4. A California DUI Conviction’s Impact on Adjustment of Status

5. A California DUI Conviction’s Impact on Naturalization

If you have any questions after reading this article or would like to discuss your case with a DUI defense or criminal defense attorney, please contact one of our law office.

You may also find helpful information in my related articles onCalifornia DUI Laws, DMV hearings in California DUI cases, DUI court process in California, California’s driving under the influence of drugs laws, Penalties in California DUI cases, Defenses to California DUI, DUI Field Sobriety Tests, California DUI blood test, and California DUI breath test.

1. Overview of Immigration Issues

The Immigration and Nationality Act (INA) contains a majority of the federal laws that govern immigration in the United States.  It covers topics ranging from how a foreigner can apply for and obtain a visa to enter the country, how long he can legally stay, how he might adjust his status to a legal permanent resident, and how he may naturalize.  The INA also governs what types of acts could make an alien inadmissible, deportable, denied adjustment of status, or ineligible for naturalization.

Today, there is one type of hearing, known as a “removal hearing,” to handle exclusion and removal.  Exclusion, otherwise known as inadmissibility, applies to aliens who are seeking entry (whether the first time or upon returning from a trip abroad). ¹  On the other hand, removal, otherwise known as deportation, applies to aliens already present within the country.  ²

Although the same proceeding is used for deportation and inadmissibility, the INA provides two separate lists of criminal acts that are grounds for the two actions.  One list specifies which types of crimes could render an alien deportable and another specifies which types of crimes could render an alien inadmissible.  ³  These lists sometimes overlap.

On the other end of the spectrum, the INA explains the requirements and factors involved in adjustment of status and naturalization.  Adjustment of status, otherwise known as obtaining a green card or becoming a legal permanent resident, entails a thorough review of the applicant’s history. One of the “threshold” issues is that the alien is admissible and eligible for a visa.  ⁴  In exercising discretion, the reviewer must take into account all positive and negative factors.  Positive factors include unification of the family, meeting the needs of an American business, and humanitarian reasons.

Naturalization, also known as obtaining citizenship, also involves a long and thorough process.  To even be eligible for naturalization, the applicant must satisfy the requirements of residency, good moral character, English and civics knowledge, and be attached to the United States Constitution.  ⁵  A criminal conviction is a large factor in determining good moral character.

2. Whether a California DUI Conviction Could Result in Removal (Deportation) from the United States

Section 237 of the INA contains a laundry list of offenses that upon conviction, would make an alien deportable.  A California DUI conviction could fall into three of the categories of deportable offenses:

• a crime involving moral turpitude,
• an aggravated felony, or
• an offense related to controlled substances.  ⁶

Crime Involving Moral Turpitude

Under Section 237, an alien is deportable if he commits a crime involving moral turpitude within the first five years after he is admitted (or 10 years if he is a legal permanent resident) and the crime carries a maximum penalty of at least a year of confinement.

The term “involving moral turpitude” is vague.  ⁷  The INA has not defined it, but courts have relied on the Board of Immigration Appeal’s interpretation, which defines moral turpitude as “a nebulous concept, which refers generally to conduct that shocks the public conscience.”  ⁸  This includes conduct that is inherently base, vile, or depraved and not acceptable for persons living in a society.  ⁹  Although one factor is whether the act is accompanied by a vicious motive or corrupt mind, “the presence or absence of a corrupt or vicious mind is not controlling.”  ¹⁰

Examples include fraud, murder, voluntary manslaughter, kidnapping, robbery, rape, aggravated assaults, spousal abuse, child abuse, theft, and incest.  ¹¹

In determining whether a conviction constitutes “moral turpitude,” the courts look to the statute under which the alien is convicted.  ¹²  The court focuses on whether the statute required the prosecution to show a culpable mental state, such as, knowledge, intention, or reckless conduct.  ¹³  For immigration purposes, the statute is all that matters; the factual circumstances of the actual crime are irrelevant.  ¹⁴

The Board of Immigration Appeals has held that simple DUI convictions are not crimes of moral turpitude because the statutes do not require any culpable mental state.  ¹⁵  Merely driving while you are under the influence of alcohol is enough for a DUI conviction and the BIA holds that more is needed to constitute moral turpitude.  ¹⁶

However, a California DUI conviction is a crime of moral turpitude if there is an aggravating factor, such as at the time of the DUI, the defendant was also driving on a suspended license or had a child in the car, resulting in endangerment.

Example:  In In re Lopez-Meza, the Board of Immigration Appeals held that an Arizona DUI committed while the defendant was driving on a suspended license was a crime of moral turpitude and the defendant was deportable.  The BIA focused on the fact that the defendant knew she should not have driven under any circumstance, but chose to, in addition to choosing to drink when she knew she was going to drive.  ¹⁷  In other words, the defendant was committing a DUI while she had knowledge that her license was suspended, canceled, or revoked.  ¹⁸  Such an act was against society’s moral standard and thus, was a crime of moral turpitude.
Example:  In Hernandez-Perez v. Holden, the Eighth Circuit Court of Appeals addressed whether an Iowa DUI conviction in addition to a conviction of child endangerment constituted a crime of moral turpitude.  In that case, the defendant, an undocumented alien, was found ineligible for cancellation of removal because he had been convicted of a crime of moral turpitude.  The defendant had been convicted of a DUI with child endangerment resulting in injury.  In deciding the defendant committed a crime of moral turpitude, the court focused on the statute of the child endangerment.  ¹⁹  Under Iowa law, a conviction of child endangerment required a showing that the defendant knowingly risked a minor child’s safety.  ²⁰  Thus, although the Iowa DUI statute alone was not a crime of moral turpitude, the aggravating factor of a conviction of child endangerment was enough to make the conviction a crime of moral turpitude.

Similar to the DUI statutes from other states, California’s DUI statute does not require a culpable mental state.  ²¹  Thus, the BIA will most likely not find a simple California DUI to be a crime of moral turpitude.  However, the California statutes for driving on a suspended license and child endangerment do require a culpable mental state.  ²²  Therefore, if you are an alien and are convicted of a DUI with these aggravating factors, you will most likely have committed a crime of moral turpitude and could be deportable.

