Skip to main content

Can I clear my DUI record after getting convicted of a minor infraction?

Santa Monica, CA |

I was convicted of a DUI in California in October 2009. I applied for a record clearance in October 2012 (three years later) but it was denied because of a ticket I got in June 2012: CVC 23123(a), not using a hands-free device. (Although I was, but I was also holding my phone while driving.) However, the paperwork says that I was arrested in June 2012 (I was not) and that it was a misdemeanor (it is an infraction). Is this possibly a screw up, and if not and if my record cannot be cleared, will my license be taken away? And if not, when can I get my record cleared?

The language is that I was "arrested for a misdemeanor violation of Sec. 23152(a) VC..." Is the ticket I received for not using a hands-free device, CVC 23123(a), technically an "arrest for a misdemeanor violation..." or is this a paperwork screw up? And if I do nothing will my license be taken away or does it just mean that my probation continues?

+ Read More

Attorney answers 6


If you have an incorrect entry on your rap sheet, you need to contact an attorney in order to correct it. The 2012 error stated something was a misdo. rather than an infraction is a huge difference and should be dept with. This is especially true since you are trying to clear your record. Good luck.


You definitely want to speak with an attorney about correcting the problem. Make sure you have copies of the paperwork from the infraction and sentencing. Sometimes errors occur, but it's up to you to show that it was an error. Good luck.

The above stated is advice only, and does not establish an attorney-client relationship.


You have a few issues that needs to be clarified with the Court and/or DMV before taking any further steps. You can either contact them yourself, or hire an attorney to help you in your legal matter. Please let us know if we could be of any help.

Lawrence Wolf, Esq.


The critical factor is whether you have successfully completed your probation with no violations. Even if there was a basis for a violation if the court failed to revoke your probation, you would be entitled to an expungment. We can get an answer to that question in a few hours with some basic information. Please give me a call and we can get an answer for you. Joel C. Koury , 310-560-2001

Robert Lee Marshall

Robert Lee Marshall


In DUI cases, a defendant is not entitled to an "expungement" after successful completion of probation. Penal Code 1203.4(c) specifically states that the judge has discretion to grant a dismissal to a person convicted of a DUI, but is not required to do so.


Bottom line: there's really no way to "clear your record" after a criminal conviction in California.

You're probably talking about a dismissal under Penal Code section 1203.4, which is sometimes called an "expungement," even though it doesn't really expunge anything. (The California Judicial Council has even removed the E-word from the official application documents in the past few years... probably because the term is so misleading).

A 1203.4 dismissal has some limited benefits, but you still have to disclose the conviction when applying for a government license or job. It can still be used as a "prior" to increase the punishment for future DUI convictions, and it has no effect on your driving record with DMV.

In most cases, a judge is required to grant a 1203.4 dismissal if the defendant has successfully completed probation.

However, if you're convicted of a DUI, the judge has discretion whether to grant a 1203.4 dismissal. Even without the apparent mix-up with your recent ticket, you aren't guaranteed to get 1203.4 relief.

Please understand that this is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. It's impossible to give detailed, accurate advice based on a few sentences on a website (and you shouldn't provide too much specific information about your legal matter on a public forum like this site, anyway). You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information.


A cell phone ticket on a first violation, at this time does not assess points on your record, it hits you with a fine, but won't add points which could be used to suspended your license by DMV. However, you really have two issues, trying to get the DUI conviction cleared up and clearing up the issue with the infraction showing up as a misdemeanor.

As previously states, unless you can show that you were factually innocent of the charge, i.e. Identity Theft, the best you can so is a 1203.4 expungement which does not really take it off your record. It has to be disclosed for purposes of obtaining a professional license and for employment with the California State Lottery.

As for the other case showing up as a misdemeanor, I would try to informally fix that with the clerks office, if they won't then you could put yourself on calendar for a modification of probation if the order shows that you are on probation and then explain the issue to a judge asking the judge to correct the order. Otherwise, you can also write a letter addressed to the appropriate judge who would be assigned the case, explaining the issue. Lastly, you could do another 1203.4 petition on that case as well just to get it in front of the judge if all else fails, but that would be a real hassle.

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer