If you have a DWI on your Texas criminal record, you are put at a severe disadvantage when applying for a new job, for college enrollment, for a state-issued professional license, or even for an apartment lease. Until recently, there was no way to fix this, but since June of 2017, you can now sometimes get that record “sealed” under our state’s Non-disclosure law.
Not every DWI is eligible for non-disclosure, but many are. Rather than assume nothing can be done, you should explore every legal possibility with an experienced DWI attorney in Fort Worth. We at Andrew Deegan DWI Attorney At Law have helped many others in Fort Worth and throughout Tarrant County seal their DWI records, and we can do the same for you!
To learn more, contact us anytime 24/7 by calling 817-470-2128 for a free consultation. We look forward to hearing from you and helping you finally put your past behind you!
Texas’ New Non-disclosure Law For DWIs
When you get a DWI in Texas, it goes on the public record. That’s the same as with most other criminal charges and convictions under state law. In earlier decades, before the advent of instant background checks via the Internet, the public status of DWIs at least was ameliorated in its effects to a degree by the difficulty of doing a background check. But today, such checks are routine and can be done with great ease. This makes it difficult to “escape your past” when you apply for a job. Your past “follows” you wherever you go.
In June of 2017, however, a new Texas law was passed that allows for DWIs to be eligible for non-disclosure (record sealing) or even expunction (expungement from the record) under very specific circumstances.
On June 15, 2017, the Governor signed the new bill into law. It went into effect in September of 2017 and applies retroactively. So your DWI doesn’t have to have occurred after the law was passed to qualify for non-disclosure. To qualify, however, you can’t have had a BAC of .15 or more or have a felony or Class-A Misdemeanor DWI conviction. Also, if there was an accident involved, you will not qualify - even if no one was injured and no serious property damage was done to another vehicle. It also has to be a first-time DWI to qualify for non-disclosure. And the petitioner cannot have any other previous convictions other than for very minor traffic violations on his or her record.
The new law also sets stipulations on the allowable time table for applying for non-disclosure. For example, if you successfully completed any DWI probation (community supervision) that was assigned to you and used an ignition interlock device (IID) as required for 6 months, you have to wait two years after completing probation to apply.
If there was no probation, but perhaps incarceration time, and you used an IID for 6 months, you can file three years after finishing probation. If you had no requirement to use an IID, then you have to wait five years after completing your sentence to petition for DWI non-disclosure. These rules may seem arbitrary, but in reality, they are meant to gauge waiting times based on the severity of DWI charges and the indication of recovery that using an IID (without violations of it) can give.
Filing A Motion For DWI Non-disclosure
When you do not qualify for DWI expunction, non-disclosure is your next best option. If you qualify for it under current state law and have waited the necessary amount of time, you are free to apply anytime. But it is advisable to make use of an experienced lawyer to avoid any mistakes that could slow down or jeopardize the whole process.
Typically, you have to have been put on deferred adjudication probation instead of “straight probation” to qualify for non-disclosure. If granted, this benefit means that only law enforcement will be legally allowed to look at the particular DWI arrest record that has been “sealed” from the public view.
Deferred adjudication, by the way, is where the court does not find you guilty but puts you on probation. If you successfully adhere to all of your probationary terms, then you ultimately get the DWI charge dismissed. The arrest will still be on your record, however, which is why you would want to get that record sealed via a non-disclosure petition.
There is a lot of paperwork involved in filing for and pursuing non-disclosure. And there are deadlines that must be met. Plus, you will have to appear before a judge for a hearing to determine if your petition for nondisclosure will be granted. Having a good lawyer on your side and at your side at such a hearing will make a huge difference. It may take several months to get through the whole process, and you don’t want to fail and have to start all over again because of a misstep on a legal technicality. Attorney Andrew Deegan understands how this process works and can help you with your petition and your hearing to get the best results possible.
How Does Non-disclosure Differ From Expunction?
As soon as you start looking into the possibility of cleaning up your criminal record, you are going to be faced with two terms repeatedly: expunction and non-disclosure. What do they mean? How do they differ? Who is eligible for each and who is not?
Basically, expunction removes information while non-disclosure merely seals it. Normally, you can’t get either if you were actually convicted of a crime. It is for when your case was dismissed, acquitted, or never even tried. It’s true that a governor’s pardon is a third way to clear a criminal record, but that is very rare - especially for DWIs.
An expunction removes information concerning the arrest and court proceedings and also destroys the physical files involved. Non-disclosure leaves the files in place but bars employers from seeing them in background checks. In fact, no one except law enforcement agencies themselves can ever look at those files again. And if your arrest record is illegally released, you have recourse to sue - plus, the agent or agency will be subject to a fine.
