Prior to September 1, 2019, deferred adjudication probation was absolutely not available for DWI cases. [Ironically, deferred was available for serious criminal cases such as theft, drugs, burglary, etc.] The defense bar lamented the absence of deferred. It had been previously available, but abolished in Texas in the late ‘80’s or early ‘90’s. Eventually, the backlog of DWI cases prompted even the prosecution to petition the Texas Legislature to return deferred to the Texas criminal process for DWI so as to ‘move’ more cases.
As mentioned in another blog article, deferred does not result in a true conviction but it still is recorded on one’s criminal history or background check, unless it is nondisclosed. However, according to Texas Penal Code Section 49.09 (g), “For purposes of this section, a person is considered to have been convicted of an offense under Section 49.04 (DWI) or 49.06 (Boating While Intoxicated) if the person was placed on deferred adjudication community supervision…”
Requirements for DWI deferred adjudication probation:
- Citizen placed on DWI deferred probation [not available if: over 0.15; prior criminal history; accident involving injury to another person; possesses a commercial driver license]
- Judge cannot make an affirmative finding that nondisclosure would not be in the best interest of justice, and there must be a determination that nondisclosure is in the best interest of justice.
- Ignition interlock device is required for at least half the probationary period.
- Citizen must receive a successful termination of the probationary period.
The primary benefit of DWI deferred probation is that the Citizen must wait ‘only’ two years after discharge to file for a nondisclosure.
However, look at the requirements for ordinary DWI probation nondisclosure:
- Citizen placed on regular probation for DWI if not over 0.15, nor an accident involving injury to another.
- Determination that nondisclosure is in the best interest of justice.
- Successful completion of probation.
- No prior criminal history.
There is a three year waiting period before filing if the Citizen if there was an interlock installed on the vehicle for at least six months during probation. If not, the waiting period is five years.
The only real difference is a waiting period of one year. Both nondisclosures have the same qualifications and the same result … nondisclosure of criminal history for any non-law enforcement background check.
PRACTICAL APPLICATION: My opinion is if a Citizen has no breath or blood test 0.15 or over, no prior criminal history and no accident involving injury to another there is NO reason not to take the case to trial. Trial is the ONLY way to get the case expunged and taken completely off one’s record. However, if the jury renders a guilty verdict and the Citizen chooses probation, the case can be nondisclosed the same as a deferred plea, with only one extra year of waiting period.
Either way, nondisclosure cloaks the criminal history of a Citizen.
NOTE: Many clients have come to me thinking they were guilty, but we were able to take the case to trial and WIN!!
IT’S NOT AGAINST THE LAW TO DRINK AND THEN DRIVE. YOU JUST CAN’T BE INTOXICATED, AND THAT’S THE QUESTION.