How to Expunge a DUI Expunged in San Jose, California

Every State in America has tough laws to discourage driving while under the influence of alcohol, and California is no exception. Driving Under the Influence (DUI) is a criminal offense. Depending on the circumstances, a driver may be charged with either

California DUI Law - Evidence

There are three conditions under which a police officer may stop a motorist for Drunk Driving (DUI):

  1. The driver must be displaying symptoms of DUI, either while stopped at a roadblock or sobriety checkpoint;
  2. The officer has observed the driver in the act of committing a different crime.
  3. The police receive an anonymous tip.

The symptoms of Drunk Driving are:

  • Weaving
  • Drifting between lanes
  • Driving too slowly
  • Braking too quickly

A driver may also be investigated for DUI if he is pulled over for a minor traffic infraction (busted taillight, speeding) and the officer observes DUI symptoms.

In court, the District Attorney's office must prove that the individual was under the influence of alcohol at the time of arrest, not an hour later at the Police Station. The legal limit for blood alcohol concentration (BAC) in California is

  • 0.08 per cent.
  • For commercial vehicles, this drops to 0.04 per cent.
  • For drivers under the age of 21, the level is 0.01 per cent. 

California DUI - Misdemeanor or Felony?

Most first, second and even third DUI offenses are charged as misdemeanors. The penalties for Felony DUI are much more severe than for misdemeanors. A driver may be charged with Felony DUI if:

  • They are involved in accident while DUI
  • They kill or injure another person
  • It is their fourth offense within 10 years

DUI Penalties in California

First offense

  • Jail: 4 days to 6 months
  • Fines and Penalties: $1400 to $2600
  • License Suspension: 30 days to 10 months
  • Interlock ignition device (some counties)*

Second offense

  • Jail: 10 days to 1 year
  • Fines and Penalties: $1800 to $2800
  • License Suspension: 2 years (may be reduced to one year)
  • Interlock ignition device (all counties)*

Third offense

  • Jail: 120 days to 1 year
  • Fines and Penalties: $1800 to $18000
  • License Suspension: 3 years
  • Interlock ignition device (all counties)*

*An Interlock Ignition Device (IID) is like a breathalyzer that is connected to a car's ignition system. Before starting the car, the driver must first blow into the device. If the IID detects a BAC under the legal limit, the car will start. Otherwise, if the BAC is over the legal limit for driving, the car will not start.

A person convicted for their first offense of a DUI in San Jose, California, is unlikely to be required to install a IID. San Jose is located in the County of Santa Clara, which is not one of the few counties in the state that require a IID following conviction of a first offense DUI.

Expunging a DUI in San Jose, California: California Penal Code Section 1203.4

Having a criminal record in the form of a DUI conviction, whether a misdemeanor or a felony, can have a serious negative impact on a person's future. It may impair their ability to get a decent job, to join the armed forces or attend the college or university of their choice. It may even prevent them from visiting a foreign country. Canada is an example of a country that will not permit the entry of an individual with a DUI conviction.

In some situations, post-conviction relief may be available. This may take the form of expunging a DUI in San Jose, California. While this does not mean the conviction will be removed from the criminal record, it does mean that it will not be visible during a routine check for employment. Also, it does not need to be declared on a job application. Special strict conditions must be met for this to occur.

Factors that are considered in the decision whether or not to grant an expungement are:

  • Whether the defendant was under 21 or an adult at the time of conviction;
  • Whether the offense was a misdeanor or a felony;
  • Whether probation was granted
  • Whether a custodial sentence was mandated.

Circumstances in which an expungement may not be granted if the offender:

  • is currently serving time for another offense;
  • has a criminal charge pending;
  • is still on probation for the offense they wish to have expunged.

However, once all fines and restitution are paid in full, the offender may petition the court for early termination of their probation. This will enable them to request an expungement. The court must agree that the driver's good conduct and reform are sufficient to justify early termination of probation and that justice would be served.

Procedure for having the conviction expunged

If the expungement is granted by the court, the offender may withdraw their previous plea of 'guilty' or 'no contest' and change their plea to 'not guilty'. If the defendant had been found guilty by a jury, that verdict is then set aside. The court will then notify the Department of Justice.

To compare California DUI law with other states, please visit:


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carol roach
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Posted on Apr 20, 2012