Being pulled over by a police officer is by no means a pleasant experience. Drivers are bound to feel confused and afraid when they hear the siren and see flashing lights in their rearview mirror, especially when they have had a couple of drinks. As a driver in California who likes to ‘take one for the road’, there’s a huge probability that you will be subjected to a field sobriety test at some point.
If you perform poorly on the FST, you may be thought of as impaired from alcohol, and that can be used as DUI evidence. If you thought that being pulled over was unpleasant enough, being slapped with a DUI after failing a field sobriety test will feel ten times worse. If arrested and charged with a DUI, you will most likely appear in court to get your sentencing. So, there is no time to wait after a DUI arrest to hire legal representation to defend your rights.
At the Law Offices of Ross H. Sobel, we have the experience, expertise, and competence to defend you against any type of DUI in Van Nuys, Los Angeles County, and Los Angeles. Whether you are charged with a misdemeanor DUI or a felony DUI, we will fight tooth and nail to get you off the hook. Attorney Ross H. Sobel has won thousands of DUI cases, and the outcome of your case will not be any different. Trust our top-rated law firm and our highly competent attorney to defend your rights all the way through.
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In the state of California, there are ways to prevent a past criminal arrest or conviction from haunting you for the rest of your life. But you have to follow very precise legal processes and file the correct paperwork in order to accomplish this. The stakes are too high and the legal "maze" too complex to try handling these kinds of petitions on your own.
The main options, aside from a pardon from the governor, are to have a juvenile record sealed, have an adult arrest record sealed, or have an adult criminal conviction record expunged.
At The Law Offices of Ross H. Sobel, we understand that having a DUI (or other criminal arrest or conviction) on your permanent record can make it difficult to find a good job and live a "normal" life. We know how to take you through the process of eliminating that roadblock in as little time as possible while maximizing the chances of success.
To learn more about how you can seal or expunge past criminal arrests or convictions under California law, contact us today by calling 310-788-8995. We will give you a free legal consultation and can quickly get started on your case!
What Is "Criminal Record Sealing" in California?
Criminal record sealing is a fairly broad term. It can refer to sealing a juvenile record in full or to sealing the arrest record for adults. Technically, criminal record expungement is a completely different process, but many people have expungement of criminal convictions on their record in mind as well when they think of getting their criminal record sealed - so we will mention that as well.
An arrest and accompanying court records can be "sealed" from public view so that it won't show up on background checks done for job applications (and so you can legally answer "no" when asked if you have ever been arrested.) Only applications for public offices, police jobs, professional licenses, and a few other things are exceptions to this.
Three years after an arrest record has been sealed, it will be totally destroyed, including "mug shots," fingerprint records, and arrest report. The arrest will, for all practical purposes, be treated as if it had never occurred.
Criminal record expungement is not a sealing of a criminal record but the "erasure" of one. It results in a "dismissed" entry replacing a "convicted" one on your record. It allows you to say "no" I was never convicted of a certain crime rather than "no" I was never arrested for it.
Adult Arrest Record Sealing
From here on we'll focus on criminal record sealing "proper" which is the sealing of an adult arrest record under the new California law (implemented on 1 January, 2018) PC 851.87.
The law makes it a matter of right to have one's adult arrest record sealed from public view (only law enforcement agencies can view it) IF:
- You were arrested, but no criminal charge was ever filed.
- A charge was filed against you, but it was dismissed in court or you won a "not guilty" verdict.
- You were convicted of a crime but then the conviction was overturned on appeal.
- You completed a drug diversion or deferred entry of judgment program.
Most people who file a petition for adult arrest record sealing can simply write in "matter of right" on the application form, if they meet the above-listed criteria.
Those who don't meet the normal criteria or who have a "pattern" of domestic violence, child abuse, or elder abuse must petition with "interests of justice" entered instead. This means that the burden of proof is on the petitioner to make a declaration (under penalty of perjury) to the court as to why they should be allowed to have their arrest record sealed.
It's especially critical to have expert legal help when applying for arrest record sealing on the basis of "interest of justice" instead of "matter of right."
At The Law Offices of Ross Howell Sobel, we can help you every step of the way through the entire process of applying to get your arrest records sealed.
What Is the Purpose of Arrest Record Sealing?
Before PC 851.87, it was already illegal for employers to refuse job applicants based on a prior arrest that did not result in a conviction; but because such arrests came up in background checks, many employers likely avoided hiring people anyway on this basis without actually saying that was the reason.
But now, sealed arrest records will not show up in background checks, except those run by law enforcement agencies. There are very few exceptions to this. It will now almost always be impossible for most employers to turn down a job applicant based on a past arrest that didn't lead to a conviction - because they won't even know about it.
