DUI Defender

A bill awaiting Governor Schwarzenegger’s will significantly alter the landscape of DUI convictions and, I predict lead to more jury trials. AB 645 will change the penal code regarding “expungement” from providing for a mandatory record clearance at the successful completion of probation, to making it discretionary. This dramtically changes the options available to a person facing a DUI or a “wet” reckless, as they are not entitled to an expungement after successful completion of of their probation.

In the past, a person, upon pleading guilty, no contest or being found guilty by a jury had the option of petitioning the sentencing court for an expungement. An expungement was a legal fiction that essentially allowed the court to change the conviction to a finding of not guilty. While it didn’t remove the prior conviction from the person’s criminal record (it could still be used as a prior conviction for enhancement purposes) it allowed a person to state, lawfully, that they had not been convicted of a crime in certain situations. A person who received an expungement still had to admit the conviction when applying for any government issued license or permit if the application specifically stated that expunged or sealed records must be admitted, but for the most part it allowed a person in private business to deny any criminal past. This was an approach that many younger people took, they could admit their wrong doing, successfully complete probation, suffer through three years of bad jobs, no raises or promotions, or any other punitive measure an employer might choose for an employee convicted of DUI or a “wet” reckless, then petition for an expungement, quit their job and move on to a normal, productive life. This essentially prevents that option, I anticipate that more people who might have “sucked it up” will now take their chances at trial since it is a winner take all forum.

This represents yet another action by the State of California to change the plea “bargain” agreements it enters into with citizen’s in the criminal justice system. A few years ago it changed the “look back” period from 7 years to 10, this resulted in many persons who thought that they had moved on past the 7 year period to be charged with prior convictions despite the agreement with the State that the prior would only count for 7 years. I know of at least one person who’s insurance rates were raised when the law changed and the DUI appeared on his record, again.

The simple fact is that if you can’t count on the State honoring its agreements, you have to go to trial.

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