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.

DWI, Statute of Limitations and Driver's License Questions

Question: My wife and I were pulled over in August 2005 on a rural road approximately 5 miles from my house by DPS who at the time was going the other direction on a two lane road. 

We had been out seeing my wife’s favorite band and it was her night out.  He asked me if I know what we were pulled over for and I say no.  License plate light out!  So no big deal until he shines the light at my wife and says, “What’s wrong with her?”

"She's sleeping,” I say.  Well he asks where we have been and I'm truthful, her night out and I'm the designated driver.  He proceeds through the get out of the car deal, does the eye test, then the one leg to 30, then walk the line....then the finger count....no problem here.....

He goes and finally wakes up my wife and talks with her.  Well she's hammered of course.  Then he comes back and arrests me after I refuse the breathalyzer. 

Then he arrests her for public intoxication.  I convince him to let a friend come get her and the vehicle.  He does and takes me to the pokey.  Since then my lawyer has sent three letters to the court letting them know when he will be out of town.  The court has never sent anything to me at my home or office. 

Since it has been two years, can I stroll down to the DPS and get my license or will they snatch me up?  I appreciate any input. 

Reply: What county is this from?  Also, you are saying it has been almost two years from the arrest?  The ALR suspension would usually be over well before then.  (Unless there are priors, perhaps...do you have any prior DWI arrests? or prior alcohol related license suspensions?)

Follow Up: I had one prior when I was 20 and I was 35 when I got this one.  Yes two years since arrest in August.  It is in [Anonymous] County.  I got my license suspended for not taking the breathalizer. 

I haven't done anything since.  No license, [rest of sentence deleted]. But if I can go and get it without being harassed I would love to do so.

Reply: Well, the 15 year old DWI can now (unfortunately) be used to enhance your new DWI charge to a DWI 2nd.  It used to be the law that after 10 years, new DWI charges would be filed as Class B 'first offense' DWIs.  But that's no longer the case.

But ALR (pretrial Driver's License Suspensions arising out of the DWI arrest) only started in 1995, so you shouldn't have any enhanceable alcohol related contacts.  If there were prior DWI related license suspensions within the applicable time period, DPS would have sought a 2 year suspension.

I asked because based on your facts, it sounds like DPS probably sought a 180 day license suspension, which would have started either 40 days after the arrest, if you did not request a hearing to contest the suspension.  And if you, or your DWI lawyer did request the hearing within the first 15 days of the arrest, certainly the hearing would have happened and the 180 day suspension is probably up.  I know that would be the case for an Austin DWI arrest, but I am unfamiliar with practice and docketing in your neck of the woods.

If you got an occupational license during the original ALR refusal 180 day driver's license suspension, and filed it within the 30 day grace period with Texas DPS, then they would have made you pay the $125 reinstatement fee at that time.  That would mean your license was no longer suspended.

If you never filed an occupational, or never went to pay DPS the reinstatement fee, then that is still owed, and will be necessary to get your license back.

Sounds like you've got an attorney helping you on the DWI.  You probably need to contact him for more specific information.

One last note:  Looks like you found my DWI blog by searching for "Statute of limitations" and "DWI Texas".  You certainly need to find out from your current DWI attorney whether or not the State has filed a complaint and information officially charging you with the DWI at your local County Clerk's office.  If the full 2 years runs without them doing that, you should have a legal defense to being prosecuted for the DWI criminal charge.

Quotas for Austin DWI Arrests?

“Does the Austin DWI Task Force have arrest quotas?”

I get asked this semi-frequently by folks recently arrested for DWI. I can tell you that the officers will testify, under oath, that there is not.

And, depending on the definition of the word “quota”, that may or may not be true.

It’s almost definitely true that individual officers are not told “You need to make X number of DWI arrests tonight,” or “You must average Y number of arrests per week/month,” etc.