You would be shocked how many files are generated in the criminal justice system over a single case. Arrests, charges, court processes, and incarceration all have corresponding paperwork. Everything is documented and stored on file. Non-disclosure seals all of these records. However, note that there is no way to seal records found in private sources that might come up in a Google Internet search. Courts have ruled that non-disclosure and expunction do not apply to private businesses or to Web search engines. But the trustworthiness of such sources is suspect anyway, and they bear no official status. Employers are likely to rely on official police and court records, which in fact, are affected by expunction and non-disclosure.
More About How Non-disclosure Works in Texas
Once you have an order of non-disclosure issued by the court to law enforcement agencies, they can no longer legally disclose the relevant records. Also, you no longer have to answer “yes” when asked if you were ever arrested for DWI on a job application form in the state of Texas. The order does not seal your entire record but only those a particular offense. If you have multiple arrests you want to be sealed, then you must petition for non-disclosure for each one individually.
You have to file your petition for nondisclosure with the court that sentenced you or put you on community supervision - not just at any court. The court clerk then sends your petition to the judge. The prosecuting attorney or D.A. also gets a copy of your non-disclosure petition. You will have to provide evidence you have completed your probation, were on deferred adjudication, and (where applicable) received approval for early termination of DWI probation.
The judge does not have to automatically approve your petition for nondisclosure just because you qualify to apply. It is at his or her sole discretion what to do with your case. In general, the judge must be convinced it is in “the best interests of justice” for your petition for nondisclosure to be approved. If you have shown signs of putting your past mistakes behind you in regard to the DWI, have no other pending criminal charges, and would be substantially helped by an order of non-disclosure, there is a good chance the judge will grant it.
Again, it is critical to have your case presented at the hearing by an experienced DWI attorney. You need your lawyer to present your petition in the best possible light by showing the mitigating factors in your DWI arrest, your improvements since the arrest, or evidence indicating your factual innocence.
Deferred Adjudication Bound Up With DWI Non-disclosure
To get non-disclosure for a DWI, you are going to need to have been on deferred adjudication probation instead of straight probation. Thankfully, there is a good chance of getting this form of community supervision for a first-offense DWI in Fort Worth and Tarrant County. And it is only first offenses that are eligible for non-disclosure anyway in regard to DWIs.
A deferred adjudication can be won for you by a skilled DWI attorney in a DWI court case. It is a kind of a plea deal in many instances, where you initially enter a “guilty” or “no contest” plea in return for the judge “probating” your case. Only the judge can make this decision - never the jury. The idea is that the actual guilty verdict is not entered against you but is held “in limbo” pending your successful completion of all probation and other sentencing terms.
Upon successfully finishing your DWI probation under deferred adjudication, the judge will clear your record by inserting a “case dismissed” ruling instead of a “guilty as charged” ruling. However, if you violate the probation terms, you risk losing your probation allowance entirely and being found guilty. You would then be sentenced in the normal manner and might have to spend some time in county jail or state prison.
This does not end the issue, however. Your record still shows the arrest and court processes over the DWI, and that information is viewable to the public - including potential future employers. An order of nondisclosure is the only thing that can change that unless you would get expunction or a governor’s pardon (both of which are rare for DWIs in Texas.)
As it is a common misconception that merely finishing your deferred adjudication probation will erase your criminal record, we reiterate. It does not do that. Expunction would erase the record, and non-disclosure will seal it. But deferred adjudication merely prevents a conviction from appearing on your record. It does not get rid of the whole record itself.
There are some crimes, like anything involving domestic violence, for example, that can never be eligible for non-disclosure. And there are many DWI cases that also do not qualify. A good lawyer can help you determine whether or not your DWI arrest will qualify, and if so, guide you through the whole process step by step.
Should I Seek Regular Or Deferred Probation?
If you are still going through your DWI case and it is clear you will have to go on some sort of probation, the question arises whether you should seek deferred adjudication probation or not. Some have pointed out limitations to deferred probation as a reason to avoid it, but all in all, it is still the best option if you can get it.
The limitation to deferred adjudication probation is that, if you violate probation and have it canceled, the court can sentence you anywhere within the full sentencing range for the original crime. That means you could get the maximum or something close to the maximum. By contrast, straight (regular) probation will normally have a preset lower maximum incarceration time attached to the deal.