Aggravated Felony

Section 237 of the INA also categorizes aliens convicted of “aggravated felonies” deportable.  Section 101(a)(43) of the INA name several crimes that constitute an aggravated felony.  ²³  One broad category of crimes listed in that section is “a crime of violence . . .  for which the term of imprisonment [is] at least one year.”  ²⁴

In the past, a DUI conviction was deemed a crime of violence and an alien with a DUI conviction would be deportable under the aggravated felony category.  However, this trend was reversed in 2004.

In Leocal v. Ashcroft, the United States Supreme Court determined a defendant’s conviction of DUI with injury under a Florida statute did not constitute “crime of violence.”  ²⁵  In coming to its conclusion, the Court reviewed and analyzed the definition of “crime of violence” in other federal legislation.  ²⁶  The Court found that for a conviction to constitute a “crime of violence,” the crime must include a mental state higher than “the merely accidental or negligent conduct involved in a DUI offense.”  ²⁷

Similar to the Florida DUI statute, California’s DUI statute does not require a culpable mental state.  ²⁸  Therefore, a California DUI conviction would most likely not constitute a crime of violence and would not be a deportable aggravated felony conviction.

Offense Related to Controlled Substances

If an alien is convicted of driving under the influence of drugs (DUID) under California law, he could be deportable if the drug he was using or under the influence of is listed in the Controlled Substances Act.

In order to deport an alien under this category, the government must show:

1. the “controlled substance” is regulated by the CSA, except a single offense of possessing for one’s own use 30 grams or less of marijuana, and
2. the DUID statute relates to a controlled substance.

In order to remove an alien under this category, the government must prove the controlled substance at issue is listed in the CSA schedules.  The California Vehicle Code defines “drug” broadly to mean “any substance or combination of substances, other than alcohol.”  In other words, a California DUID conviction could be based on a drug that is not listed in the CSA schedules.  ²⁹  Therefore, to remove an alien under this category based on a California DUID conviction the government must prove that the controlled substance at issue is outlawed by California law and federal law.  ³⁰

Example:  Jason, a non-citizen, is convicted for California DUID based on geometrical isomers, which are regulated by California law, but are not listed in the CSA schedules.  Therefore, Jason’s DUID conviction could not trigger the “offense related to controlled substances” category under the INA.  Jason would not be deportable.

The “relating to” language is construed broadly.  ³¹  An offense relates to a controlled substance if it is “specifically aimed at the regulation or prohibition of controlled substances.”  ³²  For instance, in Flores-Arellano v. INS, the Ninth Circuit held that a law regulating the use or being under the influence of amphetamine and methamphetamine is an offense related to controlled substances under the INA.  ³³ Since California’s DUID law is aimed at regulating the use or being under the influence of any drug that could impair a person’s driving abilities, a court would most likely hold that California’s DUID law relates to controlled substances.

In conclusion, if you are convicted of a DUID where the drug used is listed in the CSA, you will most likely be deportable.

3. A California DUI Conviction Could Lead to Inadmissibility

Section 212 lists the classes of aliens who are ineligible to receive United States visas or obtain admission into the United States.  A California DUI could make an alien inadmissible if it is:

• a crime involving moral turpitude,
• an offense related to controlled substances (as stated in the Controlled Substances Act),  ³⁴  and
• one of two or more convictions for which the aggregate sentences of imprisonment were five or more years.  ³⁵

A crime involving moral turpitude

As discussed above, a simple California DUI has been determined to not be a conviction of a crime involving moral turpitude because there is no required showing of a culpable mental state.  ³⁶  However, a California DUI with aggravating factors, such as driving on a suspended license or child endangerment, could constitute a crime involving moral turpitude.  ³⁷  If the California DUI does have these additional factors, then the alien would be inadmissible.

An offense related to controlled substances

Furthermore, as discussed above, a California DUID conviction is related to controlled substances under the INA only if it involves the use of a drug listed in the CSA.  ³⁸  Therefore, in order to find an alien inadmissible, the government must show that the underlying drug in a California DUID conviction is listed in the CSA.

Multiple convictions

A California DUI carries severe penalties, any of which could result in jail time.  If an alien has already served time for a prior conviction and is sentenced to serve more time for a California DUI conviction, he could be inadmissible if the total imprisonment is five or more years.  ³⁹

Example:  Joey, a non-citizen, has served 4 years for a prior offense.  He then gets convicted of a DUI, which involved driving at excessive speeds and causing an accident.  He is sentenced to the maximum one-year in county jail.  Now that Joey has been convicted of 2 offenses with an aggregate sentence of imprisonment of five years, he is inadmissible.

Exceptions

However, an alien is not inadmissible under these provisions if:

• the crime was committed when he or she was under 18-years-old and it occurred more than 5 years before applying for a visa or other documentation to gain admission into the U.S., or
• the maximum penalty for the convicted crime did not exceed one year of imprisonment and the alien was not actually sentenced to imprisonment for more than 6 months.  ⁴⁰

4. A California DUI Conviction Could Result in a Denial of Adjustment of Status

Section 245 of the INA governs how an alien can adjust his or her status to become a legal permanent resident.  In order to qualify, the alien must be eligible for a visa and admissible to the United States.  ⁴¹  Therefore, if the alien’s California DUI conviction causes him to become inadmissible, he cannot adjust his status.

As discussed above, a California DUI conviction would make an alien inadmissible if the conviction is found to be a crime involving moral turpitude, relates to a controlled substance, or is a second conviction with an aggregate sentence of imprisonment of five years or more.

