Expunge DUI Records

“First, do no harm,” counsels the Hippocratic oath. Good doctors still honor these words – and so should legislators considering revisions to New York’s drunk driving laws.

Brendan Tully, a Democrat who ran  for a seat in the state assembly, proposed a fundamental change in New York DWI law. Specifically, the proposal was to amend the law so that drivers charged with DWI are no longer allowed to plead to a lesser charge that is at the level of a traffic infraction. Although Tully did not win a seat in the Assembly, the proposal he put forward could come up again. Its flaws should therefore be confronted.

The premise of the proposal is that, under current law, the practice of allowing drunk driving charges to be plead down to a non-criminal offense amount to a loophole in the law. But this practice is not a “loophole”; it is a specific provision in the law whose removal would be a tremendous hardship for first-time, low-level offenders. Ending the ability of first-time, low-level offenders to plead down to a non-criminal offense would also greatly threaten the efficiency of the justice system. With so little incentive to plead, more and more cases would go to trial, causing long delays and multiplying inefficiencies.

To be sure, a proposal that seeks to make streets and highways safer by cutting down on drunk driving would be welcome. The statistics are sobering. Last year, according to Mothers Against Drunk Driving, 321 people lost their lives in New York State because of drunk driving.

Undue Hardship

Stigmatizing first-time, low-level offenders by removing the ability to plead down does not make sense. Doing so would create a form of modern-day scarlet letter that would unduly burden their job prospects and their entire futures.

Under present law, no conviction in New York State for DWI or any other crime can be expunged. A person who is convicted of Driving While Ability Impaired by Alcohol (DWAI), however, can truthfully state on an application for licensing, employment or admission into college that they have not been convicted of a crime.

This distinction is crucial. Especially for young people, a conviction for a crime could carry lasting consequences that could affect the ability to get financial aid, obtain a professional license or find suitable employment. Even those who are currently employed, such as teachers, could find their professional licenses at risk.

Under current law, prosecutors typically offer first-time offenders a chance to plead guilty to the offense of driving while ability impaired (DWAI), if offender’s blood alcohol content (BAC) levels were low and there were no injuries. To disallow prosecutors the discretion to tailor their approach to first-time offenders amounts to attacking the problem of DWI with a one-size-fits-all hammer when what is really needed is a scalpel.

Think about it. Is it really fair to treat a first-time offender who has a BAC level of .08 – the legal minimum to support a prosecution for DWI – the same as a person who has a BAC of .17? Under a proposal such as Tully’s, both persons would have a scarlet letter of a criminal conviction for the rest of their lives.

Effect on the Justice System

Besides the undue hardship that could be inflicted on low-level, first-time offenders, a proposal such as Tully’s would also be likely to create severe backlogs and inefficiencies in the court system. With the incentive removed to plead to a non-criminal offense like DWAI , more and more defendants would insist on going to trial.

At a time of tight resources, it would be very difficult to equip the system with enough prosecutors, enough juries, enough court personnel, and so on in order for it to work effectively. The result of removing the incentive to plead down would therefore be to create a bottleneck in the courts – causing excessive delays and mounting frustrations for all concerned.

Leandra’s Law

New York’s recent experience with Leandra’s law demonstrates the necessity of guarding the efficiency of an overloaded justice system. This law – named after an 11-year-old girl who died in a minivan crash – makes it a felony to drive while intoxicated with a person under 16 in the car.

Leandra’s law also led to a new requirement that the vehicles of first-time DWI offenders receive ignition interlock devices, which prevent a vehicle from starting if the driver’s blood alcohol content is over a certain point.

The challenges of enforcing Leandra’s law have strained New York’s already overtaxed criminal justice system. For example, caseloads for probation officers, who are needed to enforce the ignition interlock requirement, have increased substantially. Probation cases would surely skyrocket even further, if a proposal such as Tully’s were to pass.

All Cases Are Not the Same

Amending the law so that drivers charged with DWI are no longer allowed to plead to a non-criminal charge would do more harm than good. A parent who is way over the legal limit with a child in the back seat is justly the source of outrage. But the law has to be able to distinguish that case from that of a first-time offender with a relatively low BAC who caused no injuries.

Originally published here.

It sometimes happens that a person seeking to expunge a criminal record in Florida has open charges pending in another related case. Imagine, for example, that you are pulled over by a police officer for speeding. During the traffic stop, the officer discovers that your license is suspended and smells alcohol on your breath. You fail an administration of the breath test and are placed under arrest for driving under the influence (DUI). Your car is impounded and during an inventory search, a small amount of cocaine is discovered in your glove compartment. Charges are filed against you: possession of cocaine (a felony charge), plus DUI and driving with a suspended license (filed in misdemeanor traffic court).

You decide to hire a lawyer to handle your felony case and your lawyer works out a good deal with the State. Since this is your first criminal offense, you are offered a no contest plea with adjudication withheld. You accept, since your lawyer explained that having adjudication withheld means that you would be eligible to clear your criminal record. Now, you would like to begin the Florida expungement process with respect to the cocaine possession charge. However, the other charges from your arrest are still pending (recall the DUI and suspended license charge filed in misdemeanor court). Can you do it?

In Florida, the answer is no. First, you can only expunge a criminal record in Florida if charges against you have been dropped or dismissed by the prosecutor or court. When you receive a withholding of adjudication, you only may be eligible to seal your record. The main difference between record sealing and expungement is that a sealed record still exists (but the public is prevented from knowing its contents), while an expunged record is physically destroyed. However, under these circumstances you wouldn’t even be able to seal the record yet.

In a well-known case (to us Florida expungement attorneys, anyway), the Florida Department of Law Enforcement (FDLE), which is the agency responsible for determining whether you are eligible to seal or expunge a criminal record in Florida, denied the request of a juvenile seeking to seal a drug possession charge from his record under similar circumstances to the example given above. The juvenile appealed the FDLE’s decision to the courts. Florida’s Third District Court of Appeal held that the criterion set forth in Florida Statute Section 943.059(2)(d) specifically provides that an applicant is not eligible to seal or expunge a criminal record unless the applicant was not adjudicated guilty of committing any of the acts stemming from the arrest.

In layman’s terms, you cannot have any charges pending against you relating to the original arrest if you want to seal or expunge your record. All charges must be resolved before you can determine if you meet the statutory eligibility requirements. So although in our example above you received a withholding of adjudication on the cocaine possession charge, the DUI and driving with a suspended license charge remained pending, meaning you could ultimately be adjudicated guilty of either of these two charges and therefore be ineligible to seal any part of the record.

This reasoning extends to open charges in an unrelated case as well. The Florida statutes state that in order to be eligible to seal orexpunge a criminal record, you must never have been convicted of any crime, anywhere. If you have open charges, there is a chance you could be convicted on these charges and therefore would not be able to move forward with record sealing or expungement until all charges against you have been resolved.

Originally published here.

www.criminaldefenseattorneytampa.com – Tampa Criminal Record Sealing Lawyer Leslie Sammis talks about using an attorney to have your criminal record expunged or sealed. Florida Lawyers experienced in handling record sealing and record expungement / expunction cases. Check out this video to see general information about whether you might be eligible to seal or expunge a criminal arrest record under Florida law.