When Can I Get a Texas DWI Arrest Expunged from My Record?

August 17th, 2021 by Tad Nelson in DWI, Expungement, Misdemeanor Crimes, Traffic Offenses

Even when a drunk driving arrest does not lead to a criminal DWI conviction, there is still a public record. This means that if someone conducts a background check on you for any reason, the record of your DWI arrest will come up. There is, however, a way to prevent such a scenario, and that is to petition a judge to have the record of the arrest expunged.

Expunction permanently removes all records of an arrest from a person’s record and basically allows the subject to deny they were ever arrested in the first place. Under Texas law, a person may request expunction if their DWI arrest did not result in any formal criminal charges or their case was dismissed or did not result in a conviction. Expunction is also an option in cases where a person is arrested but not convicted of underage drunk driving.

Defendant “Waived” Right to Expunction in Agreeing to Pre-Trial Diversion Program

The right to expunction is based on statute. It is not a constitutional or “common law” right. As such, the person requesting expunction must strictly comply with state law when seeking to remove a DWI arrest from their record.

In some cases, a person may actually waive their right to seek an expunction without fully understanding the implications. This issue came up in a recent decision from the Texas Eighth District Court of Appeals in El Paso. The petitioner in this case was previously arrested in El Paso on suspicion of DWI. In exchange for the prosecutors dismissing the charge, the petitioner agreed to enter a “Pre-Trial Diversion” program. This program allows first-time DWI offenders to avoid a criminal conviction.

In this case, however, the petitioner’s entry into the program came on condition that she waive her right to “to have my criminal record related to these charges expunged if I successfully complete the Pre-Trial Diversion Program.”

Nevertheless, the petitioner later requested expunction of her arrest. She argued the waiver only applied to a narrow part of the law that expressly permits expunction in cases where the petitioner has completed a Pre-Trial Diversion program. It did not encompass other legal grounds for requesting an expunction, such as the fact the statute of limitations for her alleged offense had expired.

The Eighth District rejected the petitioner’s arguments. It held “that the unambiguous language of the Waiver covers the right to an expunction across all the possible avenues within” the Texas statute. And even if the petitioner had not waived her rights, she failed to present sufficient evidence to prove she was entitled to an expunction under her statute-of-limitations argument.

Contact Galveston DWI Attorney Tad Nelson Today

Before you enter into any plea or pre-trial diversion agreement with the state, it is important to first consult with an experienced Houston DWI lawyer who can help you make informed decisions based on the law. Contact the Law Offices of Tad Nelson & Associates today if you need speak with an attorney right away.

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