Post-Conviction Relief and Expungement

If you’re like many people, you may mistakenly believe that nothing can be done to minimize the damage of a DUI conviction on your record. However, it may be possible to clear your criminal record through a process known as post-conviction relief.

There are several forms of relief that are available, depending on the circumstances of your case.  The most frequently encountered are:

• Sealing and Destruction of Juvenile Records;
• Finding of Factual Innocence, and Sealing and Destruction of Adult Arrest Records (Penal Code section 851.8);
• Expungement in cases where probation has been granted (Penal Code section 1203.4);
• Certificate of Rehabilitation;
• Governor’s Pardon

California has passed new laws that change the way expungements are handled by the courts. In the past, you could have a California criminal conviction expunged simply by meeting certain requirements and petitioning the court. It is at the judge’s discretion to decide whether expunging your conviction serves the interests of justice.

Your post-conviction relief options depend on the charge and the sentence you received. California criminal offenses are categorized in one of three ways: 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,” which are offenses that can be prosecuted as either misdemeanors or felonies.

If you’re still on probation, you’re unlikely to obtain any kind of post-conviction relief. However, an experienced California criminal defense attorney 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, and all other conditions of probation must be fulfilled, in order for the court to grant an early termination of probation. In addition, the attorney must provide the prosecution no less than 15 days notice of the motion by serving the prosecutorial agency.

Once probation has ended, your attorney can request that the court reduce a felony to a misdemeanor. 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. An 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. Individuals who have been sentenced to state prison are ineligible for an expungement on that specific case.

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