A simple California DUI conviction is not a crime involving moral turpitude.  ⁴²  However, if the conviction involved aggravating factors, such as driving without a license or child endangerment, it could.  ⁴³  Furthermore, a California DUI conviction would relate to a controlled substance under the INA only if it was a drug listed in the CSA.  ⁴⁴  Lastly, a California DUI would result in a bar to adjustment of status if it is a second conviction and brings the aggregate period of imprisonment over five years.  ⁴⁵

5. A California DUI Conviction’s Impact on Naturalization

Section 316 of the INA contains the requirements for naturalization.  Among the requirements is that the applicant has and maintains good moral character.  ⁴⁶  In reviewing an application to naturalize, the Attorney General can review the person’s conduct from all time periods, but focuses on the five years preceding the application.  ⁴⁷  Thus, any criminal history, including a California DUI, could affect a person’s application to naturalize.

A single simple California DUI conviction would most likely not bar an applicant from naturalization.  In Ragoonanan v. USCIS, a federal Minnesota court addressed the specific question of whether a DUI conviction could bar naturalization.  ⁴⁸ The USCIS denied Ragoonanan’s Application for Naturalization (Form N-400) on the grounds that he failed to establish that he “has been and still is a person of good moral character” within five years of his application as required for naturalization.  ⁴⁹  However, the federal court overturned USCIS’s determination because it could find no law stating that a single DUI resulting in probation bars naturalization.  ⁵⁰  Federal courts in Texas have agreed with Ragoonanan and held that two DUI convictions did not bar the applicant from establishing good moral character.  ⁵¹

However, there is a limit.  In Rico v. INS, the court held that an applicant lacks good moral character when he has been convicted of five DUIs, a third-degree rape, and a finding that the applicant’s testimony lacked candor.  ⁵²

Contact us for help…

After reading this article, we hope you understand how much a California DUI conviction could affect your life, if you are a non-citizen.  Therefore, it is very important to consult an attorney if you are a non-citizen and are facing DUI charges.  If you have any additional questions or would like to discuss your case confidentially with a San Diego DUI defense attorney, please do not hesitate to contact us.

¹ Judulang v. Holder (2011) 565 U.S. __, __.)

² Ibid.

³ INA §§ 237, 212.

⁴ INA § 245(a)(2).

⁵ “A Guide to Naturalization,” U.S. Citizenship and Immigration Services, 18-21.

⁶ INA § 237(a)(2)(A)(i) ["Crimes of moral turpitude – Any alien who—(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable."]

⁷ Jordan v. De George (1951) 341 U.S. 223, 229-32 [noting the term "moral turpitude" is ambiguous, but not unconstitutionally vague].

⁸ Chu v. Cornell (9th Cir. 1957) 247 F.2d 929, cert. denied, (1958) 355 U.S. 892; see also Franklin v. INS (8th Cir. 1995) 72 F.3d 571, 573, aff’g, Matter of Franklin (BIA 1994) 20 I&N Dec. 867.

⁹ Matter of L-V-C- (BIA 1999) Interim Decision 594; Matter of Danesh (BIA 1988) 19 I&N Dec. 669; see also Rodriguez-Herrera v. INS (9th Cir. 1995) 52 F.3d 238; Grageda v. INS (9th Cir. 1993) 12 F.3d 919, 921.

¹⁰ Keungne v. U.S. Attorney General (11th Cir. 2009) 561 F.3d 1281, 1284 (per curium) [quoting In re Medina (BIA 1976) 15 I. & N. Dec. 611, 614].

¹¹ See 6 Charles Gordon, et al., Immigration Law and Procedure § 71.05[1][d] (rev. ed. 1999)

¹² Matter of Khourn (BIA 1997) 21 I&N Dec. 1041.

¹³ McNaughton v. INS (9th Cir. 1980) 612 F.2d 457, 459; Godinez-Arroyo v. Mukasey (8th Cir. 2008) 540 F.3d 848, 851.

¹⁴ Goldeshtein v. INS (9th Cir. 1993) 8 F.3d 645, 647.

¹⁵ In re Lopez-Meza (BIA 1999) Interim Decision 3423 [after reviewing immigration case law and Arizona's DUI law, determined that a simple DUI does not involve moral culpability because there is no culpable mental state requirement].

¹⁶ Cal. Veh. Code § 23152 ["Driving Under the Influence of Alcohol or Drugs – (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.  (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle."]

¹⁷ In re Lopez-Meza (BIA 1999) Interim Decision 3423  [holding a conviction of aggravated DUI involved moral turpitude because the statute required the prosecution to prove the defendant had knowledge she was driving on a suspended, canceled, or revoked license].

¹⁸ Id.

¹⁹ Hernandez-Perez v. Holden (8th Cir. 2009) 569 F.3d 345.

²⁰ Iowa Code § 726.6 [A person is guilty of child endangerment if he is "the parent, guardian or person having custody or control" over a minor child and "[k]knowingly acts in a manner that creates a substantial risk to a child or minor’s physical, mental, or emotional health or safety.”]

²¹ Compare Cal. Veh. Code § 23152 ["Driving Under the Influence of Alcohol or Drugs – (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.  (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle."], with, Ariz. Rev. Stat. Ann. § 28-692(A)(1) (1997) ["It is unlawful for any person to drive or be in actual physical control of any vehicle within this statue under any of the following circumstances:  1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance of any combination of liquor, drugs, or vapor releasing substances if the person is impaired to the slightest degree."]; and Iowa Code § 321J.2 ["Operating while under the influence of alcohol or a drug or while having an alcohol concentration of .10 or more (OWI) – (1) A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in any of the following conditions:  (a.) While under the influence of an alcoholic beverage or other drug or combination of such substances (b.) While having an alcohol concentration of .10 or more. (c.) While any amount of a controlled substance is present in the person, as measured in the person's blood or urine."]

²² Cal. Veh. Code § 14601 ["Driving When Privilege Suspended or Revoked-(a) No person shall drive a motor vehicle at any time when that person's driving privilege is suspended or revoked for reckless driving in violation of Section 23103, 23104, or 23105, any reason listed in subdivision (a) or (c) of Section 12806 authorizing the department to refuse to issue a license, negligent or incompetent operation of a motor vehicle as prescribed in subdivision (e) of Section 12809, or negligent operation as prescribed in Section 12810.5 , if the person so driving has knowledge of the suspension or revocation. Knowledge shall be conclusively presumed if mailed notice has been given by the department to the person pursuant to Section 13106. The presumption established by this subdivision is a presumption affecting the burden of proof."]; Cal. Penal Code § 273a ["(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.    (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor."]

