Penal Code 1473.7 is a powerful tool in California law to reverse the adverse immigration consequences of some criminal convictions, such as deportation, denial of naturalization, denial of amnesty, and exclusion from entering the United States. The law looks for people who would not have taken a plea deal if they knew it had specific immigration consequences.

What is Penal Code section 1473.7, and when does it apply?

Penal Code section 1473.7, which went into effect in California law on January 1, 2017, allows individuals who are no longer in criminal custody to petition the court to withdraw their guilty or no-contest pleas because of “prejudicial error” affecting their ability to understand the negative immigration consequences of their plea. That means that the individual needs to show the court that he or she probably would have rejected the plea deal if he or she knew of the immigration issues. If the court agrees with you, the judge will let you withdraw your not guilty plea or no-contest plea. The prosecutor will then decide whether to continue with your case or dismiss it.

Basically, one the judge grants your plea withdrawal, you are no longer guilty of the particular charge you plead guilty to. Now the case becomes an open criminal case, and you can fight the case or work out another deal.

What does a motion to vacate conviction in California mean?

A motion to vacate a conviction in California usually means that the defendant is asking the trial judge to take away his or her guilty or nolo contendere plea because his or she did not fully understand the potential immigration consequences of their plea bargain. But Penal Code section 1473.7 also allows a defendant to file a motion to vacate a guilty or nolo contendere plea because of new evidence of actual innocence or because the conviction or sentence violated the Racial Justice Act.

For example, if your defense counsel discovers new evidence that shows that shows your conviction or sentence is factually or legally invalid, he or she can ask the judge to take back your guilty plea and judgment. A great example is newly discovered evidence, such as DNA from the crime lab, that shows that you are innocent.

If the court grants your motion to vacate, the judge will remove your conviction and sentence and substitute it for a not guilty plea. You can then work out a new plea with the prosecutor or fight your case at trial.

What do I have to show to win my motion to vacate?

To win your motion to vacate, you need to show a “reasonable probability” that you would have rejected the plea deal if you knew of the negative immigration consequences. Courts look at things like your ties to the United States, the importance you placed on avoiding deportation, your priorities in seeking a plea bargain, whether there was reason to believe that you could have got an immigration-friendly offer, your remaining ties, if any, to your home country, your immigration status when you took the plea, your criminal history, and your employment history.

Basically, the court wants to know if you are someone who is well-connected to the United States who is not experienced with the legal system and has plans of remaining here because your family is here, your work is here, or there is something else that makes the United States your home. But someone who knows that they have no legal status, who is experienced in the legal system, and has few times to the United States likely would not qualify.

When do I need to file my Penal Code 1473.7 petition?

According to the law, the judge in trial court must find that your petition is timely so long as you filed it when you are no longer in criminal custody for that case.

But the court can find it untimely if you did not file it “with reasonable diligence” after the later of either you got a notice to appear in immigration court due to that conviction or after notice of a final removal order based on the conviction. So if you're already in immigration custody, a court might find that you're too late to file the motion. But you absolutely still can try to file the motion.

Essentially, you and your attorney need to file the petition without undue delay when you realize the criminal, conviction or sentence you have might cause you adverse immigration consequences. If you have any concerns regarding your conviction, you should contact an experienced criminal-defense or immigration attorney promptly to go over your situation.

Who has to prove that I suffered prejudicial error in understanding the immigration consequences of my conviction?

You do. PC 1473.7(e)(1) says that the person filing the motion to vacate has to show by a “preponderance of the evidence” that they qualify for relief. A preponderance of the evidence means more likely than not.

What will happen at the hearing on my motion to vacate based on potential adverse immigration consequences?

At the hearing on your motion to vacate, the judge will review you and your attorney's motion and supporting documents. Either you or the prosecution may call witnesses or submit documents or other exhibits to the judge.

Sometimes a defense attorney may want to call the lawyer who represented you when you pleaded guilty to show the judge that the lawyer gave you ineffective assistance of counsel by not advising you correctly about your deal. But it is not necessary for you or your lawyer to prove that the last lawyer provided ineffective assistance of counsel to win your motion to vacate.

What happens if I win my Penal Code 1473.7 petition?

If you win your motion to vacate, the judge must allow you to withdraw your guilty or no-contest plea. (PC 1473.7(e)(3)) The judge will issue an order granting your motion. The prosecutor will then either dismiss your case or continue to prosecute you for the original alleged crime. You and your lawyer might then work out a new deal with the prosecutor or set the case for trial.

What is habeas corpus and how does it relate to PC 1473.7?