But I do remember** former Austin police chief Stan Knee being quoted in an Austin American Statesman article, March 4th, 2006 as saying:

“This community needs to take seriously driving while impaired…We will make 6,000 DWI arrests in 2006.”

Bear in mind that the article itself had just acknowledged that fewer than 6000 DWI arrests were made in Austin for 2005. I think you can make a pretty good argument that the chief of police was coming pretty close to not just predicting, but mandating an increase in arrests.

What’s the difference between telling one individual officer “You must make an average of 5 DWI arrests per shift,” vs. predicting not only an increase, but a threshold level of expected arrests for the department as a whole? Just a little math and some semantics, I suppose.

[**I usually link to sources, but unfortunately, the Statesman free archive does not go back far enough. Anyone caring to pay a “small fee” to access the article can do so here.]

How Long is the Statute of Limitations for DWI in Texas?

That depends on whether it’s a misdemeanor or a felony. First and Second Offense DWIs in Texas are Class B, and Class A Misdemeanors, respectively. Third Offense DWI (and above) are Felonies.

Chapter 12 of the Texas Code of Criminal Procedure covers all of the limitations periods for prosecution in Texas. 

All misdemeanors in Texas have a 2 year statute of limitations, including DWI. Felony DWIs fall under the “regular” 3 year statute of limitations.

DWI and "Technicalities"

I was arrested for the first time ever last weekend for DWI. The police officer stated I didn't come to a complete stop at a stop sign and that's why he pulled me over. I thought I did OK on the field sobriety tests but was arrested. Scared and nervous, but I did about as well as I could have on the tests.

At the police station I blew a 0.09. Just a fraction over the limit. I personally knew I was OK to drive the two miles home, but the law is the law.

I cooperated with the officer and did what he asked.

I have two questions: First, the officer did not put on my seat belt after I was placed in the cruiser; second, I was never read my rights. Could these two issues help me in my case?

By the way, I have never been in trouble in my life - ever, and I have clean driving record. I am also 44 yrs old. Any thoughts?

I have several thoughts; let me address some of the un-asked questions first.

I recently posted about the “Rising BAC” defense, and it’s possible it could apply in your case. As you acknowledge, barely over the limit is still over the limit…but the State must prove either (a) loss of the normal use of your mental and/or physical faculties, i.e. impairment or (b) having a breath or blood alcohol concentration of .08 or higher at the time of driving.

Depending on how long it was from the time of the stop until the time of the breath test, it may be arguable that you were under .08 at the time of driving (or, as the law phrases it: “while operating a motor vehicle in a public place”).

Polite and cooperative is always a good fact as well. Most police officers will acknowledge that “some people you have arrested for DWI become quite belligerent and rude”. I like to phrase it as “some people” on cross examination, because frankly, that’s probably the best you can get out of the officer, and anyway, a jury will know that not all who are “drunk” will be impolite.

As I said in the previous post, doing reasonable well on the field sobriety tests is a prerequisite to getting a dismissal, reduction of charges, or not guilty on an “over .08 breath test DWI” case. Sounds like you may have done well on them – obviously, will have to wait to see the video of the tests to know for sure.

The video will also show whether the officer asked questions about when your first and last drink were consumed, when your last meal was, and other questions potentially necessary for the State to prove “over .08 at time of driving”.

As for your actual questions, I don’t think either of those will provide you with a defense. Not seat-belting you in properly sounds like a bad idea; perhaps it’s an indication that he might be a rookie, maybe it shows that he’s sloppy, and that sloppiness might carry over into his grading of your performance on the FSTs. But that’s (1) a bit of stretch, and (2) definitely not the kind of technicality that would make a judge grant a Motion to Suppress the Evidence, or throw your case out.

I’ll post later about DWI officers not reading Miranda warnings to those arrested for DWI (it deserves a post of its own). But suffice it to say here that most officers don’t read DWI defendant’s their rights, nor do they need to.