²³ INA §101(a)(43) ["The term "aggravated felony" means – (A) murder, rape, or sexual abuse of a minor; (B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18); (C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18) or in explosive materials (as defined in section 841(c) of that title); (D) an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property deprived from specific unlawful activity) if the amount of the funds exceeded $10,000; (E) an offense described in (i) section 842 (h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); (ii) section 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924 (b) or (h) of title18 (relating to firearms offenses); or (iii) section 5861 of title 26 (relating to firearms offenses); (F) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at least one year; (G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year; (H) an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom); (I) an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography); (J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed; (K) an offense that—(i) relates to the owning, controlling, managing, or supervising of a prostitution business; (ii) is described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or (iii) is described in any of sections 1581–1585 or 1588–1591 of title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons); (L) an offense described in—(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18; (ii) section 421 of title 50 (relating to protecting the identity of undercover intelligence agents); or (iii) section 421 of title 50 (relating to protecting the identity of undercover agents); (M) an offense that—(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000; (N) an offense described in paragraph (1)(A) or (2) of section 1324 (a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter  (O) an offense described in section 1325 (a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph; (P) an offense -(i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter; (Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more; (R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year; (S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year; (T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; and (U) an attempt or conspiracy to commit an offense described in this paragraph. The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996."]

²⁴Id. § 101(a)(43)(F).

²⁵ (2004) 543 U.S. 1, 4.

²⁶ Id. at pp. 6-7.

²⁷ Id. at p. 11.

²⁸ Compare Fla. Stat. § 316.193 ["Driving under the influence; penalties – (1) A person is guilty of the offense of driving under the influence and is ubject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:  (a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired; (b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or (c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath."], with, Cal. Veh. Code § 23152 ["Driving Under Influence of Alcohol or Drugs – (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle."]

²⁹ Ruiz-Vida v. Gonzales (9th Cir. 2007) 473 F.3d 1072, 1078.

³⁰ Id. at 1076.

³¹ See Luu-Le v. INS (9th Cir. 1993) 224 F.3d 911, 915, abrogated on other grounds, INS v. St. Cyr (2001) 533 U.S. 289.

³² Coronado-Durazo v. INS (9th Cir. 1997) 123 F.3d 1322, 1325.

³³ Flores-Arellano v. INS (9th Cir. 1993) 5 F.3d 360.

³⁴ INA § 212(a)(2)(A)(i) ["In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of- (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.""]

³⁵ Id. § 212(a)(2)(B) ["Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement 2/ were 5 years or more is inadmissible."]

³⁶ In re Lopez-Meza (BIA 1999) Interim Decision 3423.

³⁷ Ibid.

³⁸ Ruiz-Vida v. Gonzales (9th Cir. 2007) 473 F.3d 1072, 1078.

³⁹ INA § 212(a)(2)(B).

⁴⁰ Id. § 212(a)(2)(A)(ii) ["Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed)."]

⁴¹ INA § 245(a)(2) [requiring the alien to be admissible to the United States]; Id. § 245(c)(6) [aliens who are deportable are ineligible to adjust their status]

⁴² In re Lopez-Meza (BIA 1999) Interim Decision 3423.

⁴³ Ibid.

⁴⁴ Ruiz-Vida v. Gonzales (9th Cir. 2007) 473 F.3d 1072, 1078.

⁴⁵ INA § 212(a)(2)(B).

⁴⁶ INA § 316(a) ["No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States."]

⁴⁷ Id. § 316(e) ["In determining whether the applicant has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicant's conduct and acts at any time prior to that period."]

⁴⁸ No. 07-3461 (D. Minn. Dec. 18, 2007) 2007 U.S. Dist. LEXIS 92922.

⁴⁹ Ibid.

⁵⁰ Ibid.

⁵¹ Cajiao v. Bureau of Citizenship and Immigration Servs. of the Dep’t of Homeland Sec., No. H-03-2582 (S.D. Tex. Mar. 30, 2004) 2004 U.S. Dist. LEXIS 29734; Yaqub v. Gonzalez, No. 1:05-cw-170 (June 5, 2006) 2006 U.S. Dist. LEXIS 36727.

⁵² (E.D.N.Y. 2003) 262 F. Supp. 2d 6.

When you are accused of a crime, you have rights. One of those rights is having a lawyer with you during the process – from questioning through the end of the trial – if you want one. If you don’t want a lawyer, you also have the right to represent yourself.

Called appearing “pro se” or “pro per,” representing yourself means that you must take the time to learn the law and do whatever a lawyer would do to protect your rights. Before making this decision, consider what it might mean.

Why People Represent Themselves

People choose to represent themselves for a variety of reasons. Some think they will be more successful than someone who doesn’t know the facts of their case as well. Others represent themselves because they think they won’t qualify for a no-cost, court-appointed attorney, but don’t want to hire one at their own expense. Still others simply don’t like or trust lawyers.

Representing Yourself Has Disadvantages

Criminal law can be difficult to understand. If you represent yourself, you’ll have to learn the law related to your type of case. You’ll also need to learn about procedures used in the courtroom – including picking a jury, questioning witnesses, preparing documents, and submitting evidence.

The prosecutor, representing the government whose laws you’re alleged to have broken, is likely to be experienced and knowledgeable about the law and criminal procedures. Faced with such an opponent, an unprepared pro se defendant can be at a distinct disadvantage.

Standby Legal Counsel

The judge will not give you legal advice, extra help or give you extra time simply because you chose to represent yourself. To give you access to legal advice while representing yourself, the judge may appoint a lawyer as advisory counsel or co-counsel. The lawyer acting as advisory counsel may write up documents, talk with the judge on your behalf, and be available in the courtroom to answer your questions.

