Some Strategies That Attorneys Can Use to Fight a DUI
• Prove you are not driving: In rare cases, the wrong individual is arrested for a DUI. If the attorney can prove that the individual who was arrested was not actually driving the vehicle, the case is typically dismissed. However, this would require rather unique circumstances.
• Prove the officer did not have grounds to stop the person: A far more sound approach is for the attorney to prove that the officer did not follow the proper legal procedures when detaining the individual. The officer must have a solid reason for stopping an individual in the first place. Sometimes, attorneys can challenge this.
• The credibility of the evidence or of the officer can be challenged: If the officer took a video of the individual, and it appears as if the individual was not swerving on the road, breaking any laws, or did not appear intoxicated, a good attorney might be able get the case dismissed. Sometimes, individuals have medical conditions that make them appear to be intoxicated even if they were not legally intoxicated. This is a strategy that might help. Sometimes, using witnesses who can attest that the individual was not intoxicated can help to question the reliability of chemical tests or sobriety tests.
• Provide objective evidence that the individual was not legally intoxicated: If the attorney can provide objective evidence that the individual was not legally intoxicated at the time of their arrest, they may get the case dismissed. Attorneys have several ways they can approach this, including looking at the results of chemical tests and determining that given the time period that elapsed between the administration of the test and the arrest of the person, the individual’s blood alcohol level could not have been over the legal limit. Again, this requires expertise, and individuals attempting to do this without the use of an attorney would most likely fail.
Each experienced attorney has numerous approaches they can use based on the evidence, the specific conditions, and information provided to them by their client. This is why it is essential that an individual records everything they can remember about their arrest as soon as possible. If it is clear that there will be a conviction or to appeal to the judge, an attorney may often suggest that the individual immediately enroll in a treatment program or therapy, which can be used to objectively demonstrate to the judge that the individual is trying to change their behavior. Sometimes, this can result in a lesser conviction or lesser consequences; however, repeat offenders typically receive less leeway with these tactics.
How to Get Your DUI Arrest Records
Whether you were charged but not convicted or simply arrested on suspicion of driving under the influence (DUI) but not charged with the crime, your interactions with the criminal justice system may be a matter of public record. Why would this be of concern to you? It really depends on your own personal situation and the severity of the offense, but the hard truth is that one simple DUI arrest even if the charges were dropped or never filed in the first place can come back to haunt you in several ways. Even a clerical error, if left unchecked, can cause similar headaches. For instance, your DUI arrest record may be all a hiring manager needs to see in order to eliminate you from consideration for a job, even if charges were never filed. It may sound unfair, but your police record can cast a long shadow on your future plans. This could also come up if the job you are applying for requires you to hold a commercial driver’s license (CDL). Knowing exactly what arrest records are out there can help you get out in front of it and possibly get those records expunged from your record.
Arrest Records, Court Records, and Rap Sheets
Before you begin looking for your records, it’s important to understand the difference between police records, court records, and rap sheets. Your court records include actual convictions and related court proceedings. Your police records include all recorded interactions with the police, including arrests that don’t result in charges or a conviction, stretching back seven years. Your rap (“Record of Arrests and Prosecutions”) sheet contains any contact you have had with the criminal justice system and is maintained by the Federal Bureau of Investigation (FBI). The limits of what records a third party (such as an employer) may access and use for decision-making purposes are subject to both federal and state law, and sometimes vary by county, although enforcement can be very difficult. However, third-party access to your rap sheet is limited to certain state and federal agencies for background checks and security clearances. Arrest records of juveniles are not available to the public in most cases. Also, police records considered too sensitive for release (for instance, if doing so would endanger someone’s life or interfere with an investigation) may be barred from public view.
Accessing Your DUI Arrest Records
The process for accessing your police records will vary by state and by jurisdiction. Some police departments require you to contact them directly for arrest records, while others make them available online. To obtain a copy of your rap sheet, you must submit a signed application and a set of fingerprints to the FBI, along with a processing fee. If you’re applying for a job, searching for an apartment, or want to expunge a DUI arrest, you will first need to access your arrest records. Consider talking to an attorney if you have questions about the law surrounding arrest records or have other concerns. Get started today by contacting an experienced DUI lawyer in your area.
A DUI can leave a lasting stain on a criminal record, but there are ways to get the stain cleaned. The process of getting a DUI removed from your permanent record is known as “expunging.” Though an expungement might clear up your criminal record, your driving record may still show your DUI. Yet, having one on your driving record won’t last forever and license-related consequences generally only last for a finite period of time (i.e. one month suspension, six months redistricted driving). Once convicted of a DUI, you’ll also need to file an SR-22 with your car insurance provider which will likely increase your rates. This will eventually be removed, depending on state laws, after some time. However, not every state allows for expungements, and those that do place a number of restrictions on how to do so.
Eligibility for a DUI Expungement
Probation is an important factor of DUIs and potential for expungement. 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):
1. There must have been some kind of probationary component to the DUI sentence. 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 unlikely that a judge will consider expungement.
2. 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.
3. 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 DUI Expungement
If you (and/or your attorney) determine that you meet your state’s requirements to expunge a DUI conviction from your criminal record, there are a few ways to request this. You must file a petition which includes an affidavit and a motion for relief, pay filing fees (anywhere between $100 and $400), and then inform 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.
How Long Until My Record is Expunged?
In the same way that different states have their own laws about allowing expungements, the amount of time that has to pass between your conviction and your petition to expunge 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 your probation period. 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. 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.
Can I File a DUI Non-Disclosure?
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 deeper criminal background check. 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 depending on the severity of the original offense and the state where it happened—and your DUI might never again show up on your record.
How To Expunge A DUI Conviction
For a misdemeanor DUI conviction to be expunged, at least 5 years must have passed from the date of conviction, the person cannot have committed any other crimes in the previous five years from filing the expungement petition, and the person must have paid all courts costs and fines. These are the minimum requirements for a misdemeanor expungement and other factors such as additional criminal convictions can change when or if a person qualifies to file a petition. For a Level 6 felony DUI conviction to be expunged, at least 8 years must have passed since the date of conviction, the petitioner cannot have committed any other crimes in the prior 8 years and the person must have paid all fines, fee and court costs. And again, any other criminal convictions on the person’s history will affect the ability to file for an expungement of a DUI conviction. Expungement petitions can be complicated. In order to file a petition to expunge a DUI conviction, a petition must be filed in the court of conviction, or in the county where the conviction occurred if there are other convictions being expunged at the same time in that same county. Local rules must be followed in determining where to file the petition. Along with the petition, you may want to file relevant exhibits, showing when the conviction was entered, what the sentence was and if the fines and fees were paid. There is also very specific information that must be included in the expungement petition, including the person’s date of birth, social security number and all prior addresses since the date of the offense. These details are important, and if left out, the prosecutor may file an objection. Having an experienced expungement attorney can be the difference between having your petition granted or denied. Depending on the court the case is filed in, you may need to file a proposed order with the petition or after a hearing. Some courts will grant the petition without a hearing if there is no objection from the prosecutor, while other courts require a hearing for every petition. Whether you have an attorney or not, if there is a hearing set, it is always important to be prepared and have all of your documents in order. Once a DUI is expunged or sealed by the court, the court’s order will determine what will be ordered expunged. In most cases, the court will order the conviction and any records related to that conviction expunged. This order will be sent to the arresting agencies, the court clerk, the prosecutor’s office, any jail or probation office that provided services and any other state agencies that maintain records, including the Police.
Provo DUI Lawyer
When you need to defend against DUI Charges in Provo Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506