Statements made by a defendant in response to questioning from an officer after they have been placed under arrest for any offense, without the Miranda warnings are potentially suppressible. But, in most DWI cases, all the evidence gathered against you is taken in the “investigation phase” (most of what you told the officer was before he even administered the tests to you – never mind cuffed you and stuck you in the back of his car).

Thus, the Miranda warnings do not usually apply in DWI cases.

As for never being in trouble before? The prosecutors don’t so much give you credit for lack of a prior record, as they give you grief (and enhanced penalties, fines, jail time, etc.) for it being the second time around.

DWI with Child Passenger - Questions and Answers

My boyfriend was recently charged with DWI with a Child Passenger in Midland, TX. When he was pulled over, he performed several field sobriety tests and submitted to a breath test.

The arresting officer didn't state whether he passed or failed and stated he "refused to blow" in his final report. And, an additional breath test was not administered at the jail.

He's in the process of retaining a lawyer referred to him by (someone he knows). The lawyer isn't a DWI lawyer and I've researched him to find most of his cases are trial cases. Is this the lawyer to have?

Actually, I would look for a lawyer that does have trial experience. Prosecutors know which lawyers will and won’t try cases, and, all other things being equal, probably offer better plea bargains to lawyers who they know can try a case well. Also, I think personal referrals are always a good source for finding a lawyer.

Criminal defense is very different from civil law practice however. You will want to know how much criminal defense, and DWI work any lawyer you hire has under his belt.

Does the state have a case?

This is the basic question everyone wants to know, of course, when they first come to see me as well. Unfortunately, there’s no pat answer to the question. If he did reasonably well on the FSTs, and didn’t provide a breath or blood specimen over the limit, then there’s always room for a valid defense.

Does he, my boyfriend, need to prove he complied with the breath test?

Based on your scenario, he probably took a portable breath test at the scene. For ALR driver’s license suspension purposes, refusing a request to take an Intoxilyzer test at the police station counts as a refusal, whether or not he took a PBT on scene. (And, of course, he doesn’t have to prove he took a breath test – they have to prove he was properly offered a test after the arrest, and that then he refused.)

Should he plead not guilty or try for deferred adjudication?

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.  [CORRECTION]

The lawyer has also told him he may be able to keep this off his record. Is this truthful?

If the case is dismissed, or he is acquitted at a bench or jury trial, he can seek to expunge the arrest from his record.

[From an email I received; names deleted, and my answers in bold.]

Ticket for Open Container

Hello Mr. Spencer,

I had a question about an "open container" charge. My wife and I came to visit Dallas, Tx from Oklahoma. We wanted something fun to do so we went to a club. 

When we arrived, we saw two cops on bicycles. They flashed the light on us and did the regular cop thing. All they saw was a small Styrofoam cup. They asked for it and I gave it to them. 

One cop asked what it was. I did not answer because they did not let me answer. So she assumed it was liquor. 

She said it smelled like coke mixed with rum. This cup was only like 1/4 full (3/4 empty). Still unable to say anything they told me to poor it out. So I did. 

Then they wrote me a ticket for "open container-plastic cup w/mixed drink." No one said it was liquor in the cup but the accusing cop. 

All I was able to say was "Yes, the cup was mine", and, "Yes, I do still live in Oklahoma." That's it. Then they left. 

I want to know is this even a valid charge under these circumstances? Does this affect my insurance? Can I beat this?

Dave (Last Name Withheld)

[This was originally a comment left on the Open Container entry. I decided to answer it fully in this new post.]


You’re actually asking several good questions. Let me break them down.

What evidence does an officer need to write me a ticket for an Open Container violation?

Well, whatever the officer thinks is justification for the ticket. The legal term here is “reasonable suspicion”, which is an awfully low standard. Not to be silly, but for example here in Austin, they don’t have to convene a jury, or summon a judge out on Sixth Street to merely issue you a ticket.