Co-counsel may also work with you as a team in the courtroom. A judge who decides that you are not able to represent yourself competently may tell the lawyer to take over your defense.

A Criminal Lawyer Can Help

The law surrounding representing yourself pro se in a criminal case is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact us.

What happens when you get arrested for DUI with a child in your car?  What happens when you get Arrested for DUI and you injure someone?  To find the answers to these questions go to: http://lawofficeofwilliamdaley.com/san-diego-criminal-attorney/felony-dui-with-injury-child-endangerment

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California DUI Sobriety / Driver’s License Checkpoints

California DUI checkpoints are also commonly referred to as

• DUI / driver’s license checkpoints,
• sobriety checkpoints,
• drunk driving sobriety checkpoints, and
• DUI roadblocks.

California DUI checkpoints have become more and more common as the state cracks down on drunk driving. Drivers stopped at checkpoints and found to be impaired are generally charged with Vehicle Code 23152a VC driving under the influence and Vehicle Code 23152b driving with a BAC .08 or greater.

That said, when a driver is arrested for DUI at a checkpoint, it is often possible to fight the charges successfully. For one thing, police at checkpoints typically don’t observe any “bad driving” (such as weaving). Therefore they can’t prove that the person’s driving ability was really impaired.

Second, a savvy DUI defense lawyer can sometimes challenge the validity of the checkpoint itself. If this challenge succeeds, it typically means the whole case gets dismissed.

Fighting a DUI case stemming from a checkpoint

If the California DUI checkpoint does not adhere to very specific legal requirements, your charge may be dismissed.  Some of the most common California legal defenses that apply to sobriety checkpoints include:

• supervising officers were not present or in charge of the roadblock,
• there was no adequate warning of the upcoming checkpoint,
• there was no available route for a driver to drive away from the sobriety checkpoint, and
• the multitude of additional California DUI defenses  that are available to fight your California DUI charge because if you successfully fight the underlying DUI charge, the fact that the stop was at a checkpoint becomes irrelevant.

Penalties

The penalties for a California DUI conviction are virtually the same whether your arrest originates at a DUI / driver’s license checkpoint or somewhere else.  It’s the impaired driving that is being punished, not the manner in which you are caught.

That said, there is one difference.  If you are arrested at a checkpoint for driving without a license, your car will be impounded for 30 days, regardless of whether or not you were impaired.  This is the one penalty that distinguishes checkpoint arrests…and one that has generated quite a bit of controversy (discussed below in Section 3.1. The financial incentive behind driver’s license checkpoints).

In this article we explain the laws that regulate California sobriety checkpoints by addressing the following:

1. What is a California DUI Checkpoint?

2. The Rules and Regulations that Govern Sobriety Checkpoints

2.1. Supervising officers must be in charge

2.2. The sobriety checkpoint must be reasonably located

2.3. DUI roadblocks must be publically advertised

2.4. Drivers who do not wish to stop at the DUI checkpoint must be allowed to leave

3. California DUI / Driver’s License Checkpoints in the News

3.1. The financial incentive behind driver’s license checkpoints

3.2. Checkpoint publicity

If, after reading this article, you would like more information, we invite you to contact us at 619-238-1905.

1. What is a California DUI Checkpoint?

A California DUI checkpoint provides officers with a scheduled opportunity to screen drivers to determine whether or not they are under the influence.  This is one of the exceptions to the rule that an officer must have probable cause  to initiate a California DUI investigation. And while the politically correct “stated” purpose of a DUI checkpoint is to deter drunk drivers , we know better…it’s to arrest drunk drivers.

The law enforcement agency that is operating the checkpoint will section off a portion of the road so that drivers ultimately merge into one or two lanes before coming to a stop.  The officer asks the driver to roll down his/her window so that they can engage in a brief discussion.  This dialogue allows the officer to evaluate whether he/she believes the driver may be driving under the influence.

Specifically, the officer is looking to see whether or not the driver fumbles when asked for his/her license and registration, and whether the officer

• smells alcohol,
• observes any alcoholic beverages, drugs or drug paraphernalia in the vehicle, or
• observes slurred speech, red-watery eyes or any other signs of physical impairment.

If the officer believes that the driver is impaired, he/she will direct the suspect to an area to perform California DUI field sobriety tests “FSTs”  At that point, a typical drunk driving investigation will ensue.  At the conclusion of the investigation, the officer will immediately arrest the driver if he/she believes that the driver is driving under the influence of alcohol or driving under the influence of drugs “DUID” in violation of California law.

And not only is the officer looking to see if the driver fumbles when looking for his/her driver’s license, the officer is also checking to see if the driver has a driver’s license.  Drivers who are driving without a license in California or who are driving on a suspended or revoked California driver’s license may also be arrested.  This topic is further addressed in Section 3.1. The financial incentive behind driver’s license checkpoints.

But just because a driver is arrested at a DUI sobriety checkpoint…even if he/she actually was driving under the influence…does not mean that he/she will necessarily be convicted of the offense.

This is because experienced California DUI defense attorneys know that if the officers do not follow strict rules and regulations with respect to these checkpoints, any arrests that they make will be considered unlawful.  And if an arrest is unlawful, the subsequent charges will most likely be dismissed.

2. The Rules and Regulations that Govern Sobriety Checkpoints

In Ingersoll v. Palmer…the landmark DUI checkpoint case…the California Supreme Court ruled that sobriety checkpoints must adhere to specific requirements in order to be constitutionally recognized.

If they do not, your California DUI defense attorney may be able to have your DUI charges reduced or even dismissed.  These requirements relate to:

• who makes decisions with respect to the operation of California sobriety checkpoints,
• when and how DUI roadblocks are operated, and
• the intrusiveness to those stopped at a DUI checkpoint.

2.1. Supervising officers must be in charge

Supervising officers (as opposed to field officers) must determine where, how, and when California sobriety checkpoints will operate.  Supervising officers usually determine where these checkpoints will be held based on what areas have the highest concentration of DUI-related accidents and/or arrests.