For example, on straight probation, you might be let out on 5 years probation with a maximum of 5 years in state prison should your probation be canceled, whereas the original prison maximum might have been, say, 10 years. With deferred probation, you could still face up to 10 years if you mess up and get your probation canceled. There’s a good chance that wouldn’t happen, but it could. And many DWI cases would not involve long potential jail or prison terms anyway, but some do.
But note that probation terms are more lenient to begin with, for many on deferred adjudication probation. Plus, upon completion, you are eligible to apply for non-disclosure (or at least, within two years of finishing probation.) With straight DWI probation, you won’t ever be able to get the DWI off your record, even if you follow your probation perfectly.
Can I End My Community Supervision (Probation) Early?
In the majority of instances, you have to serve out your full community supervision term before it can end. It is particularly likely a DWI will have to have its probation term fully served out. However, there is a way that some can get their probation terminated early in Texas.
In some cases, however, you can get an early termination of probation after finishing only one-third of the term or two years (whichever is less.) You petition the court to set aside the conviction and dismiss the charges, while also shortening the probationary term. This basically only works with straight probation, which wouldn’t allow non-disclosure at the end anyway. And you have to have a very clean (if not 100% perfect) probationary record before the judge is going to agree to shorten your probation.
Also, note that those who get their probation shortened and the charge dismissed cannot qualify for a governor’s pardon. If you had a conviction, the governor could potentially pardon it; but there is no way to “pardon” a non-conviction. This leads to the queer situation that those who get their charges dismissed in this way can never get rid of the criminal arrest and court records, while those who have a conviction have at least a chance of getting a totally clean slate via a pardon from the governor.
This dilemma only underscores more how much better off you are if you can get deferred adjudication for your DWI community service, finish the probation period successfully, and then get a non-disclosure petition approved. You end up with no public record to worry about when applying for a job, a car lease, an apartment lease, college enrollment, and for state professional licenses.
But the final point to make is that some DWIs on deferred adjudication can get the probation period ended early if the presiding judge agrees. In this case, your situation is better still. You will be able to file your non-disclosure petition that much sooner. You may even be able to file it immediately in some cases.
A Problem With Modern Background Checks
Although the benefits of getting a petition for non-disclosure are substantial, there are some drawbacks you should be aware of from the beginning. Many times, private background check companies get hold of people’s criminal records and run the checks for employers instead of the county or state doing it.
These private background checks sometimes even have information sold to them by the county or state. But they often have outdated information. The data may be incomplete, not showing an expunction, non-disclosure, or set aside. It may also be totally erroneous in some instances.
Sadly, some employers trust these unreliable sources instead of the real information possessed by law enforcement agencies. Maybe they find it cheaper or faster. Or, maybe they worry about non-disclosure orders preventing them from seeing the record they requested - and so, they try to “go around” that “problem.”
It’s an imperfect world. All we can say is that most employers, at least, want to use official, reliable, valid records and want to honor the law by adhering to non-disclosure orders issued by the courts. But the Internet and private information obviously can’t be eliminated.
Two Misconceptions About Non-disclosure
Some people confuse non-disclosure with expunction as if it meant that the record was gone or literally no one could ever access it for any reason. That simply is not the case. Law enforcement can utilize your still-existing records for their own internal purposes. Non-disclosure simply takes the relevant records outside the “public domain.”
A second misconception is that having a non-disclosure order means the background check will come back “blank.” First of all, everything else on your record (if anything) that is not covered by the order will still be viewable. Secondly, the entry will show that it can’t be seen based on a non-disclosure order.
Most employers will respect that. But again, in an imperfect world, some may simply have their suspicions raised. Some will think you did the right thing in going through the effort to get the record sealed - showing concern to deal with your past. Others might feel like it’s a “cover-up.” Legally, no employer is allowed to refuse your application on the basis of a record sealed by non-disclosure. Some might, and there would be no practical way to prove it. But the good news is that since most will not turn you away for such reasons, your overall ability to find a good job is certainly dramatically improved.
Find A DWI Non-Disclosure Attorney Near Me!
At Andrew Deegan DWI Attorney At Law, we offer you full DWI defense services as well as seasoned expertise at pursuing a DWI non-disclosure court order. We know how to assess if you will qualify for non-disclosure and how to successfully navigate you through all the legal paperwork and other stipulations.
We can help you decide on probation options and plan for the possible sealing of your DWI record via non-disclosure. And, in some cases, we may be able to help you get probation terminated early in order to get your non-disclosure sooner.
Do not hesitate to reach out to us for help by calling 817-470-2128 anytime 24/7/365! We serve all of Fort Worth and Tarrant County.
