Nondisclosures of DWI Convictions: The New Second “Chance”

Printer-friendly versionPrinter-friendly versionPDF versionPDF version
Saturday, September 30th, 2017
Nondisclosures of DWI Convictions: The New Second “Chance”

DWI nondisclosure law will go into effect on September 1, 2017. It will allow your clients to seek an Order of Nondisclosure for DWI convictions, regardless of whether the client received, and successfully completed, community supervision or if he or she received a “back-time/work detail” type of outcome.

H.B. 3016 modified Ch. 411 of the Government Code extensively. The new law will apply to offenses committed before, on, or after September 1, 2017, so it is totally retroactive.

It only applies to clients who were truly first offenders, for anything other than Class “C” traffic violations. Even a prior “deferred” for anything other than a traffic offense will prevent a non­disclosure.

Govt. Code § 411.0731 governs the procedure to obtain a nondisclosure for a former client who successfully completed community supervision for DWI, under § 49.04 Penal Code, other than an offense under §49.04(d). The client must have paid all fines and court costs.

A nondisclosure cannot be granted when the client was convicted under Penal Code § 49.04(d)(i.e., where the offense was charged as a class “A” misdemeanor because an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed). As to determining the offense of conviction, the Judgment will control as to the specific offense upon which the conviction was based.

Comment: Will a plea agreement to drop a “0.15” paragraph allow a subsequent nondisclosure? It should, but that depends upon the Judgment. Since this bill was signed, obtaining a plea bargain for a Class “B” DWI offense will be one of your top priorities in your otherwise untriable DWI cases; however, you must also check the language in the Judgment carefully in order to ensure that the Judgment accurately reflects that your client was convicted of only the Class “B” misdemeanor offense of DWI!

The petition for non-disclosure “must include evidence that the person is entitled to file the petition.” Govt. Code § 411.0731(c).

The Court may not issue the order of nondisclosure if the State’s Attorney presents evidence that the underlying offense resulted in a motor vehicle accident involving any person other than the client. Govt. Code § 411.0731(b).

Comment: You can certainly read this bill and jump to the conclusion that it will only permit a nondisclosure in an accident case where it was a single-vehicle accident involving only your client where there were no passengers in your client’s vehicle, but we might not want to read it that restrictively. According to TCDLA’s Chief lobbyist, Allen Place, the intent of this bill was to allow a nondisclosure unless someone other than the client experienced a personal injury, but that is not the language that ended up in the statute.

May the State’s attorney enter into a plea bargain that an accident didn’t involve any person other than the client when no person other than the client was injured? I think so, but remember to get that finding into the Judgment!

Relating to past cases that occurred before this bill was passed, may a prosecutor agree that an accident in such case involved no personal injury to anyone other than the client and therefore meets the spirit of the new law, allowing a nondisclosure? Under § 411.0731(b), it’s actually the prosecutor’s right to oppose a nondisclosure by presenting evidence of an accident involving another person, so it seems obvious to me that they may waive that right.

Must the petitioner aver in the petition that he was not involved in an accident involving any other person? The bill created an interesting interplay between § 411.0731, subparts (b) and (c). Although you are required to show in your petition that your client “is entitled to file the petition,” it places the burden on the prosecutor to present evidence that the underlying offense resulted in a “motor vehicle accident involving any person other than the client.” § 411.0731, (b),(c). In that regard, the prosecutor’s right to present evidence of an accident seems to be in the nature of a defense to the nondisclosure. In a case involving no accident at all, you might state that fact in the petition. In a case that did involve an accident, you might consider avoiding any reference to that matter in your petition and waiting to see if the prosecutor decides to oppose the nondisclosure by presenting evidence of the accident. 

Will some judges refuse to grant nondisclosures based upon an interpretation of this provision that a collision with an occupied vehicle necessarily involves another person? As clients seek to obtain nondisclosures on the effective date of 9/1/17, we need to network about the approaches to that issue that different judges might take around the state. In the longer term, changing this provision to add some clarity needs to be a top priority for TCDLA in the 2019 legislature.}

A petition for nondisclosure for a DWI offense where the individual received community supervision may not be filed in less than two (2) years following the successful completion of probation if the person had an interlock for at least six (6) months, or following a waiting period of five (5) years, if the individual did not have an interlock. Govt. Code § 411.0731(f).

In cases where the person did not receive community supervision, or failed to successfully complete same, § 411.0736 governs the procedure for a nondisclosure when the person is not eligible for nondisclosure under §411.0731 (e.g., when he received a “back-time” or “labor detail” type of outcome). This provision also seems to allow a nondisclosure in the event that your client received community supervision which was later revoked!).

The procedure in this section is very similar to that which is outlined above for a community supervision outcome except that different waiting periods are involved. The waiting period will be three (3) years following completion of the sentence if the person had an interlock for not less than six (6) months as a condition of his sentence.

Commentary: In the recent TCDLA Legislative Update webcast, Allen Place remarked that he had never seen a jail sentence where an interlock was a condition of that jail sentence. He opined that this would only apply where the client’s community supervision, which was later revoked, included a condition requiring an interlock, which was completed. Would this apply to an individual who only had the interlock as a condition of an “ODL” or where the interlock was only a condition of his bond? Allen Place opined that this should be possible. Again, now that this law exists, this is something that lawyers will want to address in their plea bargaining. But further, you will need to have the trial court make such a finding in the Judgment (e.g., that the Client was required to have an interlock for six (6) months, which requirement was satisfied by having it as a condition of bond or an “ODL”).

The waiting period for an individual who did not have an interlock as a condition of his or her jail sentence would be five (5) years, as in the procedure where the person received community supervision.

Govt. Code § 411.0765 provides that governmental agencies may disclose criminal history information if the federal government says that they must do so in order to receive highway funds.