Most folks who have gotten traffic tickets have heard the officer say that their signature on the copy of the ticket is not an admission of guilt, just a promise to show up in court and take care of it. Basically, a ticket is just a piece of paper, stating the officer’s belief that a crime has been committed.

What evidence does the prosecutor need to convict me, if I take this case to jury trial?

This, of course, is the much higher and more familiar standard of “beyond a reasonable doubt”. In the example you describe, a full litigation of the facts would include filing a Motion to Suppress the Evidence before a trial was even called. 

While there might eventually be enough “evidence” for a Municipal Court judge to allow the case to reach the trial stage, the best lawyers will use this hearing to fully cross examine the officer about her memory, her version of events, and even litigate the issue of preservation of evidence.

Would an Open Container conviction affect my insurance?

I doubt it. But I don’t know. If this was an Open Container in vehicle charge, where the allegation was that you had it in your car, then perhaps – but I don’t really know. Probably depends on your insurance company. 

If this was merely an Open Container ticket for possessing alcohol in a prohibited place, not having anything to do with a car, then I think it’s even less likely. I can’t tell from the information in your email. Still, you don’t want the conviction either way.

Can I beat this charge?

Never any guarantees, but your basic options here are to work out some sort of deferred disposition with a prosecutor, or take it to trial. Most Class C prosecutors aren’t interested in hearing your defense, believing your version over the officer’s, and giving you an outright dismissal. (See this post.)

Deferred Dispositions in Texas are expungeable if successfully completed, and that may be your ultimate goal here.

One more problem for your situation is that living out of State will make it more difficult to “fight” the case, in terms of litigation. That usually takes several trips to Court, and that can become impractical for what is essentially, a traffic ticket level offense, punishable by a maximum of $500.

There may be information on the back of your ticket about how to enter into a deferred by mail (I’m not familiar with Dallas Class C ticket procedures). If not, you may want to contact a criminal defense lawyer there who can help you out.

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.

Cost of a DWI conviction in Texas

How much does it cost to be convicted of DWI in Texas? As usual, the answer here varies but let me take a crack at it anyway…

First we’ll assume this is a first time arrest, no collision, basic DWI that a defendant pleads guilty to in Austin.

The fine for a Class B misdemeanor DWI in Texas is “up to” $2000, but this is negotiable, let’s estimate it at an average of $500.

The DPS surcharge for a DWI conviction however is not negotiable, that’s a minimum of $1000 per year for 3 years, that’s $3000. If you provided a breath or blood sample over .16, twice the legal limit, the DPS surcharge is $2000/yr for 3 years = $6000. We’ll estimate this at the $3000 level.

Increase in insurance for a DWI conviction is going to vary greatly, based on your prior driving record, age, number of claims made against you in the past, etc. A very conservative estimate here though is going to be $3000, but probably higher. (And, again, conservative estimate means a low estimate.)

The ALR suspension of your 24/7 driver’s license is for either 90 days if you provided a specimen over .08, or 180 days if you refused to take a breath test. Occupational driver’s license costs in Travis County run approximately $250 for the filing fee, SR-22 insurance coverage for the period of the suspension will be $100-$150, and the reinstatement fee to DPS, which must be paid within 30 days of the ODL being filed, $125. So that’s approximately $475.

Probation costs $62 per month, and at an average of 18 to 24 months for “just” a first time DWI offense, which is common in Austin, you’re looking at $1116 to $1488. We’ll ballpark it at $1200.

Alcohol counseling is mandatory for DWI probations in Texas (or you lose your license again – never mind being sent back to court for a probation violation to face a more serious possibility of jail), and here in Austin, you’ll pay $55 to be evaluated for alcohol problems. The minimum number of classes assigned by the Travis County Counseling and Education Services (TCCES) is two: $10 for the MADD Victim Impact Panel, and $70 for the 12 hour DWI Education program. Minimum of $135.

So far, the cost of the DWI conviction is over $8000, and we didn’t talk about money spent on bail, towing charges to get your car out of impound, attorney’s fees, or court costs.