Under state law, a habeas petition asks the judge reviewing the motion to release you from custody or from the sentence imposed for your criminal conviction. A person ordinarily files a habeas corpus petition when they are still in custody. But section 1473.7 only applies after a person has been released from custody for that particular case.

Under California law, a person who already filed a habeas corpus petition may still file a motion to vacate later when they are released from custody. (People v. Jung (2020) 59 Cal.App.5th 842, 855.)

What should I do if I think PC 1473.7 might apply to my case?

If you have any questions about whether you qualify for a motion to vacate under PC 1473.7, you should contact an experienced, criminal-defense attorney today. Immigration consequences can be very complicated, especially in light of the intricacies of California criminal law. You need someone highly qualified to represent you. 

Here at the Olen Firm, we have extensive experience in navigating the negative immigration consequences of criminal convictions. We invite you to call us at 213-999-8380 for a free consultation about your case.

DUI is a legal acronym for Driving Under the Influence, commonly known as drunk driving. It's a criminal offense in California that the prosecution will typically use your blood alcohol concentration (BAC) to prove. The amount of alcohol in your body can affect your judgment, depth perception, and balance. That's primarily based on how many drinks you've had and your body weight.

Other factors might figure into the equation, like how much you've eaten or how much sleep you've had too. The one thing that's for sure is that a DUI conviction can operate to impact your driver's license, your personal freedom, and your career.

How California’s DUI Laws Define the Offense

In California, a person need only be under the influence of an alcoholic beverage and driving a vehicle to be found guilty of drunk driving. The car need not even move.

California Vehicle Code 23152 VC

The legal definition of DUI in California is broad. 23152(a) VC states that it is unlawful for any person under the influence of any alcoholic beverage to drive a vehicle. A case can pivot on whether a person was "under the influence."

23152(b)VC then states that it's against the law for a person to drive a motor vehicle with a blood alcohol concentration of .08 or higher. It's standard procedure for a law enforcement agency in California to charge a suspected DUI offender with violations of both 213152(a) and 23152(b).

By charging accordingly, both definitions of a California DUI are covered.

DUI Causing Injury Charges

Section 23153 VC details the California offense of a DUI that causes injury. Although a DUI arrest is ordinarily a misdemeanor, the charge can be a felony if a person is convicted of a DUI causing injury.

Again, the term "injury" is interpreted broadly. This offense is punishable by up to four years in state prison, a fine not to exceed $5,000, and a driver's license revocation for up to five years.

California Scooter Laws Define the DUI Scooter Offense

California's electric scooter DUI statute is found in section 21221.5 VC. Although directed explicitly at scooter riders, the statute contemplates only "motorized" scooters.

A person can get charged for driving with a blood alcohol content above 0.08. Still, he can also be charged with a violation under .08. The distinguishing factor is that the suspect can request testing to determine their blood alcohol concentration. It might be determinative of sobriety.

Another distinguishing factor of the scooter law is that a convicted person's driver's license and driving record may not be impacted.

California Legal Blood Alcohol Limit in 2022-2023

The legal limit in California for most adult drivers is a BAC of 0.08. For those with a commercial license, it drops in half to 0.04. That includes taxis, limos, and ride-sharing drivers. For a minor, though, it's .05.

Drug or Marijuana DUI in California

As opposed to alcohol, there is no legal limit for marijuana in California. Driving under the influence of marijuana is a crime in California under 23152 VC. Per section 2110 of the California Criminal Code, a person is under the influence of marijuana if they cannot drive the vehicle "with the caution of a sober person" who uses ordinary care under the circumstances.

Based on the traffic stop's circumstances, that becomes a question for the bench or jury. As marijuana testing has proven unreliable, an officer making a traffic stop of a driver suspected to be under the influence of marijuana might call for backup in the form of a human drug recognition expert whose testimony is generally admissible.

Notwithstanding the reliability of the tests, a test refusal will cause a one-year suspension of the individual's driver's license. The penalties for driving under the influence of marijuana are much the same as for driving under the influence of alcohol.

DUI Penalties in California Based on Prior Offenses

As expected, DUI penalties in California founded on prior DUI offense are based on a progressive scale. Here's how they increase:

First Offense DUI

A conviction is a misdemeanor punishable by a fine between $390 and $1,000. Costs and assessments can quickly bring this to $3,500 or more with up to six months in jail.

As per the person's driver's license, the suspensions become complicated, but a person can apply for a restricted license for and from work and school after 30 days. Three to five years probation will be imposed. There will be 30 hours of DUI classes. If the person's BAC is 0.20 or above, DUI school will increase to 60 hours.

