Pinched for a DWI?
Pinched for a DWI? Here Is What You Need To Know About The New “Second Chance” Law.
By: Jason L. Van Dyke, Esq.
The previous last two articles I wrote for West Is The Bestexplained how a person on probation can become eligible for early release and also how, in some cases, even a person sentenced to straight probation has a chance at a clean record. In each of these articles there was bad news for those with a DWI on their record: the law didn’t apply to them. That is because Texas is home to Mother’s Against Drunk Driving (M.A.D.D.) – and they make really big campaign contributions. That is why I was personally very surprised to see a positive change in the law concerning DWI offenders: A second chance for those who have committed an offense that, for M.A.D.D., in an unforgivable sin.
Note: The new law, HB 3016, is referred to as a “second chance non-disclosure” throughout this article so as to distinguish it from the non-disclosure procedures available for offenses other than DWI.
Q:Does the law expunge the DWI offense from my record?
A:No. The offense will remain part of your criminal history. However, the court will enter an order forbidding the disclosure of the offense to the public. In other words, it shouldn’t show up in public record searches or in most employment background checks.
Q:Who is eligible for a non-disclosure?
A:The law only permits non-disclosure under a limited set of circumstances. First and foremost, at the time of filing for the non-disclosure, the person must have no other prior convictions of any kind other than traffic offenses that are punishable by a fine only. Second, the person is ineligible for a non-disclosure if the driving while intoxicated offense for which they were arrested involved a motor vehicle accident with another person (including a passenger in the offender’s vehicle). Finally, the law applies only to those cases involving a blood alcohol content less than 0.15.
Q:When am I eligible for a second chance non-disclosure?
A:It depends. If you were sentenced to community supervision that included the installation of an ignition interlock device on your vehicle for six months or more, you become eligible for non-disclosure two years after the date of your discharge from probation. Otherwise, you have to wait five years from the date of your discharge from probation. Be certain to contact your attorney if you are unsure of the date of your discharge from probation, as this is something that may need to be researched if you lost your copy of the court’s order.
Q:Am I eligible for a second chance non-disclosure if I chose a jail sentence instead of probation?
A:Yes, but the timelines are slightly different. The law provides for a second chance non-disclosure on the third year after completion of your sentence if, and only if, the judgment and sentence required you to have an ignition interlock on your vehicle for at least three months. Otherwise, you must wait for five years after the completion of your sentence (this would typically be the date you were released from jail).
Q:What if I was required to spend time in jail as a term and condition of my probation for DWI?
A:This is still considered a sentence of community supervision rather than jail. If the terms and conditions of your probation included the installation of an ignition interlock device on your vehicle for six months or more, you become eligible for non-disclosure two years after the date of your discharge from probation. Otherwise, you have to wait five years from the date of your discharge from probation.
Q:I was originally sentenced to probation for DWI. I screwed up, my probation was revoked, and I was sentenced to three weekends in jail. How does this affect my eligibility?
A:You did not complete the terms of your probation, so the rules applicable to you are the same as those that would be applicable to someone originally sentenced to jail. You are eligible for a second chance non-disclosure on the third year after completion of your sentence if, and only if, the judgment and sentence required you to have an ignition interlock on your vehicle for at least three months. Otherwise, you must wait for five years after the completion of your sentence (this would typically be the date you were released from jail).
Q:I think I am eligible for a second chance non-disclosure. When does this law go into effect?
A:The first day that your lawyer will be able to file a petition for nondisclosure on your behalf if September 1, 2017.
Q:I have only been in trouble once and it was a DWI from 1985. Does this law apply to my case?
A:Yes. This law is retroactive to all DWI convictions. However, it is of the utmost importance that you remember the three major criteria: (1) No other convictions or deferred adjudications except for fine-only traffic offenses; (2) The DWI cannot have involved an accident with another person (including a passenger); (3) An offender with a BAC that is over 0.14 is not eligible.
Q:I was smoked marijuana one night and drove to Taco Bell to buy some fucking burritos. I was stopped and arrested for DWI on my way home. Am I eligible even though my case did not involve alcohol?
A:Yes. As stupid as it sounds, the major disqualifier is cases that involve a BAC of 0.15 or higher. There will have to be something in the file providing some sort of evidence of blood alcohol for the state to raise this at your hearing. If there is no evidence of alcohol use, you’re good to go.
Q:What if it was meth and not marijuana?
A:It doesn’t matter. The law does not disqualify a person convicted of a DWI due to drug usage – regardless of the type of drugs, the amount of the drug ingested, or whether the drug was illegal. It only addresses alcohol specifically.
Q:I was arrested for DWI. I blew a 0.16. However, the state dropped the enhancement paragraph that would have made it a Class A misdemeanor so that I could plead to a Class B misdemeanor. Am I fucked?
A:That’s a very good question. In that situation, it would ultimately boil down to how the judge interprets the law. This question is beyond my pay-grade to answer and is likely something that will be settled in an appellate court at some point in the future. I blame the legislature for not extending this relief to ALL first time DWI offenders. If I was God Emperor of Texas, that is what I would have done.
