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Will a DWI Stay On My Record? A New Law Makes This Easier to Avoid.

Posted by Ed McClees | Oct 26, 2017

One of the most common questions we receive when someone is arrested for DWI is whether a DWI will permanently remain on that person's criminal record.  As is so often the situation with the law, the answer is "maybe."

First, you need to be aware of the difference between an expunction and a petition for non-disclosure.  An expunction directs law enforcement and government agencies to destroy records of your charges and records of your arrest. Texas Code of Criminal Procedure Art. 55.03 allows a person who has obtained an order of expunction to "deny the occurrence of the arrest and the existence of the expunction order."

A petition for non-disclosure, on the other hand, "seals" the criminal record.  An order of non-disclose generally prevents public disclosure of a criminal charge.  However, unlike an expunction, law enforcement and many state agencies still are able to see these "sealed" records.

If a judge or jury delivers a "not guilty" verdict at your DWI trial, then you will be entitled to an expunction.  If your case is dismissed, then depending on the situation you may be entitled to an expunction.

But what if you decide that you do not want to try the case?  There still may be hope to keep a DWI conviction off of your record.

Pretrial Intervention:

Many counties have started pretrial intervention programs for certain DWI cases. Pretrial intervention, also known as pretrial diversion, is essentially a contract between the person charged and the prosecution.  The terms of this contract typically require the person charged with DWI to complete conditions that are very similar to a probation: attend classes, perform community service, meet with a probation officer once a month, do not drink, have a car equipped with a guardian interlock device, treatment if necessary, and other conditions.  If the person successfully completes these conditions, then the prosecutor agrees to dismiss the case.  While the terms of pretrial intervention vary from county to county (and from defendant to defendant), eventually the person charged will be able to get the record of the DWI arrest completely expunged.

New Non-Disclosure Law:

For years DWIs probations could not be the subject of a non-disclosure order.  On September 1, 2017, a new law went into effect that allowed a record of some DWI convictions to be sealed in certain circumstances.  This law allows a person who was convicted of a DWI to petition the court for an order of nondisclosure relating to the offense.  If this is granted, it "seals" the record of the DWI from public view, although there are still certain state and licensing agencies that can view the record.

If you were convicted of a DWI with a blood alcohol concentration of less than 0.15, then you may qualify to file for a petition for non-disclosure.  Even if a breath test or blood test alleged that your alcohol concentration was above a 0.15, you still may qualify if you were convicted of the "lesser" charge of DWI.

Call us for a no-cost consultation to further discuss how to keep a DWI off of your criminal record.

About the Author

Ed McClees

Ed is a criminal trial lawyer who is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a former Harris County District Attorney where he served as chief of the Organized Crime Section, prosecuting cases involving complex organized criminal activities, including Fr...

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