Blog News -

Mad Max got his DUI expunged, why can’t I?

“When everyone is a criminal, no one is free.” – Colin Dodd, Washington Post.

Actor Mel Gibson’s DUI arrest and accompanying rant in California garnered extensive media coverage.  Savvy Media watchers may have noticed that his DUI was expunged last week and may be surprised. What is an expungement?  An expungement is when you have an arrest and/or conviction removed from your criminal record.  California law has extremely lenient DUI expungement provisions.  California law provides that

1) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation

2)  has been discharged before the termination of the period of probation

3)  in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, then the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.

Wow! Can you say free pass?

In Georgia, DUI offenders are not so lucky.  A Georgia expungement is only available by agreement of the Sheriff of the county of conviction and the prosecuting attorney without a statutory provision for expungement.  The following are examples of final court dispositions that may qualify: Dismissed: Not Presented to Grand Jury: No Further Action Anticipated; Nolle Processed/Prosequi; Dead Docket; or No Record on File.

Georgia expungement law provides specifically that: An individual has the right to have his or her record of such arrest expunged, including any fingerprints or photographs of the individual taken in conjunction with such arrest, if the prosecuting attorney determines that the following criteria have been satisfied:

(A)  An individual who was arrested for an offense under the laws of this state but after such arrest is released by the arresting agency without such offense being referred to the prosecuting attorney for prosecution; or after such offense referred to the proper prosecuting attorney, and the prosecuting attorney dismisses the charges without seeking an indictment or filing an accusation of this subsection;

(B) No other criminal charges are pending against the individual; and

(C) The individual has not been previously convicted of the same or similar offense under the laws of this state, the United States, or any other state within the last five years, excluding any period of incarceration.

This means that in Georgia if you are arrested but your case is dismissed before you ever even get a court date, you have a legal right to expunge your Georgia DUI.  Of course, this never happens.