Limitations of expungement

California Penal Code Section 1203.4 is the governing law for those cases in which probation is granted; 1203.4a is for those cases where probation is not granted, and a terminal sentence is imposed by the sentencing court. There are important differences between the two sections, and the relief granted under each. However, there are also important limitations in the relief granted by any expungement.

California Penal Code Section 1203.4 governs the majority of DUI expungement cases. It is rare indeed for a defendant to be sentenced for drunk driving and probation not be granted and a terminal sentence imposed. One reason for this is that the court always likes to have some leverage, a hammer hanging over the defendant in case of any future misbehavior. If probation is not granted, that leverage is gone.

Expungement under 1203.4 is the only relief available for those convicted of misdemeanors in California, absent a finding of factual innocence pursuant to California Penal Code Section 851.8. If expungement is granted, the person "is to be released from all penalties and disabilities resulting from the offense of which he or she has been convicted," subject to certain exceptions.

The first of these exceptions is California Vehicle Code Section 13555. This section provides that any DMV APS action that was imposed as the result of the DUI conviction remains unaffected by the granting of relief under 1203.4 or 1203.4a. Additionally, for purposes of establishing a prior offense to charge a second-offense or third-offense (or more) DUI case, an expungement will have no affect. In other words, an expunged DUI conviction can still be revived for purposes of alleging a prior.