If you are still on probation after a DUI, unfortunately:
A. You cannot yet expunge/dismiss your DUI conviction under Penal Code Section 1203.4, and
B. If requested by a California peace officer, you have to submit to blowing in a hand-held breath test gadget or breath machine in order to determine if you are driving with a measurable amount of alcohol in your system (.01% BAC or more).
– Not being to expunge/dismiss a drunk driving case can mean adverse consequences at work, school or elsewhere.
– Losing your license for 1 year if you blow .01% (unless your attorney prevails at the DMV hearing) would be a severe blow to your mobility, certain employment opportunities and other liberties.
1) First, gather all relevant information:
2) Determine if it time to bring the Motion to Terminate Probation or not.
You generally need to be at a certain point in your probationary period before San Diego judges will seriously entertain granting your DUI attorney’s motion to terminate probation.
This is usually recognized as a half-way or 3/5ths point, meaning you can try 3 years after a VC 23152 conviction date or 1 1/2 years after a VC 23103(a) per 23103.5 conviction date.
So, if you are on probation for 5 years, you typically add 3 years from the date you were placed on probation, i.e. the conviction date. With a good reason, you can try a motion to terminate.
If you were placed on probation for 3 years, you are eligible to file a petition to dismiss (expunge) after the 3 years as long as you timely and successfully completed all terms of probatin.
The conviction date can easily be found on your final (8 1/2 by 14 inches) court papers often called “MISDEMEANOR – DUI/TRAFFIC JUDGMENT MINUTES.”
You can visit your particular San Diego county court location to get a copy of it if you did not keep a copy. The Clerk’s Office can look up your case number by your name and date of birth.
As long as you have done everything ordered in a timely manner, probation continued and was not revoked. If not, and probation was revoked, the total probationary period is extended for the time your probation was revoked.
3) Determine why you definitely need to be off probation.
Employment-related opportunities is a common reason. Documentation or a letter from a prospective employer would be helpful. It must be shown that you must be off probation. Your sworn statement (a Declaration) will be required.
4) Provide this information to a San Diego DUI lawyer.
He or she can then prepare, file, serve, calendar and appear on a “Motion for Early Termination of Probation” aka a “Motion to Terminate Probation.”
It normally takes 1 month (or a little longer) in order for your San Diego DUI criminal defense attorney to have this motion decided by a judge or commissioner, depending on the court calendar.
Once you’re off probation, your lawyer can file a petition to dismiss or expunge your DUI conviction. See how.
If you think you are ready to proceed, you may contact San Diego Attorney Rick Mueller at Rick@SanDiegoDUI.com with the relevant information.