This regulation also includes establishing the criteria for how cars will be stopped.  For example, the supervising officers must determine ahead of time whether field officers will stop every car, every third car, every fifth car, etc.

2.2. The sobriety checkpoint must be reasonably located

The location of the DUI roadblock must be reasonable.  This means that the sobriety checkpoint must be in a location where there is a high incidence of DUI-related accidents or arrests.  It also means that the supervising officers must consider everyone’s safety when choosing where to set up a sobriety checkpoint.

2.3. DUI roadblocks must be publically advertised

California sobriety checkpoints must be publically advertised prior to the date of the roadblock and clearly visible to approaching drivers.  With respect to advertising, law enforcement websites, local newspapers, and news stations often report the upcoming checkpoint about a week prior to its operation.

With respect to visibility,

• warning signs,
• flashing lights,
• adequate lighting,
• marked police cars, and
• the presence of uniformed police officers

typically satisfy this requirement.

2.4. Drivers who do not wish to stop at the DUI checkpoint must be allowed to leave

Perhaps one of the most interesting requirements is that you must have the opportunity to drive away from the checkpoint if you don’t wish to stop.  If you choose to exercise this right, you cannot legally be stopped for doing so unless you (1) commit a traffic violation, or (2) display signs of obvious intoxication.⁸

When I have a client who is arrested at a California DUI checkpoint, I not only investigate the charge that he/she was driving under the influence…by exploring all the ‘typical’ California DUI defenses…but I also critically examine the sobriety checkpoint itself to see if all of the legal requirements that relate to these DUI traps are satisfied.  When they are not, I may be able to use these fatal flaws to get the drunk driving case dismissed.

3. California DUI / Driver’s License Checkpoints in the News

DUI / driver’s license checkpoints are very controversial.  Proponents claim that they act as a scare tactic and reduce the number of drunk drivers on the road.  Opponents typically claim that they

• are a waste of money,
• inconvenience too many innocent people,
• don’t yield enough results, and
• that cops shouldn’t be able to bypass the probable cause that is otherwise necessary to conduct a criminal investigation.

Because this topic generates so much buzz, there always seems to be some issue relating to checkpoints in the news.  Here are a couple of the most recent.

3.1. Rules and restrictions

3.1. The financial incentive behind driver’s license checkpoints

Earlier this year, the University of California, Berkeley reported that in 2009, DUI / driver’s license checkpoints generated approximately $40 million in revenue that was split between local law enforcement agencies and their local towing companies.

Every time an individual is arrested at a California DUI / driver’s license checkpoint for driving without a license or for driving with a suspended license, the officers conducting the checkpoint immediately impound the driver’s car for 30 days.  It then costs, on average, between $1,000 and $4,000 to have the car returned.  The tow company splits this income with the city.

In 2009, about 24,000 cars were seized at checkpoints.  That was up from 18,000 in 2008 and 16,000 in 2007.

Opponents argue that these seizures unfairly target undocumented Hispanic immigrants who are not permitted to obtain driver’s licenses but who need cars for work.

Challengers also argue that these checkpoints are illegal and unconstitutional.  This is based on a 2005 Ninth Circuit Court of Appeal decision which held that it is an “unreasonable seizure under the Fourth Amendment to impound a vehicle if the only justification is that the driver is unlicensed”.

Yet in the five years since that decision, the number of cars seized at these checkpoints has doubled.¹¹  And opponents state that the reason why is obvious – money.

3.2. Checkpoint publicity

It bears repeating that California DUI law dictates that sobriety / driver’s license checkpoints must be publically advertised prior to their operation.  As a result of this requirement, many people, law firms, businesses, etc. share this information once it becomes available…it gives a “heads up” to those who are not “in the know”.

Oftentimes, this information is disseminated via the Internet, primarily on blog sites.  Most recently, it is being offered in a “Smartphone” application.  Some lawmakers were outraged and called attention to the issue, asking the creators of the “app” to take it off the market.  As a result of the media attention, sales went through the roof!

The fact remains that the public is entitled to this information, so unless the legislature intends to repeal this requirement, it should not matter how or where checkpoints are advertised.  That said, checkpoint publicity is sure to remain a hot topic.

California’s Process of Sealing and Destroying Arrest Records

Penal Code 851.8 PC

For innocent people who get wrongfully arrested, California has a process by which you can get your arrest records sealed and destroyed. When you succeed with this process, the police reports, fingerprints, booking photos and all records of the arrest get eliminated. Moreover, you may then legally answer “no” whenever you’re asked whether you’ve ever been arrested.

But the process to seal and destroy arrest records in California is arduous and tricky. It almost always involves a contested hearing before a judge. It pays to have a good attorney on your side.

I’m a former deputy Sheriff and retired U.S. Marine with decades of experience helping clients to clear their criminal records. I’d be glad to help you.

In this article we explain how to have your arrest records sealed and destroyed by addressing the following:

1. Who is Eligible?

2. The Process of Sealing and Destroying
California Criminal Records

3. The Benefits of Clearing Your
Criminal Record

If, after reading this article, you would like more information, we invite you to contact us at 619-238-1905.

1. Who is Eligible?

Let’s start off with the basics. If you

1. were arrested, but the prosecutor never filed criminal charges,
2. had your case dismissed in court, or
3. were acquitted by a jury following a California jury trial,

you may be entitled to have your California arrest records sealed and destroyed.

The critical factor is whether you suffered a conviction. If you did…and if you even later had it dismissed pursuant to Penal Code 1203.4 PC California’s expungement process…you are not eligible for this type of relief.

Similarly, this is not the appropriate motion to raise if you are trying to seek relief from your duty to register as a sex offender pursuant to Penal Code 290 PC. If you are required to register under Penal Code 290 PC, it means you have suffered a conviction. The appropriate remedy is to seek a Certificate of Rehabilitation or a Governor’s Pardon.

And it is important to note that a California motion to seal and destroy your arrest records is not a motion that applies to your entire criminal record. It is a motion that must be made and granted specific to each arrest that you wish to contest.

