DUI Expungement Lawyer in San Jose, CA Penal Code 1203.4 and Its Exceptions

What section 1203.4 actually orders

Penal Code section 1203.4 provides that where a defendant has fulfilled the conditions of probation for the entire period, or has been discharged before the termination of the period, or in any other case in which a court in its discretion and the interests of justice determines that a defendant should be granted relief, the defendant shall be permitted to withdraw the plea of guilty or nolo contendere and enter a plea of not guilty, or the verdict or finding of guilt shall be set aside, and the court shall thereupon dismiss the accusations or information (Penal Code 1203.4). The defendant is then released from all penalties and disabilities resulting from the offense — with an express carve-out the statute states in the same sentence, except as provided in Section 13555 of the Vehicle Code. Subdivision (d) requires that notice be given to the prosecuting attorney at least 15 days prior to the hearing on the application.

The exception that matters to a later DUI charge

Section 1203.4 states that in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation dismissed. That sentence is why a dismissal does not reset the ten-year prior count. A dismissed first offense remains available as the prior that makes a later section 23152 charge a second offense under section 23540, or a third under section 23546 (Vehicle Code 23540). Vehicle Code section 13555 states the license side of the same rule: a termination of probation and dismissal of charges under Penal Code section 1203.4 does not affect any revocation or suspension of the privilege of the person convicted to drive a motor vehicle, and the prior conviction shall be considered a conviction for the purpose of revoking, suspending or otherwise limiting that privilege on the ground of two or more convictions (Vehicle Code 13555).

The other things the order does not do

Section 1203.4 lists them. The order does not relieve the person of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission. It does not permit a person to own, possess or have in custody or control any firearm, or to hold public office where the conviction would otherwise prohibit it. It does not release an unexpired criminal protective order. Subdivision (c)(1) provides that subdivision (a) does not apply to a person charged with an offense described in Vehicle Code section 12810(a) through (e), while subdivision (c)(2) provides that a court, in its discretion and in the interests of justice, may grant relief for such an offense.

Why the Vehicle Code cross-reference reaches DUI

Section 12810 assigns point values for driving-record purposes, and subdivision (b) assigns a value of two points to a conviction of a violation of section 23152 or 23153 (Vehicle Code 12810). Because a DUI conviction sits inside the (a) through (e) range that section 1203.4(c)(1) names, relief on a DUI is expressly framed as discretionary rather than automatic, granted where the court in its discretion and in the interests of justice determines it should be.

Probation has to be finished first, and DUI probation runs long

Section 1203.4 relief is keyed to the probation period, and Vehicle Code section 23600 sets that period for a section 23152 or 23153 conviction at not less than three nor more than five years (Vehicle Code 23600). The same section prohibits the court from staying any sentence or the imposition of sentence, and lists the conditions that must be met throughout: no criminal offense, no driving with any measurable amount of alcohol in the blood, and no refusal of a chemical test when requested by a peace officer. Section 23600 further provides that a conviction of a section 23154 violation involving 0.04 percent or more shall cause the court to revoke probation, which restarts the timeline rather than shortening it.

Where the application is filed in Santa Clara County

An application goes back to the court that handled the case, which for a San Jose DUI is the Hall of Justice at 190 West Hedding Street (Santa Clara County Superior Court). Retrieving the file usually comes first, and the court's records page explains that public records are requested by case number, that a criminal case index search covers cases filed in 2004 or later using the defendant's name and date of birth, and that cases filed before 2004 are searched on microfiche at the clerk's office using name, date of birth and filing year. The same page notes that not every document in a criminal file is public, listing arrest reports, probation reports, own recognizance reports, criminal history information and financial or medical information among those that cannot be inspected or copied. This page is general information about California law and is not legal advice; whether relief under Penal Code section 1203.4 is available in a particular case is a question for a licensed California attorney, and the attorney advertising on this site can be reached at the posted number.