DWI and possession of marijuana questions (and some answers)

I live in Austin, but was pulled over for speeding in Hunt County, Texas. I had had a couple of drinks and submitted a breath sample and came up with a .131. I was arrested for DWI first offense and was also charged with Possession of Marijuana less that 2 oz for a small amount of marijuana I had in the car.

I've never been in trouble with the law before, save for a couple of expired inspection stickers here and there, so I'm filled with a bunch of anxiety as far as what steps I need to take now.

I was given a temporary license that expires on the 27th of this month (December). I've read the form and understand that after 90 days and $125 my license will be reinstated. In the meantime, I'll have to bike it. A co-worker told me that there is a way to get an occupational license. I have tried calling the number on the form but receive no answer to get further information. What steps must I take to get an occupational license?

Second question: I asked a civil lawyer acquaintance for a referral. He told me it would be best to find a lawyer in Hunt County as all charges like DWI and Poss. of Marijuana are handled locally. Do you agree? If so.. can you please make a recommendation for a lawyer?  Is it wise to be represented by somebody in a different county?

Third question: I read about having your charges sealed so that only the state can read your record, but potential employers (nosy neighbors, etc.) will not have access. Do I request this or is this something that is offered by the court?

Fourth question: What are the usual punishments for DWI 1 and Poss. Of Marijuana < 2 oz? In your opinion, what do I need to prepare for as far as fines, classes, probation?

Fifth question: Pardon the vulgarity, but will I be paying out the a** for legal representation? I'm so broke already-- what would you consider a fair cost for representation?

Thank you so much for your time. I truly appreciate any information you can send my way.


Name Withheld

I received this email a while back, and here was my response:

Taking your questions (somewhat) in order...

I definitely recommend to folks they should hire local counsel, someone who practices regularly in the jurisdiction where they were charged.  I put out a question about Hunt County defense lawyers on the local Austin Criminal Defense Lawyers listserv, and will probably have some answers back soon. Call me this afternoon at (512) 964 9900, and I'll find some folks to recommend to you.

If it has been more than 15 days since you were arrested (and it sounds like it might be), you have unfortunately missed the opportunity to contest your driver's license suspension, but if it's within that time limit, all the more reason to contact an experienced DWI lawyer ASAP.  As for the occupational license, most good lawyers in my opinion will get the documents they need from you, and prepare that for you as part of the DWI representation. Unfortunately, very few jurisdictions have pre-prepared forms for a pro-se defendant to “just fill out” and get an ODL (none, actually, at least that I know of).

Whether or not you can have the records eventually sealed or expunged will depend on how the case is resolved.  The short answer is here is that if you are convicted of the DWI and/or POM you will probably not be eligible. Obviously a .13 breath test case is an uphill battle as far as beating the DWI charge goes, although, I don't know the specifics. First time marijuana offenders often receive deferred adjudication, and that can later be sealed by way of motion for non-disclosure. There is no deferred adjudication for DWI in Texas, so that will have to be dismissed or reduced or changed to a different charge for you to ever be able to erase or seal it.

I think it's usually reasonable to assume that first time offenses of DWI and Possession of Marijuana receive probation not jail, but again, I should probably add all the usual lawyer caveats here: I'm not making any guarantees, I don't have a crystal ball, etc., etc.

As for how much this all costs, I'm sorry but the answer really has to be "it depends".  Representation at the ALR hearing (driver's license suspension) and obtaining an occupational can drive the price up.  I have no idea how fast a case runs in Hunt County, or how many court appearances a lawyer up there would have to make on these cases.  Even for "just" a first time DWI and Marijuana case though, I wouldn't advise scraping the bottom of the barrel, and just hiring the cheapest lawyer you can find.

I hope this was somewhat helpful, and again, call me this afternoon, as I may have some names of recommended lawyers for you.

Jamie Spencer