Timing issues

Generally speaking, you can petition to clear your arrest record up to two years after (1) the date of your arrest, or (2) the filing of the accusatory pleading, whichever is later. However, the judge has the discretion to hear cases beyond these time limits based on good cause.

2. The Process of Sealing and Destroying
California Arrest Records

The process of sealing your arrest record typically takes about 90 days. The county in which you live will determine whether you must personally appear in court for the proceedings or whether your criminal defense attorney can appear on your behalf.

Sealing and destroying California criminal records may be either a one or two-step process.

Step 1 – Petition the law enforcement agency for relief

If you were arrested…but the prosecutor never filed charges against you…your first step in seeking relief is to petition the arresting law enforcement agency. If you (or your criminal defense lawyer) can convince the police agency that you were factually innocent, the police themselves will seal the arrest record for three years. Once the three-year period has expired, they will destroy the records.⁴

If the police do not grant your request…or if they fail to respond within 60 days…you move on to the second step.

Step 2 – Petition the court

Once again, this second step is for those people who are denied relief by the police. However, this is the first and only step for those individuals who

1. had their cases dismissed in court after charges were filed, or
2. were acquitted by a jury.

And on that note, if…at the time of the dismissal…the judge believes the defendant is factually innocent, he/she may (with the prosecutor’s consent) grant the relief on his/her own motion. Similarly, if…at the time of the acquittal…the judge believes the defendant is factually innocent, he/she may simply order the records sealed and destroyed.

What does “factually innocent” mean?

In order to declare you ‘factually innocent’, the arrest record must exonerate you, not merely raise a substantial doubt as to your guilt.

And according to the California Court of Appeals, a finding of factual innocence shall not be made unless no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. “‘Reasonable cause’ is defined as that state of facts that would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime”.

The burden to prove factual innocence is on the defense

Assuming that the judge does not initiate the motion…and you must petition the court for the requested relief…the burden is on you to establish that there was no reasonable cause for your arrest. And…unlike the strict rules of evidence that govern a jury trial…California law allows the judge to consider a wide variety of evidence when ruling on this issue.

The court may evaluate police reports, affidavits, and any other evidence which is “material, relevant, and reliable”. This even includes evidence that the court previously suppressed pursuant to a Penal Code 1538.5 motion to suppress evidence, as well as any facts that were disclosed after your arrest.

If you meet your burden, it then shifts to the prosecution. If they wish to challenge your motion to seal and destroy your records, they must prove that reasonable cause did, in fact, exist.¹¹ And both sides are entitled to appeal the court’s ruling.

The importance of hiring a skilled California criminal defense lawyer

Because the judge has so much discretion in deciding whether to grant or deny your motion to seal and destroy your California arrest records…and because the judge can deny your motion with prejudice so that you may not re-file your request…it is critical to hire a skilled California criminal defense attorney.

An experienced attorney will

• thoroughly      research your case,
• make      sure all paperwork is done correctly the first time to ensure that no time      is lost due to incomplete or inadequate forms,
• conduct      the hearing and argue your case to the judge, and
• help      you contact potential employers to let them know that you are making      legitimate efforts to clear your criminal record.

When the police or judge agree to clear my criminal record, how are my records destroyed?

When your California records are declared “sealed and destroyed”, the arresting law enforcement agency, Department of Justice, and any local, state, or federal law enforcement agency to which they have released records must

1. destroy      the arrest records, and
2. destroy      the request to destroy those records.

This means that these agencies must permanently obliterate “all entries or notations upon the records pertaining to the arrest, and the record shall be prepared again so that it appears that the arrest never occurred.” If the only entries on your record pertain to the arrest in question, then that document will be physically destroyed.

That said, if you or a codefendant files a civil lawsuit against the officer or law enforcement agency that made the illegal arrest alleging police misconduct or a United States Code 1983 civil rights violation, the records will not be destroyed until the case is resolved. This allows the otherwise “sealed” records to be “reopened” and admitted into evidence during the civil case.

Sealing juvenile records is a different process

Sealing and destroying your adult arrest records is a completely different process than sealing your juvenile records. You are eligible to seal your California juvenile criminal record if you are

1. currently      an adult, or the jurisdiction of the juvenile court terminated at      least five years ago, and
2. as an      adult, you have not been convicted of any crimes of moral turpitude (that      is, crimes that involve dishonesty or immoral behavior), and
3. there      is no pending civil litigation based on the juvenile incident.¹⁶

For more information about sealing your juvenile record, please review our article on sealing California juvenile records.

3. The Benefits of Clearing Your Criminal Record

Criminal records are public records. This means that anyone can access another person’s criminal history. And numerous private companies have made this information readily and easily available for a nominal fee to anyone who can provide a name and date of birth.

Prospective employers, state licensing agencies, insurance companies, etc…anyone who is interested in your criminal history…can simply run a background check and see your spotted past. Police reports, booking photos, fingerprints…these records don’t just go away. The arresting agency and Department of Justice maintain these records indefinitely unless and until you take the appropriate steps to have them destroyed.

And don’t be fooled…the fact that your arrest didn’t lead to a conviction most likely won’t win you any favor.

The fact is that any criminal history…whether it’s merely an arrest or even an acquittal…will prejudice people against you. And this is particularly hurtful in today’s tough economy and job market where it is more difficult than ever to secure employment.

Clearing your record allows you to say you’ve never been arrested for a crime

That’s right. The major benefit of sealing and destroying your criminal record is that when asked, you can legitimately and honestly state that you’ve never been arrested for a crime. This is particularly important, because many employment, school, housing, loan, and licensing applications don’t just ask if you’ve ever been convicted of a crime, but ask if you’ve ever been arrested for a crime.

When a judge orders your records to be sealed and destroyed, that is exactly what happens. All evidence of your criminal arrest is destroyed so that there is no record of it.

Once granted, California law provides that “the arrestee is thereby exonerated. Thereafter, the arrest shall be deemed never to have occurred, and the person may answer accordingly any question relating to its occurrence.”

