Expungement Eligibility
Notice to the Prosecutor and Probation Department
The next requirement to petition to expunge a conviction, or make a motion for an expungement, is that notice be given to the prosecutor. It is also required that notice be given to the probation department if the defendant is on formal probation. If proper notice is not given, the court will not grant the post conviction relief (expungement) sought.

California Penal Code Section 1203.4 (d) and (e) explicitly state that “No relief shall be granted under this section unless the prosecuting attorney has been given 15 days’ notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section. It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court. If, after receiving notice pursuant to subdivision (d), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.”

This section of the California expungement law is critically important for several reasons. First, if proper notice is not given, the court will not hear the matter for expungement. Next, and perhaps more important, if proper notice is given, and the prosecuting attorney does not appear at the hearing on the motion to expunge to object, they may be foreclosed from appealing or attempting to later set aside the petition to expunge. There have been cases where the court has granted the post conviction relief following a properly noticed expungement motion, and where later attempts by the prosecutor to set aside the post conviction relief have been thwarted.

Expungement of DUI convictions can provide important relief. It is worth taking the time to ensure that all of the (DUI expungement) eligibility requirements have been met, including the expiration or termination of probation, no pending criminal charges, the fulfillment of all terms of probation, and notice to the prosecuting agency or probation officer. If you or someone you care about is still suffering under the weight of a DUI conviction, please see a qualified expungement lawyer to pursue expunging the DUI.