Texas DWI Deferred?

   Hello, Mr. Spencer, I am a very concerned Texan about a DWI charge with a deferred adjudication given back in Nov. 1998 when I was 19 years old. That has been more than eight years ago. When I got a copy of my criminal history I learned that the arrest was made but when it came to final pleading it said "unknown/unreported", but does not say "not guilty", nor "nolo contendere"? 

   What's up with this? I came across your website by accident and I read "there has been no deferred adjudication in Texas for DWI since 1984". Well Mr. Spencer, with all due respect, and I can assure you I am not lying to you, I do have a deferred adjudication on a DWI after 1984.

   Things keeps getting better, at the same time I was concurrently charged with evading arrest (Nov.98) with deferred adjudication, one year of probation. One day when I had to report to my probation officer for my evading arrest charge, I told him about the DWI charge and asked if I was going to serve it concurrently with evading arrest. He said what DWI? He did not know I even had it! 

   He said he was going to look for the report but couldn't find it in his office, and off he went to the city where I was originally arrested and couldn't find it either, and finally sent me to the county clerk office to see if the DWI report was there, neither. I went back to his office and told him what was happening and he said I was lucky that the papers got lost?! Up to date I am 100% sure I did not receive probation for this charge nor A.A. classes nor reported to my probation officer up-to-date. It's been over 8 years.

   What can be done from here should I expunge the record if possible or should I go with motion for non-disclosure? What is your best advice?

[email from “Name Withheld”]

There are several questions in this email; let me try to address them.

First, Deferred Adjudication for DWI, after 1984. While the law was changed to reflect that Deferred was not available to DWI offenders after September 1st, 1984, in fact, many counties kept giving it anyway. I suspect this was because they were unaware of the change in the law.

I know, from gathering prior records on DWI second and felony DWI clients in Austin, whose priors were in other Texas counties, that this happened, because I’ve seen it.  That actually presents some potentially favorable legal issues for the defense regarding enhancement of future DWIs, but I will address that question some other time.

My experience is that 1998 was a little late for any county in Texas to figure that out, but then again, you never know. Basically, if you plead no contest or guilty to the DWI, and the judge said something like “in the interest of justice I’m going to defer a finding of guilt and place you on community supervison…”, then you received deferred, even though technically you weren’t supposed to be able to.

Second, there’s really no such thing as “your criminal history”. Or perhaps I should say it this way: even this long after 9/11, there is no central database for all criminal history records. There’s only a variety of different agencies that have records of your arrest, and not all of them show what the disposition was. Even Texas DPS, which is the closest thing to a central depository for criminal histories, often shows “disposition unknown” as the resolution to cases that were resolved years ago.

You would need to go to the County Clerk’s office in the County in which you were arrested, not where you were supervised for the evading, and do a search for yourself by name and date of birth. In fact, in your case, I advise you to do it immediately, because you want to ensure that you got credit for the probation that you did for both cases.  If that doesn't do it, I'd contact a criminal defense lawyer in that county, and go from there.  If they were in the same county, contact a local attorney.

What you don’t want is some county in Texas thinking you were supposed to be reporting to their probation officer, but never did. If their computer tells them that, they may have issued a warrant for violating probation conditions (even though you were reporting in another county).

As far as expunction vs. motion for non-disclosure, an expunction is better, but you need to find out the disposition of the case, before you’ll be able to know if you are eligible for either.

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