Criminal convictions can be damaging. The type of offense [DWI, possession of a controlled substance, theft, aggravated sexual assault of a child, etc.] and a person’s status [teacher, truck driver, self-employed, etc.] will dictate just how hard a conviction will ‘hurt’. It could mean the difference between no substantial change in personal status vs. divorce, job loss, skid row, and contemplation of suicide.
Accordingly, the Texas Legislature enacted in the Texas Penal Code ranges of punishment for each conviction classification. Further, depending on the facts and issues of the particular case, skilled defense lawyers may be able to negotiate offense/sentence reductions, modifications, and lesser included offenses for a case rather than a possible harsh original offense and attendant sentence.
One such possibility is deferred community supervision or probation. With deferred, no actual judgement or conviction is recorded thereby making either expungement or non-disclosure available. Such benefit is now available for DWI, but how much of a benefit is it, really? Finally, after a long hiatus, since 1984, deferred adjudication probation is once again available to those accused of DWI. HB 3582 provides the ‘opportunity’ to plead to deferred adjudication, thereby avoiding a ‘conviction’ upon successful completion of the probation. Since the DWI law in Texas was partially amended on September 1, 2019, I have noticed quite a few DWI cases pleading to deferred adjudication. However, there are conditions attached. An accused may not receive deferred if he or she has:
- Any prior DWI or other delineated conviction (school zone enhancement, sexual offenses, etc.);
- State Jail Felony DWI (child passenger younger than fifteen years of age);
- Flying While Intoxicated;
- Assembling or Operating an Amusement Ride
- Intoxication Assault;
- Intoxication Manslaughter;
- Holds a commercial driver’s license or permit;
- An alcohol concentration of 0.15 or more; or
- Other statutorily delineated restrictions to obtaining deferred.
While the availability of deferred for certain DWI’s may seem to ‘wipe’ the accused’s record of a conviction, HB 3582 also amended Texas Penal Code Section 49.09(g) and added language: “[f]or purposes of this section, a person is considered to have been convicted of an offense under Section 49.04 or 49.06 if the person was placed on deferred adjudication community supervision for the offense under Article 42A.102, Code of Criminal Procedure.” So, even a deferred adjudicated first DWI can be used to enhance a subsequent arrest for DWI to a greater category! The deferred status only ‘hides’ the ‘conviction’ from most civil eyes, such as employers, etc., but not all agencies, such as certain professionals and law enforcement. So, if there is any benefit in deferred, it is minimal, at best.
After explaining these issues in detail to clients, I have found not all clients are very keen on deferred. They still must complete a term of probation with all the attendant ‘fallout’ of monthly visits to a probation officer, fines, court costs, classes, victim impact panels, etc. Additionally, a plea to deferred also sets them up for a possible future DWI being enhanced to a greater degree. So, what could be an alternative?
As with any case, if the facts (videos, police reports, TCOLE records) are favorable, a trial may be the choice remedy. ‘Not Guilty’ is always a favorable outcome since the accused’s record will be clean (after the arrest is expunged) resulting in no stigma from a conviction and no consequences of a sentence.
However, with a ‘Guilty’ verdict, the accused would likely receive a sentence very close to that which would have been received on a plea, depending on the jurisdiction, prosecutor, and/or judge. If none of the above restrictions to a deferred is a factor, in certain situations, the guilty verdict can be non-disclosed. (TEX. GOV’T CODE §§411.0726, 411.0731, 411.0736)
A guilty verdict followed by a non-disclosure would have exactly the same result as a deferred plea, but the attempt at trial has given the accused a chance of a Not Guilty disposition.
To be eligible for non-disclosure, the accused must have been convicted for an offense under Penal Code §49.04 (Driving While Intoxicated) or §49.06 (Boating While Intoxicated), except for the BAC >0.15 enhancement of §49.04(d) or received deferred adjudication for any offense under Penal Code §§49.04 or 49.06. The accused must successfully complete his sentence, including payment of all fines, costs, and any restitution imposed. He or she must not have received any prior convictions or deferred adjudication for any other offense other than a fine-only traffic offense. The accused must also show that the issuance of the order is in the best interest of justice. Additionally, there must not have been an affirmative finding in the underlying case that it is not in the best interest of justice that the accused receive an order of non-disclosure (CCP 42A.105(f)).
An important caveat to abandoning deferred and proceeding to trial is a serious consideration to a breath or blood level which could be negotiated with the prosecutor, and the DPS ‘superfine’ which is an entirely different subject of study. Apart from negotiation during a plea process, a guilty conviction after trial could lock in the superfine. A possible remedy could be afforded by court-ordered sentencing rather than jury-ordered. Such tactics must be considered on a case-by-case basis.
In summary, deferred adjudication for a qualified DWI or BWI is a better choice than that before September 1, 2019. But, if the accused’s BAC is not greater than 0.15 on a first DWI or BWI, with no prior criminal history (and none of the other restrictions recited above), a trial may be the much better choice since the eventual outcome is either the same conditions as a plea to deferred or even better, a Not Guilty.