Q:I am currently on probation for DWI. I am not ordered to have an interlock on my vehicle, but I want to take advantage of this as soon as possible. What can I do?
A:Believe it or not, you can actually ask the court to modify your probation to add the ignition interlock as a term and condition of probation. Did you read my article about early release from probation? In that article, you read about how the court can modify terms and conditions of probation. There is no law that wouldn’t allow you to do into court and ask the judge to order the interlock so you can take advantage of this law. This is a new law and the judge may think you are a little bit crazy for doing it, but there is nothing in the law that says you can’t do this.
Q:I was given 12 months of probation for DWI. I have two months left and was never ordered to get an interlock. Am I completely screwed for the next five years?
A:Surprisingly, no! You can actually ask the judge to immediately order the interlock and extend your probation for an extra four months so that you will end up with a total of six. Gaming the system in this manner is why people like me, at least theoretically, make a lot of money.
Q:My lawyer didn’t tell me about this law when I entered my plea. Can I sue him for malpractice?
A:You can try, but you probably won’t win. The law was only recently signed by the governor and does not become effective until September 1, 2017. It’s manifestly unreasonable for you to expect your lawyer to look into the minds of the Texas legislature (especially the House) and guess at what both it and Governor Abbott might do.
Q:What is the best advice you can give me about this new law?
A:First and foremost, don’t drink and drive. Of course, people get pinched all the time. I don’t hold it against people that have learned their lesson and find it extraordinarily ill-mannered when other people do (especially when that lesson was a misdemeanor like a DWI). With that having been said, it is of the utmost important that you stay the hell out of trouble. If the DWI was not your first offense, or if you have gotten anything other than a speeding ticket since the DWI, you’re probably fucked.
Q:What is this going to cost me?
A:Are you hiring me? I typically charge $1,500.00 for this type of thing. I think that is a fair rate given my education, experience, and student loan balance. Some newer lawyers might be less. Lawyers with vacation houses might charge more. Please keep in mind that this rate doesn’t include court costs, which you should budget at least $500.00 for.
Q:Are you going to give me a special rate because I am a Proud Boy or an Alt-Knight?
A:Do I know you? Will the head of your chapter vouch for your membership? Yes? Ok, if you’re a Proud Boy or an Alt-Knight, I will knock $500.00 off the top and do it for $1,000.00 plus court costs. Remember, we glorify the entrepreneur. I don’t work for free and I don’t expect any brother that I hire to work for free either.
Q:Does the new law guarantee that my record will be made non-public if I meet all of the eligibility criteria.
A:No. I would also note that no lawyer can ever guarantee a result in any particular case. . Furthermore, the law provides that the judge must make a finding that the non-disclosure is in the best interests of justice. Some judges will not make that determination. Whether your petition is in the “best interests of justice” is left to the discretion of the judge.
Q:You got me a second chance non-disclosure for my first offense DWI. Thank you. What happens to my record if I get into trouble again?
A:The law does not permit the record of your first DWI to be “re-disclosed” to the public under any circumstances. However, the offense does not disappear. If you get a second driving while intoxicated case, you will be charged with a DWI-2nd Offense, which is among the most serious misdemeanor offenses in Texas. The non-disclosed offense can also be used by the judge in passing sentence and by the state in making a sentence recommendation.
Q:I have never been in trouble for DWI. Does this law change how I should conduct myself in a DWI traffic stop?
A:Yes. Yes. Yes. First and foremost, never admit to drinking anything or to coming from a bar, nightclub, or other place where alcohol is served. The officer will say that he smells it on you or that you reek of alcohol. Stick to your story. The officer might say that he saw you weaving. Go ahead and admit to texting someone or looking at a Facebook messages, tell him that you know you were wrong for doing that, and that you understand if he does his job and gives you a ticket (and thank God if a ticket is all you get). When the officer wants you to start performing standardized field sobriety tests, this is where your co-operation should end. At this point, the officer has already decided to arrest you for driving while intoxicated. The only reason you aren’t in handcuffs is because he needs to gather evidence of intoxication for the prosecutor who will be handling the case and for the judge who might later be signing a search warrant for your blood. Deny him and refuse to perform any tests. He will threaten to take you to jail and start making promises. You should not respond to these threats other than to tell him that you understand and that, if he is going to take you to jail, you are ready to go. He might ask you to submit to a breath or blood test. Refuse. The officer will tell you that you can lose your license for 180 days. Once again, tell him that you understand. Cooperate physically with the arrest, invoke your right to remain silent (and remain silent), and demand to speak with an attorney.
As with my previous articles, the filing of a petition under the second chance non-disclosure statute is not something that you will want to attempt by yourself. The money you spend hiring a lawyer that knows what he doing will pay major dividends in the future (most lawyers even take credit cards these days). If you ever get pinched, you will always want to hire the best you’re able to find. Uhuru!
Jason L. Van Dyke is licensed to practice law in Texas, Colorado, Georgia and Washington D.C. He has been practicing in the areas of criminal defense, debt collection, and real estate law for ten years. He is a member of the Texas chapter of The Proud Boys and lives in Crossroads, Texas. The views expressed in this article are general in nature and should not be used or construed as legal advice for any specific situation