One of the most frequently asked questions people have after being arrested for a DWI in Texas is whether the offense will stay on their record. The answer, unfortunately, is not so clear cut. Much of it depends on your charges and the final outcome of your case.
First things first, it is important to know the mechanism by which your DWI case can be removed from your record.
Expunction versus Nondisclosure
In order to seal or destroy records of your DWI charge, you must qualify for either an order of nondisclosure or expunction. These two terms are often used interchangeably but yield very different results.
Expunctions
An expunction (also called “expungement”) can be found in Article 55 of the Texas Code of Criminal Procedure, and removes all records of your arrest. Signed by a judge, the expunction order forces state agencies and private companies to destroy any and all records related to the qualifying charge. In fact, the expunction legally allows you to deny that you were ever arrested for that offense.
See Expunctions in Texas: FAQs
Nondisclosures
An order of nondisclosure acts to seal the qualifying offense. The order prohibits public entities, which includes courts, law enforcement agencies, and prosecutorial offices, from sharing information about the sealed offense. However, unlike expunction orders, there are exceptions. Certain agencies may still obtain information concerning an offense that is the subject to a nondisclosure. Moreover, some cases sealed by an order of nondisclosure may be used to enhance a subsequent offense.
Qualifying for a DWI Expunction
While a DWI conviction can never be expunged, a DWI arrest and charges can be erased if your case meets certain criteria.
- Your case was dismissed. In Texas, if the prosecutor or judge dismisses your DWI case, your charges and arrest will be eligible for an expunction (provided all other charges arising out of the same occurrence are dismissed as well). Keep in mind that you may not be immediately eligible for the expunction as there is generally a statute of limitations waiting period.
- You were found “Not Guilty”. If you go to trial and the judge or jury finds that you are not guilty, you may be eligible for a DWI expunction in Texas.
- You successfully completed a pretrial diversion program. Pre-trial diversion is a type of probation offered by the State. Once you complete the pretrial diversion program, the prosecutor will dismiss your case and you immediately become eligible for an expunction.
- You were arrested as a minor. If your first and only DWI offense occurred when you were a minor, and you successfully fulfilled all subsequent court orders, your charges may be eligible for expungement as an adult.
Qualifying for a DWI Nondisclosure
Unlike expunctions, your DWI may qualify for an order of nondisclosure even if you were convicted. However, it is important to understand that even if you receive an order of nondisclosure on your DWI, it can still be used to enhance any subsequent DWI. Just like expunctions, there are certain conditions you must meet in order to qualify for an order of nondisclosure.
- You pleaded guilty to a Class B DWI. If this is your first DWI and you are convicted of a Class B misdemeanor, you may be eligible for a nondisclosure. But, you could be rendered ineligible if you were involved in a car accident involving another person (or passenger). Additionally, before applying for the nondisclosure you are subject to a waiting period wherein you cannot pick up any other offenses.
- You received deferred adjudication. Up until recently, the legislature did not allow for deferred adjudication sentences in DWI cases. Now, if you were arrested anytime after September 1, 2019, your DWI could be eligible for a deferred. Successful completion of a deferred sentence could render you eligible for an order of nondisclosure.
See DWI and Deferred Adjudication in Texas
If you’ve been arrested for a DWI in Texas, take the time to speak to a lawyer about your options and how to keep this arrest from affecting the rest of your life. Call me today to set up an appointment.