You went out to dinner, had a few drinks, then picked up a DUI on the way home. Maybe it didn’t happen that way, but you are probably now wondering will this mistake be on my record for life? The answer depends on many factors; but before it is too late, always consult with an expert in dui defense law about the specifics of your case. Call 904-864-3002 for a free consultation about your pending DUI case in St. Augustine or surrounding areas.
If you are arrested for DUI, AND then convicted of DUI in court, you will not be able to expunge or seal the criminal history and/or records; ever. While Florida Statute section 943.0584 (entitled “Criminal history records ineligible for court-ordered expunction or court-ordered sealing), does not mention DUI as an ineligible offense; Florida Statute section 316.656 (entitled “Mandatory adjudication; prohibition against accepting plea to lesser included offense.”), provides that no court may withhold adjudication of guilt for any violation of s. 316.193 (DUI). See also Florida Traffic Court Rule 6.290 (Withholding Adjudication Prohibited).
Given the mandatory adjudication of guilt for a DUI, a driver convicted of DUI is ineligible to expunge the record because they will not meet the criteria of Florida Statute section 943.0584(1)(d) (Eligibility to expunge). Likewise, a driver convicted of DUI is ineligible to seal the record because they will not meet the criteria of Florida Statute section 943.059(1)(b) (Eligibility to seal).
As a result, the first step in a DUI case should always be to hire a lawyer who is an expert in DUI defense and criminal trial law. If your counsel is able to get the case amended to a reckless driving, you may be able to seal the record if the court withholds adjudication of guilt (and you have no prior convictions). If your counsel is able to get the case dropped, or you are acquitted at trial, you may be able to expunge the record if you have no prior criminal convictions.
An expungement and/or sealing are not automatic in Florida, and a person cannot begin the process until probation is terminated. Generally, the process to seal or expunge will take three (3) to six (6) months to complete from application to petition to FDLE compliance. In most cases, a driver who pleads to a reckless will be eligible to seal the record as opposed to expungement.
If your DUI was amended to reckless driving, you can expunge the record only after it has been sealed for 10 years or more.
The difference between an order to expunge versus an order to seal is that the records are physically destroyed if expunged. In both situations, the record is not viewable by the public. The expunged or sealed records should include the court docket and all filings, the booking photo, body cameras, and all reports.
A criminal history record which is ordered sealed by a court is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution and is available only to the following persons:
1. The subject of the record;
2. The subject’s attorney;
3. Criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law;
4. Judges in the state courts system for the purpose of assisting them in their case-related decision making responsibilities, as set forth in s. 943.053(5); or
5. To those entities set forth in subparagraphs (b)1., 4.-6., and 8.-10. for their respective licensing access authorization and employment purposes.
The subject of the criminal history record sealed may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:
1. Is a candidate for employment with a criminal justice agency;
2. Is a defendant in a criminal prosecution;
4. Is a candidate for admission to The Florida Bar;
5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;
6.a. Is seeking to be employed or licensed by, or contract with, the Department of Education, a district unit under s. 1001.30, a special district unit under s. 1011.24, the Florida School for the Deaf and the Blind under s. 1002.36, the Florida Virtual School under s. 1002.37, a virtual instruction program under s. 1002.45, a charter school under s. 1002.33, a hope operator under s. 1002.333, an alternative school under s. 1008.341, a private or parochial school, or a local governmental entity that licenses child care facilities;
6.b. Is seeking to be employed or used by a contractor or licensee under sub-subparagraph a.; or
6.c. Is a person screened under s. 1012.467;
7. Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is subject to a criminal history check under state or federal law;
8. Is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services;
9. Is seeking to be appointed as a guardian pursuant to s. 744.3125; or
10. Is seeking to be licensed by the Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm. This subparagraph applies only in the determination of an applicant’s eligibility under s. 790.06.
Subject to the exceptions in paragraph (b), a person who has been granted a sealing may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person’s failure to recite or acknowledge a sealed criminal history record.
Information relating to the existence of a sealed criminal history record provided in accordance with paragraph (b) is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that FDLE shall disclose the sealed criminal history record to the entities set forth in subparagraphs (b)1., 4.-6., and 8.-10. for their respective licensing, access authorization, and employment purposes.
But what about the license suspension? Can you seal the administrative suspension imposed by the DMV if you blew over .08 or refused a test? The answer is no. The statute governing the sealing of criminal records does not authorize the trial court to seal the administrative suspension of a motorist’s driver’s license for refusing to take breath test. See Department of Highway Safety and Motor Vehicles v. Rigau, 901 So. 2d 339 (Fla. 2nd DCA 2005).
The only way to keep the administrative suspension off your lifetime driving record is to challenge the suspension and have it invalidated after the formal review hearing. See our blog posts on ways to win at the DMV.
In regards to the administrative suspension: (a) if you default, (b) if you consent to the suspension and waive a formal review hearing, or (c) if the suspension is upheld after a formal review hearing; the administrative suspension for a breath test over .08 or for a refusal to submit, will be permanently on your driving record. An administrative suspension (civil penalty) for breath test over .08 can only be removed from a driving record if the person is acquitted at trial in the criminal case. See Florida Statute section 316.1932 (“Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal). See also Florida Statute section 322.2615 (Suspension of license; right to review).
Be aware that if you complete the DUI alcohol safety education course (Level 1 or Level 2), completion of the course will also be added to the driving record under “Driver Schools.” Similar to the administrative suspension, this entry cannot be sealed or expunged.
Board-Certified Criminal Trial Attorney Travis Mydock is experienced in all aspects of defending your DUI case, including issues related to the initial stop and arrest, field sobriety exercises, refusals to submit, breath tests on the Intoxilyzer 8000, DMV administrative formal review hearings, and jury trials. As an expert and specialist in DUI law, Mr. Mydock has handled every type of DUI case in Florida while on both sides of the courtroom. He has prosecuted AND defended every type of DUI case from first offense to DUI manslaughter.
Breath, blood, urine, or a refusal? Call 904-864-3002 for a free consultation about your pending DUI case in St. Augustine or surrounding areas.
* This blog post should be considered for education purposes only and not legal advice.