The Common Law: Expunction for DWI Arrest?

Texas law: obtaining an expunction

I was arrested for DWI a few years ago, and my lawyer worked out a deal where the DWI charge was dismissed in exchange for me taking a punishment on a reduced charge. But based on your column last month, I now know that I need an expunction to clear my arrest record when the charge was ultimately dismissed. How do I go about expunging my DWI?

Because obtaining an expunction is highly technical, it's a good idea to consult with an experienced criminal defense attorney before beginning the process.

The first step is to determine whether you're eligible. Texas law is very particular about what types of charges can be expunged, and you must meet all of the statutory requirements in order for a judge to grant you an expunction. Unfortunately, the judge has no equitable power in expunction cases, meaning that the judge can't grant you an expunction just because you're a good person who made amends for your past indiscretion.

To be entitled to an expunction of the DWI, you must show that 1) the DWI is no longer pending against you; 2) there were no final convictions for any other charges arising out of your arrest; and 3) there was no court-ordered probation on any charges arising out of your arrest, unless the probation was for a class C misdemeanor.

The second element — whether you were convicted of the reduced charge — is often the most difficult to meet. For example, if your attorney got your DWI knocked down to a final conviction on a speeding ticket, you won't be able to expunge the DWI because your arrest ultimately resulted in a final conviction. However, if your lawyer worked out a deferral on the speeding ticket (meaning that the speeding ticket was ultimately dismissed after you completed certain requirements, such as community service or a driving safety course), then you meet the second and third elements because you have no final convictions and your probation was on a class C misdemeanor.

If you qualify for an expunction, you must also determine whether enough time has passed in order to file the expunction petition. The statute of limitations on misdemeanors is two years, but this limitations period is "tolled" while the charge is officially pending, meaning that the clock pauses. The final steps are to file a petition (which requires specific information) and have a hearing. Obtaining an expunction is technical, and it's strongly recommended to consult with an attorney.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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