How the New Texas Law Allowing Nondisclosure of DWI Records Might Not Apply to Certain Plea Agreements

A new law that took effect in Texas in September 2017 allows people with convictions for driving while intoxicated (DWI), if they meet various criteria, to petition for an order of nondisclosure. This order prevents state and local law enforcement agencies from releasing information about the arrest, prosecution, conviction, and sentence. In addition to the limitations on eligibility for DWI nondisclosure, the new law might exclude some people in possibly unexpected and unintended ways. Defendants charged with a Texas DWI should understand how the new law might apply—or not apply—to them when considering a plea agreement.

The Texas Penal Code classifies DWI as a Class B misdemeanor when a driver’s blood alcohol concentration (BAC) is at least 0.08 percent but less than 0.15 percent. Tex. Pen. Code § 49.04. If the BAC is 0.15 or higher, it is a Class A misdemeanor. Texas law allows two different types of “community supervision” as alternatives to the punishment prescribed by the Penal Code. Probation involves a formal finding of guilt after a guilty or no contest plea, followed by a period of time during which the punishment is probated. If the defendant successfully completes the services the court orders, the punishment is deemed completed. With deferred adjudication, the court accepts a guilty or no contest plea but does not make a formal finding of guilt. If the defendant abides by the court’s orders for a defined period of time, the case is dismissed with no final adjudication. Defendants charged with DWI are not eligible for deferred adjudication in Texas. Tex. Code Crim. P. Art. 42A.102(b)(1)(A).

The new DWI nondisclosure law, H.B. 3016, may apply to cases that ended with probation and cases in which the defendant served a sentence. It only applies to Class B misdemeanor DWI cases, and it excludes cases that involved vehicular accidents involving any person other than the driver, whether or not anyone was injured. The earliest date a person can file a petition for nondisclosure ranges from two to five years after the conviction date, depending on whether the defendant received probation and whether they were ordered to use an ignition interlock device.

The potential loophole in the new law can be found in two new sections added to the Texas Government Code, §§ 411.0731(a)(1) and 411.0736(a)(1). These sections limit eligibility for nondisclosure to people convicted of DWI. They do not include people charged with DWI who, through an agreement with prosecutors, entered a guilty or no contest plea to a lesser offense, such as obstructing a highway, Tex. Pen. Code § 42.03, or reckless driving, Tex. Transp. Code § 545.401. The possible benefits of such a plea include the availability of deferred adjudication and the lack of a DWI conviction record. Because of the wording of H.B. 3016, however, a plea to a lesser offense might also mean ineligibility for an order of nondisclosure for the DWI arrest and charge.

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.

For more than 20 years, board-certified criminal defense lawyer Michael J. Brown has defended the rights of people charged with federal and state offenses in West Texas courts. You can contact us online or at (432) 687-5157 today to schedule a confidential consultation to see how we can help you.

More Blog Posts:

Laboratory Allegedly Mishandles DWI Blood Samples, Calling Multiple Cases Into Question, Texas Criminal Lawyer Blog, May 30, 2014

Texas Police Arrest Man for DWI, Despite Negative Breath and Blood Tests, Texas Criminal Lawyer Blog, March 9, 2014

Warrantless Blood Tests in DWI Investigations Under Review by U.S. Supreme Court, Texas Criminal Lawyer Blog, January 11, 2013


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