DUI and Misdemeanor Convictions

How To Get An Arrest or Conviction Expunged in California

There is a lot of misinformation out there about the expungement process. For example, the DUI ten-year expungement rule is a lie. A lot of people believe that they cannot get a DUI expunged until ten years after their conviction, or they believe that the DUI falls off of their record automatically after ten years. Both beliefs are wrong. You can actually get a DUI expunged as soon as you are off of probation. For some people that’s as early as three years or sooner if you can get your probation terminated early, more information on that later. As for the DUI falling off your record automatically, that used to be false, but due to some changes in California law, that may now actually be true, but it’s a much shorter time than ten years.

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So then, how do you get a DUI or other misdemeanor conviction expunged in California? The answer is actually really easy…do nothing… Well, sort of at first. I know that doesn’t make sense, but due to the changes in California law that is the way it works now, provided you meet a few criteria. In theory, most misdemeanor convictions should be automatically expunged once you are done with all the court requirements and you serve your term of probation. However, given that the expungements are handled by a government agency, it is not uncommon for people to get missed or for them to not qualify due to a little issue. An experienced expungement attorney can help make sure your expungement goes through and, if you get missed, make sure your expungement motion is heard by the court. 

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Note: Below is all of the technical information, if you do not want to read it, you can skip to “What To Do” to see step-by

step plans for getting your DUI or other misdemeanor conviction expunged.

History and the Law

First, to clarify, you actually do not get a conviction expunged in California, you get it dismissed. I know there really isn’t a difference in the end, it’s just a choice of wording, but that is how California defines it. Also, you do not get your arrest record expunged, but you get the record sealed. Here again, it’s the same idea, but just a different word choice.

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Back in October of 2019 Governor Newsome passed the Clean Slate Act (AB 1076 which was codified in PC 1076). Before this act went into effect on January 1, 2021, any person who finished all their terms of probation, and was not currently serving any terms for a different offense, could withdraw their guilty, or no contest plea, and enter a plea of not guilty on convictions they plead to. The judge would then dismiss the case. 

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After the Assembly Bill passed, the Department of Justice was required to review records in the statewide criminal justice database on a monthly basis and grant relief to eligible persons without requiring a motion to petition. The Department of Justice would then send notice to the superior court having jurisdiction over the criminal case that relief was granted. The prosecuting agency or probation department would then have 90 days to file a petition to prohibit the department from granting automatic relief. To qualify for this automatic relief, the conviction had to be a misdemeanor or a felony punishable by county jail.

Then on September 27, 2022, Governor Newsom signed Senate Bill 731 which expanded on the Clean Slate Act. This bill took effect on January 1, 2023. The bill modified Penal Code 851.93 to push back the requirements to the following:

• To qualify for automatic sealing of arrest records (PC 851.93)

  • The date of arrest was on or after January 1, 1973 (it was January 1, 2021 before), and

    • The arrest was for a misdemeanor and the charge was dismissed, or

    • The arrest was for a misdemeanor, no criminal proceedings were initiated, at least one year has passed since the arrest and no conviction occurred, or the arrestee was acquitted from the charges that arose from the arrest; or

    • The arrest was for a felony where the term of imprisonment would have been in state prison (it was county jail before) for eight years or more and there is no criminal proceedings initiated at least three years since the arrest, no conviction occurred or the arrestee was acquitted; or

    • The person successfully completed a diversion program.

  • As a note: the arrest will still be visible and should be disclosed if applying for a job as a piece officer. It may still be visible to a prosecuting agency if another arrest occurs, and may still prevent you from being able to hold public office.

  • Also of note: this does not restore one’s gun rights if the arrest would have affected those rights.

• To qualify for automatic dismissal of convictions (PC 1203.425)

  • The person was not required to register as a sex offender.

  • The person is not currently under local, state or federal supervised release.

  • The person is not currently serving a sentence for an offense and there are no pending criminal charges.

  • The conviction meets either of the criteria:

    • The conviction occurred on or after January 1, 1973, and

      • The person was sentenced to probation, and they completed it with no revocations; or

      • The person was convicted of a misdemeanor or infractions, probation was not granted, and the person completed their sentence and at least one year has passed since judgment.

    • The conviction occurred after January 1, 2005

      • The person was convicted of a felony other than one where the person completed probation without revocation, completed all terms of incarceration, mandatory supervision, parole and four years have passed in the person completed probation or supervision; and

      • There are no new felony offenses.

      • This does not apply to serious felonies, violent felonies or felonies that require registration as a sex offender  

  • As a note: the arrest will still be visible and should be disclosed if you apply for a job as a peace officer or contracting with the California State Lottery Commission. It may still be visible to a prosecuting agency if another arrest occurs and may still prevent you from holding public office or working as an at home health provider

  • Also of note: this does not restore one’s gun rights if the arrest would have affected those rights and any protective orders will remain in effect.

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What To Do:

If You Have Completed Probation

If you have served your term of probation and did not have your probation revoked at any time and the conviction was after January 1, 1973, you don’t need to do anything. In theory, your conviction should have been automatically dismissed. Although, given that this is the government, and we all know how they don't always do what they say they’re going to do. It might be a good idea to check your record a month or two after you complete your probationary term. The easiest way is to get a Live Scan. All you need to do is Google (or Yelp) “Live Scan Near Me,” and you should find some places that perform that service. A live scan is just a self-initiated background check on yourself. If you do not see your conviction, then congratulations, it’s already dismissed. If, however, you still see it, your best option would be to contact a local criminal defense attorney. They will be able to help you get that conviction removed off your record.