Second Offense DUI

Second Offense DUI is also a misdemeanor punishable by the same fines and costs as a first offense, but the total can be as high as $4,000. Jail time can be up to one year.

Again, the license suspensions are complicated, but there is a 90-day license suspension. The restricted driving permit is the same.

Note that if the DUI involves drugged driving, the 90-day suspension turns into one year. There are three to five years of probation, and the defendant must complete an 18 or 30-month DUI class. Mandatory installation of an ignition interlock device for one year is required.

Third Offense DUI

Third Offense DUI is when California starts getting very serious. Again, fines can be between $390 and $1,000, but administrative costs can be as high as $18,000.

A defendant can also get sentenced to 18 months in state prison. There is a three-year license suspension after a six-month suspension. He may obtain a restricted driving permit. It allows driving to and from work or school. There are three to five years of DUI probation, and he must complete a 30-month DUI program. Then, there's a mandatory 2-year installation of an ignition interlock device.

Fourth Offense DUI

The system has now lost patience with the defendant. Fines and administrative costs can be between $390 and $5,000, with other expenses totaling up to $18,000 between 16 months to 3 years in prison.

There will be a driver's license suspension for up to four years that could be permanent.

If the defendant keeps his driver's license, an ignition interlock device will be required for four years. He will also carry the status of a convicted felon for life.

Special Penalties for Refusing the Chemical Test

California is what's known as an implied consent state for DUI chemical tests. That means you must submit to a blood, breath, or urine test if you're pulled over for a suspected DUI.

If you refuse to submit to the tests, not only will you still be confronted with the DUI charge, but you'll also be facing other penalties due to the refusal.

Even if you're found not guilty of the DUI, those penalties are independent of that finding. They also increase with the number of DUIs that you've had in the past.

Note that a portable breath test is generally inadmissible to determine guilt or innocence. Refusal of a proper breath test will result in the DMV suspending your driver's license for at least one year. That suspension may or may not be lifted, depending on the circumstances.

Penalties for DUI Under 21

Unlike adults over 21, if a teenage driver is asked to blow into a portable breath testing device or a Passive Alcohol Tester (PAS), he must do so. Failure to blow will result in a one-year suspension.

If he gets convicted of a DUI, the suspension period is two to three years. There are three levels of suspension, depending on the blood alcohol concentration of the individual. Those follow:

• BAC of 0.01 to 0.04: A traffic court infraction and a one-year driver's license suspension. The suspension can be contested.
• BAC of 0.05-0.07: A one-year license suspension plus fines and costs. DUI school for three months and possibly being inducted into the Youthful Drunk Driving Program. It's like a "scared straight" program.
• BAC of 0.08 and Above: You're above the legal limit for driving drunk. You'll be facing standard DUI penalties, even as a teen. Those include up to six months in jail, a fine between $390 and $1,000 with maximum exposure of $5,000, a three-month DUI program, and three to five years of probation. For felony DUI, there may also be restitution to the victim.

DUI for Commercial Drivers

Unlike non-commercial drivers, commercial drivers are guilty of DUI with a blood alcohol concentration of 0.04 or above.

A conviction would carry a suspension of at least one year, even if a commercial vehicle weren't involved.

A commercial driver who refuses alcohol testing suffers a one-year license suspension. No restricted driving permits for a commercial driver's license are available.

A second conviction causes the loss of the defendant's commercial driver's license for life. That puts him out of business forever. The penalties for a first offense are identical to a California regular license, but the suspension period is longer.

Get Assistance From a California DUI Defense Lawyer

A knowledgeable and skilled California DUI attorney must be retained to represent anybody facing a California DUI.

You don't want your real estate or divorce lawyer handling the complicated evidentiary issues of a DUI case. An attorney who concentrates his practice on California DUI laws is needed.

Contact Our Skilled DUI Attorney at Olen Firm to Help You With Your Case

After being arrested for violating California DUI laws, you must obtain the finest, most professional, and responsible representation. It will be best if you act quickly, though. Your driver's license, freedom, and job are all at stake.

Contact us at Olen Firm for legal representation of the highest quality. With the Olen Firm, you get experience, passion, and results.

Senate Bill 1393 became effective on January 1, 2019. In short, Senate Bill 1393 restores a trial court’s discretion to strike five-year sentencing enhancements that were previously mandatory under Penal Code section 667(a). This means that five-year enhancement for previous “serious felony” convictions are no longer mandatory.

Did SB 1393 pass?

Yes, this new law passed the California legislature and was signed into law on October 1, 2018, by Governor Jerry Brown. Now that it has passed, it is valid law in California for courts to apply.

