Felony DUI Expungement - California DUI Law and Legal Information

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California drivers convicted of Driving Under the Influence (DUI), or Driving While Intoxicated (DWI) fear that criminal convictions will brand them throughout their lives. However, many criminal convictions can be stricken from the record through the post-conviction relief process. A California criminal defense attorney with experience obtaining expungements can address felony criminal convictions.

Drunk driving felonies fall into two categories - those that resulted in a state prison sentence, and those that led to time in county jail or some other form of punishment. Each felony must be approached differently if the expungement is to be successful.

Felonies that led to a state prison sentence can be expunged in one of two ways - with a certificate of rehabilitation and pardon, or through a direct application to the governor.

If the individual can prove that he or she has led an exemplary life for a specified period of time, and has been completely rehabilitated, a certificate of rehabilitation and pardon may be available. The individual must have been a resident of California for at least three years to submit a petition. If the certificate is granted, it is then forwarded to the governor, who will consider whether to grant the offender a pardon. Both the court and the Governor's Office may require an investigation of the defendant's conduct both in prison and after release.

Appealing directly to the governor is another avenue in seeking expungement. This approach can be used by individuals who ineligible for a certificate of rehabilitation, particularly out-of-state residents. In order to be considered for a pardon, the individual must be off probation or parole for more than 10 years, except in extraordinary circumstances. The petitioner must demonstrate that he or she has been completely rehabilitated and led an exemplary life during that period.

To expunge felonies that did not result in a prison sentence, a California criminal attorney asks the court that handled the case originally to set aside the conviction in the interest of justice. If the court grants the petition, the offender is allowed to withdraw the original plea of guilty or no contest, and enter a plea of not guilty. If the conviction stemmed from a jury decision, the jury's verdict is set aside.

This approach can be used only to expunge offenses known as "wobblers" - crimes that can be charged as either felonies or misdemeanors, but typically are charged as the more serious offense. An experienced criminal defense lawyer can often persuade the court to reduce a felony wobbler to a misdemeanor.

Once the process is complete, the court notifies the Department of Justice, and the offense is treated as a misdemeanor in nearly all respects, with a few exceptions. If the individual is arrested on a similar offense within 10 years, the prior conviction will be treated as a felony and will result in increased punishment for the later offense. Also, the individual will not have the right to possess firearms, because federal gun statutes eclipse state laws.

If the offender is facing a new charge, in jail or prison, has a warrant out for his or her arrest, has not paid court or DMV fines in full, or is still on probation, an expungement will not be granted. However, an experienced California criminal defense attorney may be able to persuade the court to end probation early, so that the individual can begin the process of expunging his or her record.