If You Are Still On Probation

The easiest way to get your conviction dismissed is to serve your probationary term; however, there are some instances where you need the conviction dismissed sooner. If that is the case, you will need to contact a criminal defense attorney to get your probation terminated early. Usually something the prosecutor tries to stop. In their mind, they entered into a deal with you to avoid a trial and possibly save you from serving the maximum penalty.

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Generally, the courts tend to support the prosecutor when it comes to denying termination of probation early due to the contractual nature of the plea agreement; however, I have found there are generally two situations where a judge might grant your plea to terminate probation early. One is if you have immigration consequence, and two is if it is affecting your ability to work.

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For a lot of people, immigration concerns are a real thing. If you are here on a green card or work permit, you may be denied renewal due to the conviction. Always talk to an immigration attorney before accepting any plea deal. Fortunately, the courts are sympathetic to your plight. Most people have family here in California and their deportation or denial of work would not only leave them in a predicament, but also any family that relies on their support and income. Situations like this tend to make it easier to get probation terminated early.

Work is always a concern, especially in the current economic climate. The court does not want you, or your family, to become homeless because of a DUI or misdemeanor conviction. However, this reason tends to be a little more difficult to win compared to immigration issues. If you are just looking for a promotion, especially if it is not a guaranteed one, the court will usually deny your motion. Although sometimes they don’t so it never hurts to try.

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Being unable to attain work while being unemployed is a much more persuasive reason to get your probation terminated early. Generally, you will need some sort of documentation showing that you were denied work, or a promotion, solely based on the DUI or misdemeanor conviction. A letter from the employer, or a job listing that states a DUI or misdemeanor will bar you from employment are great to have. Other things tend to factor in as well, such as if you are an only parent, or the sole financial provider for your family.

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If you are trying to get your probation terminated early, there are other things that you should do to make your petition more attractive to the judge. The first thing you should be doing is continuing activities that show the court you are staying sober or out of trouble. Make sure to attend AA meetings continuously and get proof of attendance. This shows the court you are taking your promise not to drink and drive seriously. If you are doing any other programs or volunteering, try to get some sort of proof. A letter from a supervisor is usually enough or program operator. You will also want to write out a declaration explaining your remorse, the steps you are taking to make sure you will not end up in the same situation again, and how the DUI or misdemeanor conviction is negatively affecting your work or immigration status. You may also want to get a declaration from your spouse or partner stating how they have seen you work to maintain your sobriety and the positive effect it has had on your relationship.

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Having an experienced defense attorney will really help you if you need to be released from your probation early. They will know how to write the motion to make your plea more attractive to the judge. They should also be able to look at your situation, because everyone is unique, and they will work with you to create a motion that best explains why you need your probation terminated early and the conviction dismissed.​​

Felony Convictions

​Felony convictions are more difficult and complicated to get dismissed than DUI and misdemeanor convictions. If you do not qualify under the new law for automatic dismissal, you will need to get your conviction reduced to a misdemeanor. Not all convictions can qualify for this reduction. If the felony conviction is one that can be reduced to a misdemeanor, a motion must be filed with the court asking for the reduction and giving justification why it should be reduced. A hearing is then held where a judge will hear arguments from both sides and decide whether the situation and conviction justify a reduction to a misdemeanor. If denied, then the conviction can only be expunged in one of two ways, Certificate or Rehabilitation or Pardon from the Governor.

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Certificate of Rehabilitation

A Certificate of Rehabilitation is a form of direct pardon. Unlike an expungement, a direct pardon can restore your civil rights. A Certificate of Rehabilitation may be granted seven years after you complete your probation or parole term. This is three years sooner than you can seek a direct pardon from the governor. As a note, direct pardons are issued by the governor, but a Superior Court issues Certificates of Rehabilitation.

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A Certificate of Rehabilitation does not seal or destroy your records, and it does not change the status of your conviction. You will still have to answer “yes” when asked about criminal convictions. 

However, a Certificate of Rehabilitation may allow you to serve on a jury, vote, or own or possess a firearm. If you were convicted of certain sexual offenses, a Certificate of Rehabilitation may allow you to eliminate the requirement that you register as a sex offender. 

You must meet the following criteria to be considered for a Certificate of Rehabilitation:

1. You have been convicted of a felony and served time in a California state prison, or you have been convicted of a felony or a misdemeanor violation of a sex offense outlined in Penal Code section 290 which has been dismissed AND you have not been incarcerated following the dismissal

2. You have been a California resident for at least 5 years

You cannot receive a Certificate of Rehabilitation if:

1. You received a death sentence

2. You are on mandatory life parole

3. You are serving in the military

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Pardon From The Governor 

A direct pardon eliminates the penalties associated with your conviction and restores certain rights. You will receive the same benefits from a direct pardon from the Governor that you would receive if you obtained a Certificate of Rehabilitation.

If you are not eligible to seek a Certificate of Rehabilitation or you no longer live in the State of California, you can seek a direct pardon. As with a Certificate of Rehabilitation, a direct pardon does not expunge your conviction or seal your records.  Further, you must wait at least 10 years after the completion of your sentence (including parole or probation) to seek a direct pardon. 

To seek a direct pardon, you must file an Application for Gubernatorial Pardon.