New Changes in the Law Make it More Possible Than Ever to Clear Your Arrest Record

The law has recently undergone a major change with regard to Petitions to Seal and Destroy Arrest (or Detention) Records, particularly if the defendant has not been convicted.


The Old Way (Penal Code 851.8):

In the old days (meaning prior to January 1, 2018), in order to seal and destroy a record of arrest, the petitioner was required to prove "Factual Innocence" of the crime for which he or she was arrested.   Penal Code 851.8(b) defines factual innocence as "no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made."  

In other words, a Petitioner would have to prove to a judge that the arresting officer was acting unreasonably when he arrested her!  This was an extremely high burden for a Petitioner to Meet, and rarely successful.

The New Way (Penal Code 851.91)

Thanks to California Senate Bill 393, as of January 1, 2018, Petitioners do not have to prove factual innocence to seal and destroy their arrest records!  Instead, an arrestee may have his record sealed and destroyed as a matter of right if the following are true (with a few narrow exceptions):

1.  Petitioner was not convicted (Penal Code 851.91); or

2.  Petitioner was enrolled in and successfully completed a court diversion program (Penal Code 851.90).

Not everyone knows about this law yet!  Get in early, before the form is changed, and you may even get a finding of factual innocence.


5 Things You Probably Didn't Know about DUI Arrests (But Should)

1.  You DO NOT have to take the Field Sobriety Tests (including the "PAS" Device)

Everyone knows that when an officer pulls you over, and asks you to take a "field sobriety test", this is just the beginning of your path toward being charged with a DUI.  These tests usually include physical activities the officer instructs you to perform, in order to determine the extent of your intoxication.  

These tests are not part of "Implied Consent", and may be refused without an inference of guilt.

You may refuse to participate in any field sobriety test, and your refusal may not be used against you as an admission of guilt (People v. Zavala, 239 Cal. App. 2d 73).  This includes the Preliminary Alcohol Screening ("PAS") device - the mini-breathalyzer often administered by the police at the scene of arrest.

Simply tell the officer:  "I refuse to take any field sobriety tests, including the PAS device."


2.  You are NOT required to provide blood as part of "Implied Consent."


"Implied Consent", under California law, states that an individual who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.  (See Vehicle Code section 23612).  This means that if you refuse a chemical test once lawfully arrested and taken back to the station, such a refusal can be used against you in court as consciousness of guilt (as well as sentencing enhancement - See Vehicle Code section 23578).

However, in the landmark U.S. Supreme Court case of Birchfield v. North Dakota (136 S.Ct. 2160), the Court held that the 4th Amendment of the U.S. Constitution does not permit warrantless blood tests incident to arrest for drunk driving.  The upshot is that if you are arrested on suspicion of DUI, and the breathalyzer machine is down, law enforcement cannot require you to submit to a blood test to determine your blood alcohol content.  On the flip side, the Court also ruled that a breath test does not implicate significant privacy concerns.


3.  There is both a Subjective and Objective Charge of DUI.

There are 2 ways to be convicted of driving under the influence of alcohol:

The first is the subjective standard.  Vehicle Code section 23152(a) states:  "It is unlawful for anyone under the influence of an alcoholic beverage to drive a vehicle."

The second is by the objective standard.  Vehicle Code section 23152(b) states:  "It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle."

Under 23152(a), the driver is not necessarily required to have a blood alcohol content ("BAC") of .08 or higher.  If it is proven you were driving as if you were under the influence of alcohol, and were found to have any measurable amount of alcohol in your system, then you may be convicted of DUI under this code section.

Under 23152(b), all that is required for a conviction is a lawful traffic stop (for any legal reason), and a BAC of over .08.  It is not necessary to prove that alcohol affected your driving.

The reality is that most people who test below .08 are not normally prosecuted for DUI.


4.  The Police are not Normally Required to Read You Your "Miranda Rights" at the Scene of Arrest


Miranda Admonitions (which everyone who's seen a cop movie already knows) are always required if someone is in custody, and is being interrogated.  They are:

  1. The right to remain silent, with a warning that anything said can be used against the suspect in Court;
  2. The right to have an attorney present before and during questioning;
  3. The right have an attorney appointed at public expense and without cost to the suspect, to represent him before and during the questioning.

Miranda Warnings are triggered by the combination of custody plus interrogation.  If one is in custody and is interrogated without being advised of her Miranda rights, then any statement made is inadmissible in Court.  This does not mean the case will be thrown out.

Interrogation occurs when any law enforcement personnel asks a suspect a question that is intended to result in an incriminating response.  Whether a suspect is in custody, however, depends on several factors.  Is someone in custody when he's brought back to the station, placed in handcuffs, and locked in a cell?  Most likely.  What about when one is pulled over, and asked questions by an officer while still inside his own car?  Probably not.  

Courts have frequently held that an individual pulled over by the police, asked questions about how much alcohol she drank, and then asked to participate in field sobriety tests is not necessarily in custody.  The safest move is to assert your right to remain silent.


5.  If You do not Request a DMV Hearing Within 10 Days from the Date of Arrest, the DMV will Automatically Suspend your License

After you are arrested on suspicion of DUI, it is up to you to contact your local DMV Driver Safety Office and request a hearing.  The DMV will not initiate contact with you.

If you do not contact the DMV and schedule a hearing within the statutory 10 days, the DMV will initiate a procedure called "Administrative Per Se Suspension."  This means that your license will be suspended for the maximum allowable time, without providing you with a hearing.  In order to avoid this consequence and preserve your right to a hearing, contact the DMV right away after your arrest.