Punishment, Penalties, and Sentences for California Misdemeanor DUI

California DUIs are “priorable” offenses. This means that the punishment increases with each successive drunk driving conviction that takes place within a ten-year period. This ten-year timeframe period also includes (1) California “wet reckless” convictions, and (2) out-of-state convictions that, if committed in California, would constitute a DUI.

California DUI penalties can be severe, depending on whether you’re facing your first, second, third, or subsequent driving under the influence conviction. Most drunk driving cases are prosecuted as misdemeanors, although certain offenses will rise to the level of California felony DUI.

Although there are a few charges that are commonly reduced from California DUIs during DUI plea bargaining (for example, a “wet” reckless, dry reckless, or exhibition of speed), this article specifically details punishments and penalties that are for actual driving under the influence convictions.

If after reading this article you have more questions or would like to discuss your case with a DUI defense attorney, we invite you to contact us.

Punishment and Sentencing for a Misdemeanor California DUI — First Offense

When convicted of driving under the influence for the first time, the potential penalties are as follows:

Informal (otherwise known as “summary”) probation for five years

Up to six months in a county jail

Between $2,000-$3,000 in fines

A three- or nine-month court-approved alcohol and/or drug education program (AB541 class),

A six- to ten-month driver’s license suspension that generally may be converted to a “restricted license”. A restricted license enables you to drive during the course of your employment, and to and from work, school, and/or California DUI school.

Please note that once you are arrested for any California DUI, you only have ten days to request a DMV hearing from the California Department of Motor Vehicles. This request postpones your license suspension until the resolution of the hearing and may even result in your license suspension being set aside.

If you hire a California DUI attorney within that ten-day period, he/she can request the hearing for you…and represent you at the hearing.

Penalties and Punishment for a Misdemeanor California DUI — Second Offense

A second driving under the influence conviction within ten years will trigger the following sentence:

Three to five years of summary probation

A minimum of 96 hours to a maximum of one year in a county jail

Between $2,000–$3,000 in fines

Completion of an 18-month or 30-month court-approved California DUI school

A two-year driver’s license suspension that, after twelve months, may be converted to a restricted license

Penalties and Sentencing for a Misdemeanor California DUI — Third Offense

If you are convicted of drunk driving for a third time within ten years, you face the following California DUI punishment:

Between three to five years of informal probation

A minimum of 120 days to a maximum of one-year in a county jail

Between $2,000-$3,000 in fines

Completion of a 30-month court-approved DUI education program

A three year California driver’s license revocation which, after 18 months, may be converted to a restricted license

Designation as an “habitual traffic offender” (HTO) by the DMV

Installation of an Ignition Interlock Device (IID). An IID is a mini breathalyzer instrument that attaches to your car that does not allow your car to start unless you provide an alcohol-free breath sample.

Additional “Conditions of Probation” for California DUI

In addition to the above stated penalties, when California courts impose a DUI sentence that includes probation, the following conditions are always included:

You shall not drive with any measurable amount of alcohol in your blood.

You shall not refuse to submit to a chemical test of your blood, breath, or, in rare cases urine, if arrested for a subsequent DUI.

You shall not commit any additional crimes.

Depending on the circumstances, the following conditions of probation may be imposed:

Attendance in Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings

Participation in the Mothers Against Drunk Driving (MADD) Victim Impact Program

Restitution (in the event that you caused an accident while driving under the influence)

Installation of an Ignition Interlock Device (IID) on any car you own or operate for a maximum four-year period. If you are convicted of your DUI in Los Angeles, Alameda, Tulare or Sacramento County, IID installation is mandatory. However, in all other counties, installation is at the judge’s discretion

Aggravating Factors that may Increase Your California DUI Sentence

There are facts and circumstances that, if present at the time you are arrested for driving under the influence, will increase your county jail or state prison sentence. These aggravating facts will increase your DUI penalties, regardless of whether you’ve been convicted of a first, second, third, or subsequent DUI.

The most common of these include:

Having a blood alcohol content (BAC) of 0.15% or higher

Refusing to submit to a chemical test

Causing an accident

Driving at excessive speeds

Having children under the age of 14 in the car (also known as Penal Code 273a child endangerment)

Being under 21 at the time of your DUI offense

What type of enhanced penalty you receive for any of these aggravating factors will depend on (1) the exact circumstances of your California DUI arrest, and (2) your criminal history (with emphasis on your prior DUI history).

Are There Alternative Sentencing Options for a California DUI?

“Alternative” sentencing options are alternatives to a county jail or California State Prison sentence. When imposed in connection with a California DUI, these sentencing alternatives may include:

Cal-Trans roadside work

Community service

Electronic monitoring or house arrest (SCRAM)

Residence in a sober-living environment

Incarceration in a private or city jail

Lawyers who don’t specialize in California DUI defense may not even know that these sentencing alternatives exist…and if they do, they may not know the most effective ways to convince the prosecutor and/or judge to agree to them. This is just one reason why it is so important to hire specifically a DUI defense lawyer to defend your California drunk driving case.

Hiring an experienced DUI attorney to represent you in court and at your DMV hearing is invaluable to helping you avoid the harsh penalties that can flow from a California DUI conviction.

A couple of changes for Criminal Laws in California for 2013.

Amendment of California penal code sec 236.1. This means that there will be more severe penalties for people who are found guilty of engaging in certain sex crimes with minors for example filming a minor’s face for commercial purposes. Even if the convicted person had mistaken about the minors age for example if the minor had presented faked identification documents to show that she is an adult, the convicted person cannot use ignorance of that part as a defense to his case. This law is likely to put many unsuspecting people behind bars in 2013.

A part Penal Code 1170.2 “three strike law” will be repealed in 2013. It is important to note that there are over 8,000 Californians who are serving life sentences after committing the third strike. This new law ensures that for one to be sentenced from the third crime, then this crime must be a serious felony and not just any small crime such as shop lifting. This law will also make it possible for people who have been wrongfully incarcerated to appeal their case which could result in the reduction of their term in jail.