New Texas Statute Allows Nondisclosure of DWI Records in Certain Cases

Texas criminal proceedings are, in most cases, part of the public record. This means that anyone who knows where to look can obtain information about specific criminal cases, including arrest records and records involving probation and other outcomes. It is possible, in limited circumstances, to obtain an expunction or an order of nondisclosure, which directs public officials and agencies not to release information about a particular criminal case to the public. A new law passed by the Texas Legislature, H.B. 3016, expands the availability of nondisclosure orders in Texas DWI cases, with some exceptions.

Texas DWI SignDWI is a misdemeanor criminal offense under Texas law. “Intoxicated” is defined as either lacking “the normal use of mental or physical faculties” because of alcohol or drugs, or having a blood alcohol concentration (BAC) of at least 0.08 percent. Tex. Pen. Code § 49.01(2). A DWI offense is ordinarily a Class B misdemeanor with a minimum jail sentence of three days, or a minimum sentence of six days if a defendant had an open container of alcohol in their “immediate possession.” Id. at §§ 49.04(b), (c). If a defendant’s BAC was 0.15 percent or more, however, it becomes a Class A misdemeanor. Id. at § 49.04(d).

The Governor of Texas signed H.B. 3016 into law on June 15, 2017. It took effect in September, and it applies retroactively to all DWI cases in the state, not just convictions entered on or after the effective date. The bill amended the provisions of state law that establish procedures for orders of non-disclosure, see, e.g., Tex. Gov’t Code § 411.074, and added new sections specifically addressing DWI cases at §§ 411.0731 and 411.0736.

In order to qualify for a nondisclosure order, a petitioner must not have been convicted of DWI as a Class A misdemeanor, with a BAC of 0.15 percent or higher. The DWI case also must not have involved an accident with another person, which could involve a driver of another vehicle or a passenger in the same vehicle, even if nobody was injured. The petitioner must have no prior convictions, including probation or deferred adjudication, for anything other than minor traffic offenses.

If a petitioner meets the above eligibility criteria, the next question is when they can petition for nondisclosure. The earliest possible date depends on two factors:  whether the petitioner received community supervision, including probation or deferred adjudication; and whether their sentence included a requirement that they install an ignition interlock device (IID) on their vehicle for a period of at least six months.

– If a petitioner received community supervision for the DWI offense, successfully completed all requirements, and used an IID for at least six months, they can petition for nondisclosure two years after the date they completed community supervision.
– If the disposition of the petitioner’s case involved anything other than community supervision, and they used an IID for six months, they can file a petition three years after the date they completed their sentence.
– If the petitioner was not required to use an IID for at least six months, they can file a petition five years after the completion of their sentence or community supervision.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified criminal defense attorney Michael J. Brown has advocated for people facing charges in West Texas state and federal courts for over 20 years. To schedule a confidential consultation with a member of our team, contact us today online or at (432) 687-5157.

More Blog Posts:

After Criminal Statute Ruled Unconstitutional, People Seek Expunctions of Criminal Records, Texas Criminal Lawyer Blog, May 25, 2017

Nondisclosure of Criminal Records in Texas apply to Deferred Adjudication, Texas Criminal Lawyer Blog, June 20, 2008

Motions for Nondisclosure of a Criminal Record in Texas, Texas Criminal Lawyer Blog, May 30, 2008

Photo credit: OpalDivine (Own work) [CC0], via Wikimedia Commons.