This makes more sense in that, under the former system, innocent people who were arrested and charged with a crime often had to suffer negative consequences for the arrest for many years to come, even if they won their case or the case against them was so flimsy it ended up being dismissed.
Who Can't Have an Arrest Record Sealed?
If you were actually convicted of a crime, you can't have the arrest record sealed - you can only seek expungement.
If you were arrested but not charged AND the statute of limitations has not yet run out on that charge - you can't file for record sealing until it does run out. For misdemeanors, the statute of limitations is usually 1 year; for felonies punishable by less than 8 years in prison, it's normally 3 years; for felonies punishable by 8 or more years in prison, the statute of limitations is typically 6 years.
BUT, there are some crimes that have no statute of limitations, such as murder. You have to be found innocent, you can't get the arrest record sealed for murder or certain other high level charges.
If you evaded prosecution for a crime, perhaps by leaving the state for years on end, you can't get an arrest record sealed just because you were never charged.
Finally, as mentioned earlier, if you have a "pattern" of domestic violence, child abuse, or elder abuse, your request for arrest sealing could be denied. A pattern is legally defined as 2 or more convictions OR 5 or more arrests within a span of three years for separate incidents.
But you can petition on the basis of "interests of justice" even if you have such a pattern on your record. Possible reasons you could argue would be: undue hardship, evidence/testimony to your good character, and evidence favoring your factual innocence.
What Arrest Sealing Cannot Do
We've already seen that sealing your arrest record can prevent potential employers, landlords, and others running a background check on you from seeing the arrest(s) in question.
But here are a few things you should know arrest sealing can't do:
- Prevent a prosecutor from accessing and using a past arrest in a trial for a future charge you face.
- Prevent law enforcement agencies from accessing your arrest record at any time, whether sealed or not.
- Cancel a sex offender registration requirement.
- Reinstate gun rights or cancel a prohibition against holding public office.
- Allow you to say you were never arrested if applying for public office, a police job, or a professional license.
If seeking a professional license, the best approach is to try to get a certificate of detention from the arresting law enforcement agency, stating that you were "detained" but not technically "arrested," rather than to seek arrest record sealing.
How Long Does It Take to Seal an Arrest?
As soon as you are eligible to petition to seal one or more arrests (that did not result in a conviction) on your record, you can do so and there is no time limit that ever ends the right to file.
But after the paperwork is all properly filed, you still have to wait for the judge to set a hearing date. And you have to notify the DA and the agency that arrested you (serve them your petition) at least 15 days before your schedule hearing.
Then, if the court decides to seal your arrest record, they must notify the law enforcement agency that arrested you of this fact within 30 days of the order to seal.
The entire process often takes as long as 90 days to complete.
Contact Us Today for Immediate Assistance!
At The Law Offices of Ross H. Sobel, we understand the legal minutia and the complex local court procedures involved in getting an arrest or juvenile record sealed OR in getting a criminal conviction expunged.
We have helped many others in the Los Angeles County, the Los Angeles Area, and beyond put their past criminal record behind them, and we stand ready to do the same for you!
Contact us anytime 24/7/365 by calling 310-788-8995, and we can give you a free no obligation consultation on the details of your case!
What are Field Sobriety Tests?
Field sobriety tests (FSTs) are a series of physical and mental exercises that are usually administered by police officers in DUI investigations. These tests are meant to test your balance, coordination and divided attention. Even though there are dozens of FSTs that are usually used by law enforcement agencies, only three of these tests are validated as reliable by the National Highway Traffic Safety Administration (NHTSA). They include:
- Horizontal Gaze Nystagmus (HGN) Test
Nystagmus is basically an involuntary jerking of the eyes that occurs when you move your eye toward the side. While there are different kinds of nystagmus that are influenced by alcohol, the one that is used in DUI investigations is the horizontal gaze nystagmus.
When administrating the HGN field sobriety test, the police officer will instruct you to follow (with your eyes) a stimulus to the right and to the left. The officer will note the angle at which your pupil begins to show nystagmus. An early beginning of nystagmus – at or before a forty-five-degree angle) - is linked to a high blood alcohol concentration.
Based on tests conducted by the San Diego Police Department, NHTSA believes that the horizontal gaze nystagmus test is 88 percent reliable. This means that 88 percent of the time this test will accurately establish whether a driver has a Blood Alcohol Concentration (BAC) of at least 0.08 percent.
- Walk and Turn (WAT) Test
This is essentially a “divided attention” field sobriety test that requires you to concentrate on both physical and mental tasks simultaneously. This test is often referred to as the 9-step test, the 9-step walk turn, the DUI straight line test, or the DUI walk the line test.
