Up until recently, the Texas Legislature did not provide for deferred adjudication in driving while intoxicated (DWI) cases. But that all changed in 2019, when House Bill 3582 was enacted, thereby permitting first-time DWI offenders to receive deferred adjudication.
While deferred adjudication is a great option for people facing DWI charges, there are many misconceptions surrounding the law. Thus, it is important to know exactly what deferred adjudication entails.
What is deferred adjudication in Texas?
Deferred adjudication (“deferred”) is a special form of judge ordered community supervision (commonly known as probation) that allows you to accept responsibility for your offense without an actual conviction being placed on your record. That may sound great; however, you must first be eligible to receive a deferred sentence.
Am I eligible for deferred?
When it comes to DWIs specifically, not everyone is eligible for deferred adjudication. You will not be eligible for deferred if:
- You have a prior DWI conviction;
- Your blood alcohol level is .15 or more;
- You have a commercial driver’s license;
- You were involved in an accident that caused damage to anything else but your own vehicle; or
- Someone was injured or killed as a result of your DWI.
Even if your DWI is eligible for deferred, it is not a guarantee. Some prosecutors require that you provide further mitigating evidence to prove why you should receive a deferred. And if you are offered a deferred, there are other rules that you must follow.
What are the deferred rules in Texas?
Qualifying for a deferred on your DWI offense is just the beginning. There are a slew of other steps that you must take before the DWI is “off” your record.
- You must plead guilty. Just because you have been offered deferred, does not mean you get to skip court altogether. Rather, you and your lawyer must go in front of a judge and admit guilt. Even though you are pleading guilty in open court, the judge will defer your finding of guilt for the deferred probationary period. Consequently, you are not actually convicted.
- You must endure a probationary period. Deferred probation is very similar to straight probation in that you must abide by terms and conditions for a set period of time. For DWI cases, this often includes drug testing as well as an ignition interlock requirement and community service. However, once you get through the probation, you can avoid a final conviction.
- You will go back to court if you do not meet probation requirements. If while on deferred probation you test positive for drugs or alcohol, fail to take classes, or pick up a new offense, you may face steeper penalties. Any violations during the course of your deferred could prompt the prosecutor to file a Motion to Proceed with Adjudication of Guilt (“MPAG”). Effectively, the prosecutor is requesting the judge to make a finding of guilt and impose additional penalties such as jail time.
Does a deferred show up on a background check in Texas?
One of the largest misconceptions associated with deferred is that the charges are wiped from your record upon completing probation. This is not true. The DWI charge will still appear on your record until you obtain an order of nondisclosure. Even then, your record is only partially cleared of the charges.
A nondisclosure will seal your record from public view but not from governmental agencies and law enforcement. For example, if you are applying to work at a local restaurant, they will not be able to see your DWI on a background check. However, if you are applying to work for the federal government, they will be able to see you’ve been arrested for a DWI.
It is important to remember that nondisclosures are not automatic. Once your deferred adjudication is complete, you will be subject to a waiting period before your attorney can petition the court for an order of nondisclosure.
What happens if I get another DWI in Texas?
You’ve completed deferred adjudication for your DWI offense and obtained an order of nondisclosure. A few years later you are arrested for another DWI. What now?
Despite completing deferred, your first DWI can still be used to enhance any subsequent DWI. This means that you will face penalties associated with a DWI 2nd and it will show up as such on your record.
DWIs and deferred adjudication can be a complex area of the law that you should not navigate on your own. It is important to work with an attorney who has experience and expertise in this area. Contact my office today to learn about your options.