What is a nickel prior under California law, and how does it relate to this new law?

Existing law under section 667(a) mandates a five year sentence enhancement for any person who was previously convicted of a prior serious felony (whether in California or in another state if the out-of-state offense would qualify as a serious felony under California law) on top of the sentence for the crime committed in the new case. The law also requires that this enhancement run consecutively, which means that a person will serve the five years after the time for the new case.

Lawyers and judges often call these five year sentence enhancements "nickel priors" because they add five years to someone's sentence.

“Serious felonies” means all “strikes,” including violent felonies under Penal Code section 667.5(c) and serious felonies under Penal Code section 1192.7(c). Examples include, but are not limited to,

• Murder
• Mayhem
• Sodomy
• Rape
• Lewd acts with someone under 14
• Assault with a deadly weapon
• Arson
• Robbery
• Carjacking
• Attempted murder

Previously, a trial judge had no discretion to strike this enhancement for a prior serious felony conviction. But effective January 1, 2019, the court now has the power to strike the enhancement. (Pen. Code, § 1385(a).) The court may also simply strike the punishment for the enhancement. (Pen. Code, ­§ 1385(b).)

If the trial court does strike the enhancement, that does not mean that the prior serious felony conviction comes off someone's record. Instead, it just means that the court will basically ignore that prior serious felony conviction for the purpose of the new sentence.

What does SB 1393 do?

SB 1393 gives trial judges back the power to strike, or get rid, five-year sentencing enhancements under Penal Code section 667(a). The law amended section 1385 to give judges discretion to get rid of enhancements. These enhancements apply whenever someone was previously convicted of a serious felony under the California Three Strikes Law. The trial judge used to be prohibited by law from striking these enhancements for prior serious felony convictions.

When is SB1393 effective?

SB1393 became effective on January 1, 2019.

Does the trial judge have to strike the five-year enhancement for a prior serious felony conviction?

No. SB1393 gave trial judges discretion to strike the enhancement. But they do not have to do so. A judge will look at many factors to determine whether to strike the five-year sentencing enhancement, such as the age of the prior conviction, the facts of the new case, the defendant’s criminal records, whether the defendant was suffering from mental-health or other issues, and others.

Is SB 1393 retroactive to old cases?

In short, the statute is not generally retroactive to cases that are already “final.” (See In re Estrada (1965) 63 Cal.2d 740, 744.) A conviction becomes final “when it has reached final disposition in the highest court authorized to review it.” (People v. Lopez (2020) 57 Cal.App.5th 409, 413.) That means that a case is final when the last appeal has been exhausted.

So for people who received five-year sentencing enhancements under Penal Code section 667(a) and whose cases were final prior to January 1, 2019, they sadly cannot benefit from this new law most of the time.

There is a potential "exception" to whether this new law is retroactive.

There is, however, an exception. Some new sentencing laws allow for a brand-new sentencing hearing if the person otherwise qualifies for resentencing. Some examples include defendants whose convictions for murder, attempted murder, or voluntary manslaughter were vacated under Penal Code section 1172.6 (SB1437) and defendants who have certain sentencing enhancements stricken under Penal Code sections 1172.7 and 1172.75 (SB483) relating to certain drug enhancements and one-year prison priors.

So, for example, if a defendant qualifies to have their one-year prison prior enhancement under Penal Code section 667.5(b) stricken under Penal Code section 1172.75 (SB483), then the defendant is entitled to a new sentencing hearing. At that hearing, “[t]he court shall apply . . . any other changes in law that reduce sentences or provide for judicial discretion . . . .” (Pen. Code, § 1172.75(d)(2).) This means that an attorney could argue that the judge use his or her discretion to go back and strike the five-year enhancement under Penal Code section 667(a).

Can I file a petition to request that the sentencing judge take away my five-year prior?

In short, no, you cannot file a petition under this new section. That is because the law does not allow for a defendant to file a motion in the trial court specifically under this new law.

But, if a case is pending in the superior court or on appeal, the law will apply to that case. That means that if a case is pending an appeal, the defense attorney can ask the sentencing court revisit the sentence at a hearing and potentially remove the nickel prior.

What do I do if I think my case qualifies for SB 1393?

If believe that you or your loved potentially qualify for a lesser sentence under the law, it is very important that you contact a knowledgeable criminal defense lawyer who is experienced with post-conviction proceedings. The law is continually changing, and you need a qualified lawyer to guide you to the correct result for your case.

Here at the Olen Firm, we have extensive experience in post-conviction proceedings, including all recent sentencing changes in California law. Contact us today for a free consultation regarding your case.