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Expungement of Conviction Doesn’t Bar Use of DUI as Basis for Firing Employee—C.A.
By a MetNews Staff Writer
The expungement of a drunk driving conviction did not preclude the Department of Corrections and Rehabilitation’s use of the offense as a basis for firing a parole agent, the Court of Appeal for this district held yesterday.
In an unpublished opinion by Acting Presiding Justice Kenneth Yegan, Div. Six affirmed Ventura Superior Court Judge Mark S. Borrell’s denial of a petition for a writ of mandate sought by the discharged employee, Patrick Barber. Other misconduct cited by the department included bringing his personal cellphone into the Ventura Youth Correctional Facility in contravention of a department rule, an express admonishment a week earlier, and being discourteous and hostile toward co-workers.
Arguing that the department improperly took into account his having driven with a blood alcohol content of 0.12%—with 0.08% constituting driving under the influence—Barber contended in his appellate brief that the charge “was rendered legally moot…after the Ventura County Superior Court dismissed the DUI on July 27, 2021 pursuant to Pen. Code, § 1203.4.”
Former Status Reinstated
He insisted:
“A grant of relief under Pen. Code, § 1203.4 is intended to reward an individual who successfully completes probation by mitigating some of the consequences of his conviction and, with a few exceptions, to restore him to his former status in society to the extent the Legislature has power to do so.”
Under §1203.4, where an eligible defendant has successfully completed probation, “the court shall thereupon dismiss the accusations or information against the defendant and” with exceptions “the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted.”
Yegan’s Opinion
Rejecting Barber’s stance, Yegan said:
“[A]ppellant’s dismissal was not based on his conviction of driving under the influence.”
Instead, as set forth in the department’s notice of adverse action, he was fired based on “conduct, in driving a car with a [blood alcohol content] above the legal limit.” He added:
“Dismissal of the criminal complaint against appellant does not alter the fact that he drove while under the influence of alcohol.”
The conduct would have justified dismissing Barber even if there had not been an arrest and conviction, he noted.
Government Code Section
The justice said substantial evidence supports the firing of Barber based on two provisions of Government Code §19572: “(d) [i]nexcusable neglect of duty” and “(t) [o]ther failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the person’s employment.”
A peace officer’s violation of the law, he remarked, in necessarily “a failure of good behavior.”
Barber’s other contentions were also found to lack merit.
The case is Barber v. California State Personnel Board, B334007.
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