When subjected to the walk and turn test, you will be asked to follow and memorize instructions while performing certain physical movements such as pivoting around, taking 9 heel-to-toe steps on a real or imaginary line, and taking 9 heel-to-toe steps back. When performing this test, the police officer will watch out for various signs that may indicate impairment. Particularly, the officer will be looking to see if you will:
- Start too soon,
- Keep your balance,
- Stop while walking,
- Fail to touch heel-to-toe,
- Step off the real or imaginary line,
- Use your arms to balance,
- Fail to turn correctly,
- Take an incorrect amount of step.
NHTSA believes that there is a 79 percent correlation between poor performance on the walk and turn test and a Blood Alcohol Content of at least 0.08 percent.
- One Leg Stand (OLS) Test
This is the 2nd “divided attention” test of the 3 standardized FSTs. During the OLS test, the police officer will ask you to:
- Raise your foot about 6 inches off the ground,
- Maintain that position,
- Count from 1001 to 1030,
- Look down at your foot.
During this test, the police officer will be looking out for certain signs of impairment, such as swaying, hopping, using your arms to balance, or putting your foot down. NHTSA believes that there is an 83 percent chance that any driver who exhibits at least two of those signs during the OLS test has a BSA of 0.08 percent or more.
Nevertheless, NHTSA emphasizes that the high correlation between the three standardized FSTs and DUI impairment only applies when the tests are carried out under appropriate and safe conditions. The conditions that can affect the legitimacy of FSTs include:
- Surface conditions: The tests should be conducted on a surface that is hard, dry, level and non-slippery. This is to reduce the risk of falling. Furthermore, there should be sufficient room for the driver to perform the test.
- Lighting conditions: There should be adequate lighting to ensure that the driver can see the police officer and the ground clearly. If there’s inadequate lighting, the officer should use a flashlight.
- Auditory conditions: The environment should be fairly quiet so that the driver can hear the officer’s instructions.
For the standardized FSTs to be deemed valid, they must be carried out in the prescribed, standardized manner. In case any of the above elements is altered, the legitimacy of a field sobriety test may be compromised.
Besides the above NHTSA standardized FSTs, there are various other FSTs that are often used by California police officers in DUI investigations. They include:
- The hand pat test
- The finger-to-nose test
- The finger count test
- The Rhomberg balance test
The reason why NHTSA hasn’t standardized the above field sobriety tests is because of their correlation with DUI impairment has not been demonstrated just yet. Moreover, procedural administration of these tests varies greatly from one law enforcement officer to another. Therefore, the accuracy and/or legitimacy of these non-standardized FSTs is questionable.
Are Field Sobriety Tests Mandatory in California?
Good news is that field sobriety tests, standardized or not, are not mandatory. However, police officers don’t usually tell drivers this. Instead, they use the results of tests to justify the arrest and gather DUI evidence against drivers at the DMV or in court. You should know that it’s your right to politely refuse any FST. Refusing to take the test cannot be used against you.
While you have the right to refuse an FST, you do not have the right to refuse a chemical test (urine, blood, or breath test). Your refusal to a chemical test will be deemed as an admission of guilt on your part, and it can cause you problems with both the court and DMV systems.
If you get arrested after failing an FST, you will be tempted to argue, fight, curse, or spit at the officer. DON’T! Doing so will only make the situation worse, and additional charges may be made against you. It’s best to be calm, polite, and courteous. If interrogated, you can choose to exercise your Fifth Amendment right and remain silent. At this point, you can request to call a lawyer.
How Law Offices of Ross H. Sobel Can Help
Our skilled and experienced DUI defense attorney can defend you against DUI charges and secure the best possible outcome for your case. To get you off the hook, the attorney can use a wide range of defenses to challenge the FST results. The attorney could argue that:
- The tests were not conducted under appropriate conditions,
- A physical condition other than alcohol/drug intoxication caused you to perform poorly on the test, such as age, weight, sickness, pain, ear/leg/foot/back problems, etc.
- A mental condition other than alcohol/drug intoxication caused you to perform poorly on the test, such as a mental disability, mild brain damage, nervousness, etc.
- The officer exhibited forms of distractive behavior (such as walking around) that made you perform poorly on the test.
- You were wearing unsuitable attire, i.e. high heels, tight shoes, tight pants, beltless pants or jeans, gloves, or any other type of clothing that hampered your ability to perform the test effectively.
The consequences of having a DUI charge are serious and far-reaching. You may not only lose your driving license, but you could also spend some time in prison, pay hefty fines, or miss out on employment opportunities. Don’t let a field sobriety test stand in your way.
The Law Offices of Ross H. Sobel can offer you the best legal representation to ensure that the DUI charge resulting from a field sobriety test is dropped. Contact us or call us at 310-788-8995 today for a free consultation and to find out how we can help.