Driving under the influence is a serious criminal offense, and having a DUI on your record can mean anything from higher insurance premiums to losing out on job and living arrangements because of what a background check will reveal. Clearing your record of a DUI is possible, but it depends on a multitude of factors, and it could take a very long time.
The DUI Process
Getting a DUI can be a scary process, and it can have very serious consequences. If police suspect you are driving under the influence of drugs or alcohol, you will be pulled over and asked to submit to a breathalyzer or field sobriety test. You do have the right to refuse to take the tests, but prosecutors can still base a potential DUI charge on other evidence at the scene, such as officer observations and eyewitness testimony. Your refusal to submit to a test could be used against you if the case goes to trial. Some states allow you to refuse a breathalyzer (at the risk of incurring a small penalty), but impose more severe penalties if you refuse to give blood or urine samples at a police station (like suspending your license or impounding your vehicle).
Assuming you consent to the tests (and fail them because your blood alcohol content is over the legal limit of 0.08%), you will be arrested and booked at a police station on suspicion of driving under the influence. After your arrest, you will receive a summons to appear in court, at which point you will be presented with the evidence that the arresting officer collected against you. During your appearance, you will be required to make your plea: guilty or not guilty of the crime of driving under the influence.
Every driver convicted of a DUI will have their license suspended; for how long the suspension is in effect depends on respective state law and the nature of the DUI offense (for example, if your DUI took place in a school zone in New Jersey, you could lose your license for up to two years). If you are able to make a case that you still need to drive, you might be granted a restricted license; in Tennessee, this might mean that you can only drive on certain days at certain times, to certain locations, and only with an ignition interlock device.
A DUI does not necessarily mean a jail sentence, although in some states, first-time offenders will spend a night or two behind bars. As an alternative, minor DUI offenses will result in probation, for which you will need to check in with a probation officer and complete the terms and conditions of your probation before getting the conviction wiped from your record can be considered.
Even after finishing your probationary period, your insurance company will likely hit you with higher premiums because of what your DUI says about you as a driver. In a state like Texas, for example, the Department of Public Safety will require you to file a special certificate of insurance that is issued by your insurance company before the state will reinstate your license. If your insurer revokes your coverage because your DUI violates their policies, they will have to inform the state government that you do not have insurance, and your driver’s license and vehicle registration will be suspended. As someone with a DUI conviction, your SR-22 will be active for two years from the date of the conviction.
For these reasons (and many more), a DUI can leave a lasting stain on a criminal record, but there are ways to get the stain cleaned. Legally speaking, the process of getting a DUI removed from your permanent record is known as “expunging.” Not every state allows for this to happen, and those that do place a number of restrictions on how to get a DUI expunged. In Texas and Mississippi, for example, DUI convictions cannot be removed from record, although many other offenses can be. In Arizona, on the other hand, courts can “set aside” and eventually discharge the DUI. Yet other states have a more nuanced approach, agreeing to expunge (or not) on the basis of the sentence handed down at the DUI conviction, as opposed to doing so on the nature of the DUI offense itself. An example of this would be granting the expungement if you only received and completed a deferred sentence; completing the period of probation, and fulfilling the stipulations thereof, would mean that you were never technically found guilty of the DUI, and so expungement would be an option. However, violating the terms of the deferred sentence (for example, by not paying fines and court costs, or getting into trouble again) will almost certainly result in a court refusing to expunge the DUI conviction from your record.
Similarly, some states hold that if your DUI sentence was suspended (that is, a judge delayed you having to serve your sentence after being found guilty of driving under the influence, so that your probation could go into effect), you would likely not be eligible for expungement because of the nature of the DUI conviction (and, in this case, not the DUI itself).
The Importance of Probation
Probation is such an important factor of DUIs and potential expungement, that it accounts for two of the three general requirements that must be met in order for you to be eligible for an expungement (and even then, they do not guarantee that the conviction will be wiped):
- There must have been some kind of probationary component to the DUI sentence (as mentioned above). If there was no probation – that is, if the offense of the DUI was so serious that you were sent directly to a state prison as punishment – then it is highly unlikely that a judge will consider expunging the DUI from your record.
- You must have complied with all the requirements of the DUI probation. If anything happened that violated the terms of your probation, there is a high chance you will not be able to get the DUI off your record.
- Lastly, you cannot have a pending criminal issue facing you when you request the DUI expungement. If a judge determines that the reason for your expungement request is because you (or your attorney) are afraid it will be used against you in the other case, they will probably deny your request.
Petitioning for an Expungement
If you (and/or your attorney) determine that you meet your state’s requirements to expunge a DUI conviction from your criminal record (assuming your state allows for that to happen), there is a procedure to follow. This entails filing a petition to that effect (the petition includes both an affidavit and a motion for relief), paying the filing fee (anywhere between $100 and $400), and then informing the prosecuting attorney’s office of your intent. When the prosecuting attorney’s office receives notice of your request, they will have to file an answer and challenge your request.
The petition itself is subject to a review before a judge, even before it is officially upheld or denied. Depending on the circumstances surrounding the DUI and the sentencing you received, a judge may have to sign off on your petition for expungement before it can be submitted to a court.
The last step of the process is to request a final hearing in front of a judge. If you are granted the opportunity, you will have to show why you deserve to have your DUI conviction expunged. Your attorney will make the arguments on your behalf, but you may be called to give a statement to the court and answer questions from the judge.
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How Long until Expungement?
In the same way that different states have their own laws about expungement (and whether expungement is even an option), the amount of time that has to pass between your conviction and your petition to expunge the DUI from your record changes from one border to another. Typically, you have to wait at least a year from the date of your conviction in order for the courts to consider a request to wipe your record clean, but the waiting period may be influenced by the gravity of the DUI offense and the punishment handed down by the sentencing judge. A DUI attorney will be able to best advise you on the most optimum time to file a petition.
Once the petition is filed, an expungement for a DUI can take up to six weeks to be processed. Felony DUIs tend to take longer while a misdemeanor DUI can be processed in as little as two weeks.
Even after the court grants approval for a DUI to be expunged from your record, you will still have to wait for the expungement to take effect. The court system will have to update its documentation, and only then will the relevant DUI records reflect the expungement. It normally takes around 48 hours for a court to update its DUI records, but if any federal agencies (like the FBI) have information related to your DUI, then it could take months for your expungement to go into effect.
Not qualifying for a DUI expungement doesn’t have to be the end of the road. It might still be a good idea to talk with an attorney who specializes in expungements and DUI laws. You might have some options available to you that grant similar effects; for example, you could petition for DUI non-disclosure, whereby your criminal record is sealed from private agencies (like a potential employer) who may want to conduct a background check on you. However, the DUI will still remain on your criminal record, so it will turn up on a criminal background check.
Texas is a state that allows for DUI non-disclosure petitions, but they are only available to first-time DUI offenders (second- or third-time offenders do not qualify). Additionally, if a child was in the vehicle you were driving, you cannot petition for a non-disclosure of your DUI; similarly, having a blood alcohol content level of 0.15% or higher will disqualify you. Other restrictions apply, based on respective state and local laws; and like an expungement, if the nature of the DUI offense is such that a judge waives probation, then it is unlikely that you will be able to petition for a DUI non-disclosure.
If an expungement petition is granted, then the DUI is wiped from your record, as though the conviction never happened. An employer or landlord running a background check will not find any trace of it, and – again, depending on the severity of the original offense and the state where it happened – your DUI might never again show up on your record.