Exception to the 'No Deferred Adjudication for DWI' Rule

Decatur Texas defense attorney Barry Green left a comment on a post sometime back, and I meant to publish it, as soon as I got around to correcting my error. Done – although, it took a reminder from his blog for me to finally get around to doing it.

In his comment he politely points out that my knee-jerk reaction to a reader’s question (“Should he plead not guilty or try for deferred adjudication?”) was “a bit unclear” because she was talking about a Felony DWI with Child Passenger charge, not a plain old ordinary first time DWI. Turns out Barry was being kind in his comment.

Love your blog but I think something was a bit unclear here. Unless I'm wrong, CCP 42.12 Sec.5 still has the loophole to allow for deferred adjudication for the offense of DWI w/ Child. (Certainly, that option will be legislatively abolished one of these days.) But, for now, I can still get that offer on occasion up here in North Texas.

Since the question dealt specifically with State Jail Felony charge of DWI with Child Passenger, my answer was flat wrong. The specific question in the post was:

Should he plead not guilty or try for deferred adjudication?

My original answer:

Unfortunately, there’s no deferred adjudication for DWI in Texas. There are, of course, other negotiable non-DWI options however, even for State Jail Felony DWI arrests.

You can indeed get deferred adjudication for that charge, although I’m sure it was a legislative mistake. The section prohibiting deferreds for DWI charges is in the Code of Criminal Procedure, while the ‘new’ section for State Jail DWI is in the Penal Code. When they added the new offense, they forgot to go back and prohibit deferreds in the appropriate section, so it is indeed possible.

Part of my error is that when I hear that question (“Plead Not Guilty or Go For Deferred?”) in other non-DWI contexts, and I usually explain that there are other options besides (a) going to full blown jury trial and (b) ‘settling’ for deferred adjudication.

One day, I’ll write a post about why it’s good there’s no deferred adjudication for DWI. (Short version: deferred’s not always that good of an option, so it encourages trying cases.)

In the meantime, thanks for the complements Barry, you sent quite a few readers this way; over 100 in fact, and everyone else out there, please feel free to tell me when I get something wrong.

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Laura Thomas - March 7, 2008 11:38 AM

I'm defending myself in an upcoming ALR. However, I do have an attorney for my DWI case. I've decided to take probation (less fees), but would like to know why you say a deferred is not a good option (actually, my attorney didn't even offer that option). This is my first offense.

david odom - March 4, 2010 4:02 PM

i am currently serving dadj for obstruction/wreckless driving. can my dwi be took off of my record when the statute of limitations runs out on it even though i am still on probation? i never plead guilty or not guilty to the dwi, it just got reduced to obstruction with/dadj probation

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