William B. Mange

Criminal Defense Lawyer in Austin, Texas

Criminal Law Blog

February 09, 2010

Austin DWI Lawyer and Criminal Attorney Blogs: Teens Deserve Another Chance on DWIs

In DallasNews.com, Ann Causby’s opinion blog “Teens Deserve Another Chance," rightly complains

“Mothers Against Drunk Driving has lobbied to change our state driving laws for underage drunken driving. These laws are now destroying teens’ lives instead of helping them.

“The laws in Texas now state that if you are charged with an underage DWI, [then] license suspension, probation, community service, fines and a felony charge are mandatory. Deferred adjudication is no longer an option. For teens, one bad decision results in a lifetime of punishment.

“On every application they fill out, these teens will have to put the felony charge, essentially ruining any chance of getting into a good college—or any college at all—or getting a good job.

“Deferred adjudication would have given teens a chance to grow up and accept [responsibility for] what they had done, and, by completing probation, community service, paying the fines and staying out of trouble, they could have the felony charge taken off their record.”

I applaud Ms. Causby’s courage in speaking out against MADD’s relentless lobbying effort to make Texas’ already draconian DWI laws even more harsh. It takes guts to express an unpopular opinion. Nonetheless, I feel impelled to correct a mistake or two in her explanation of Texas law.

While it is true that underage drunken driving laws now destroy teens’ lives instead of helping them, it is false that a felony charge is mandatory if you are charged with an underage DWI. While it is true that if a person drives while intoxicated with a passenger younger than 15 years of age it is a felony offense, it is false that simply being younger than 21 and driving while intoxicated is per se a felony.

To the extent that her blog implies that it is a recent change in Texas law that deferred adjudication is not an option, that is incorrect. Deferred adjudication hasn’t been available for DWI charges for many years.

Now, as for getting something taken off a record, I want to explain what a deferred adjudication probation is, what it will do, and what it will not do.

A deferred adjudication probation is most easily explained when discussing a very serious offense, such as a first degree felony. The full range of punishment for a first-degree felony is confinement in prison for anywhere from five years to 99 years or life, and up to a $10,000 fine.

When someone is placed on a deferred adjudication probation, he faces the full range of punishment if his probation is revoked. This is one of the main differences between a deferred adjudication probation and a regular probation. A person placed on probation for 10 years on a first-degree felony, if revoked, could receive the maximum of 10 years, but a person who was placed on deferred adjudication on a first degree felony could receive a sentence of life or 99 years in prison if revoked. You might ask yourself: why in the world would anyone want that kind of probation?

Here is the answer: with a deferred adjudication probation, you are not “technically” convicted. This is because the judge does not specifically find that you are guilty of the offense. Rather, the judge merely finds that there is sufficient evidence upon which a finding of guilt could be made.

If this sounds like hair splitting to you, then you understand it perfectly.

There is a lot of bad information going around about how getting a deferred adjudication means that the offense will somehow be taken off your record. That is not true.

Now, to make my comment truly complete, and a little more complicated, I need to explain about orders of non-disclosure. People who successfully complete a deferred adjudication probation in a case such as yours can petition the court for an order of nondisclosure so that private businesses cannot learn about this case after the court has ordered the clerk of the court and other governmental agencies not to release that information. An order of nondisclosure does not mean that your record has been erased. Governmental agencies can still find it. If, God forbid, you were arrested again, then the police and the prosecutor could find out about this case with absolutely no trouble. Now, to make the explanation about orders of non-disclosure more complete, I must explain that though the Court orders the private businesses such as PublicData.com who have records of your deferred adjudication not to disclose those records, some of those businesses will keep and disclose those records anyway. What can you do to change that? If you find out that a particular company is still disclosing records about you which should have been sealed, then complain to the Department of Public Safety. The way that this will help you is that if a company discloses information that ought not be disclosed too many times in a year, then DPS is supposed to stop selling them criminal histories altogether. Since that is the main stock in trade of such businesses, that should give that business a lot of incentive to stop disclosing your records to make DPS happy. I know of no private remedy such as suing such businesses.

Lastly, getting the order of non-disclosure is not automatic. You have to call a lawyer (such as me) and ask him to get the order of non-disclosure. The order of non-disclosure is not entered automatically.

William B. Mange

Criminal Defense Lawyer in Austin, Texas

Criminal Law Blog

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