In regards to the license, this gentleman is facing possible license restrictions from both the court and the DMV. A third DUI will typically result in a license loss for at least a year with no possibility of receiving a restricted license.
As to the 3rd DUI in the criminal court, the court will require jail time if there is a conviction. The expungement will have no affect on the consideration of the DUI as a 3rd DUI. Given that the second DUI was a felony (usually involves an accident on a second DUI), the District Attorney and the judge will likely impose a stricter sentencing scheme in regards to jail time. The initial offer will probably be somewhere between 180-365 days. If this gentleman is on probation or parole, it is possible the new misdemeanor could result in consecutive sentencing. Since the second was expunged, I am assuming he is not on parole or probation. The court will still consider the second DUI at sentencing.
Expungements in CA are brought under PC 1203.4 and are not true exungements especially in dui cases. In all cases it does not erase your record to have such an expungement. It just adds a note to your record that the conviction was dismissed. In any event the conviction is still priorable and the 10 year window for dui arrests still remains.
Because he has a prior felony DUI within 10 years, the new case can also be filed as a felony. I assume his second was a DUI with injury (a violation of Vehicle Code section 23153) and was the felony.
Because of that, his new case, even if it is just a "simple" DUI that ordinarily would be a misdemeanor, can and will most likely be filed as a felony.
The expungements won't matter - they don't remove them from his record for the purposes of whether or not they count as prior convictions. If he did get the felony reduced to a misdemeanor during the expungement proceedings, however, it will be treated as a prior misdemeanor and this will be his third.
Either way, he's looking at a substantial period of time in custody and license revocation/suspension by the DMV.
His license will be suspended for a period of time. On a 3rd offense probably 3-5 years. You should go through the family court to make sure he can't drive your daughter around. Yes. It will be treated as a 3d offense as expungement does not make the priors go away it just means he doesn't have to disclose them.
Edward J. Blum
DUI DUI defense DUI as a criminal offense DUI sentence DUI charges DUI and driver's license penalties DUI probation Felony DUI DUI and criminal records DUI expungement Second DUI Third DUI Child custody Family court and child custody cases Criminal defense DUI and restricted license Criminal charges Crime classifications Felony crime Misdemeanor crime Crimes against society Defenses for criminal charges Criminal court Criminal sentencing Criminal record Expungement of criminal record Parole for criminal conviction Probation for criminal conviction Family law
Sign up to receive a 3-part series of useful information and legal advice about DUIs.