Wondering how to clear DUI record after your DUI case is dismissed or expunged? After you win your case, what happens when someone is found not guilty of DUI, wins a set aside in court, or DUI charges are dropped altogether? How do they clear their arrest record? What effect does an expungement have?
If you’ve been arrested for DUI, every detail of your arrest, including your mugshot, are instantly made public. The world of social media and online publishing of mugshots makes it especially challenging today for the innocent to clear their records of false arrest or post-DUI arrest in particular. It’s tantamount to trying to put the genie back in the bottle. Even if you are cleared of the crime, your clean record may still pay a price. [Read a recent 1.800.NoCuffs actual client DUI Case Dismissed result here.]
How to clear your record of a DUI Arrest
We asked celebrity criminal defense attorney and founder of 1.800.NoCuffs Darren Kavinoky what happens when someone who is found not guilty of DUI, wins a set aside in court, or charges are dropped altogether. How do they clear their name? Do they still have to check yes in the “have you ever been arrested” box? What happens at the DMV with your driving record? What is an expungement? Can you send a cease and desist claim to a news outlet or website demanding they remove your “mug” shot?
[Download the 1.800.NoCuffs California Legal Guide Free eBook here.]
Q&A With Darren Kavinoky
QUESTION: In a DUI case, is a set aside a win?
DARREN: “In the world of the DMV, a set aside means we win in a DUI case. In the world of the court, we would take the same bad stock fruit of the poisonous tree and that would be the grounds or the basis for a motion to suppress evidence under Penal Code Section 1538.5.”
QUESTION: Then is your record cleared if the DUI case is dismissed? Or does it sit on your record?
DARREN: “Yes, it actually shows up that you were arrested unless you get a finding of factual innocence under Penal Code Section 851.8. Once somebody is arrested unless that is deemed to be a detention only or there is some other relief that is granted such as under Penal Code Section 851.8, it’s forever on your record. Most people assume that if you’re arrested but not convicted, you’re cool. The truth is that if you’re arrested and not convicted and you don’t take some affirmative steps to clean that up, then in some cases it will show up. For instance, if you’re in a position that requires a security clearance or the department of real estate is doing a background check because you want to be a broker or whatever job you’re looking to get, any of those kinds of circumstances, it will show up.”
QUESTION: Do you have to report “Yes, I’ve been arrested” on those applications? Is this different than an expungement?
DARREN: “Correct. An expungement would show that the conviction has been withdrawn and a judgment of not guilty entered and the complaint against you dismissed. As a matter of fact, on an expungement, typically you can truthfully check the box “No” on the “Have you been arrested” question after the expungement. There are exceptions to that and they are outlined in Penal Code Section 1203.4 themselves. The exceptions are if you are applying for state licensure, the conviction that was expunged would still have to be disclosed. If you are applying for a job as a peace officer, it still has to be disclosed. If you’re entering into a contract with the California State Lottery Commission it has to be disclosed. Look at Penal Code Section 1203.4 and it gives you these exceptions.”
QUESTION: Does it stay a point on your record with the DMV?
DARREN: “No. You do not get points on the DMV unless you are convicted of something. But if you are convicted of a DUI and then you get it expunged, the expungement does not erase the points. The points will stay on your record.”
QUESTION: Does an expungement clear your record forever?
DARREN: “Even if you expunge a DUI, DUI’s remember are priorable for a period of 10 (ten) years, so let’s say you get arrested for DUI and you are placed on probation for 3 (three) years, and then you get it successfully expunged. Two more years go by and you get arrested for DUI again. That expunged DUI will be revived legally, and your new DUI arrest will be your 2nd offense. So an expungement isn’t a permanent eraser but is hugely important primarily for people who are in a licensed profession. Their license can get horribly mangled or they will be professionally disciplined based on the arrest and the conviction.”
QUESTION: Today there are dozens of websites where mugshots and arrest records with the date of birth and other personal details are made public nearly instantly. Do you have a recourse if you are found innocent? Can you get your mugshot deleted?
DARREN: “You can under Penal Code 851.8, it is a finding of factual innocence, which will result in the sealing and destruction of all records relating to your arrest. If you get the relief under 851.8, it’s as if the arrest never occurred and everybody has to update their records. The law enforcement agency actually has to shred your reports, your booking photo goes away, it is gone. Now if somebody has put that out on the internet, and you’ve got this court order, I would feel comfortable as a lawyer enforcing that court order and telling that person, “Hey website owner, you better take this down or you’re going to be in violation of this lawful court order and get ready to be sued.”
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