When Texas lawmakers passed House Bill (HB) 3582, it made first-time DWI offenders eligible for deferred adjudication. Deferred adjudication sounds really great to someone who has never dealt with the criminal process before and who just wants to get it over to return to his or her life. Deferred adjudication, after all, means the defendant completes a deferred probation and in return, a conviction or a finding of guilty is not entered into his or her criminal record.
And no one wants a criminal record. Especially not if you are:
- a student with aspirations
- a professional in the finance industry
- someone who requires a professional license, like a real estate license, teaching license, CPA license, pilot's license, nursing license, medical license, etc.
- someone who requires security clearance regardless of what level the security clearance is
- someone who may need to take out a mortgage loan, an auto loan, an education loan, or a personal loan one day
- someone who likes to travel
- someone who likes to fly recreationally or professionally
- someone in the United States on a student visa, work visa, or another visa
- someone who simply cares about his or her standing in the community and would be embarrassed by the criminal record.
Collateral consequences of a criminal record can be fierce. So, deferred adjudication can sound pretty attractive to you as a first-time DWI suspect.
But it's not as rosy as it sounds – unless you are an ignition interlock device manufacturer or seller (because their profits are about to be boosted).
Here, Doug Murphy, one of only two attorneys in all of Texas who is Board Certified in DWI defense and criminal law, explains why deferred adjudication may not be right for you. There's a lot more to the program than what you may have been led to believe. Of course, you'll always want to contact Doug Murphy to schedule a consultation to make sure you qualify for the program and to discuss more specifically if it's in your best interests given the below discussion.
How does HB 3582 impact deferred adjudication in Texas?
HB 3582, which is a new law that took effect on September 1, 2019, now allows first-time DWI offenders to take part in deferred adjudication programs. Before this law, first-time DWI offenders were not eligible for deferred adjudication since 1984. The new law requires the offender to confess to the DWI in exchange for the program.
Under the program, you must follow the terms and conditions of probation. This includes but in no way is limited to the installation of an ignition interlock device (IID) in each vehicle you drive, even if you do not own the vehicle. Each time you want to drive the vehicle, you must blow into the device. If your breath alcohol level (BrAC) results in .03% or higher, the vehicle will not start. The IID also tracks the results of each blow into the IID, including failed attempts, noting the BrAC level, and any possible tampering.
Are there first-time DWI offenders who do not qualify for deferred adjudication in Houston Texas?
As mentioned, you always want to speak to an experienced DWI defense attorney to discuss all your options after a DWI arrest. Only first-time DWI offenders are eligible for deferred adjudication under HB 3582. But some first-time offenders are disqualified depending on the circumstances.
If any of the following occurred during your first Texas DWI arrest, you will not qualify for deferred adjudication:
- your blood alcohol content (BAC) was at least .15%;
- you allegedly caused an accident;
- you allegedly caused an injury; and/or
- you allegedly caused the death of another person.
What do you need to know before you accept deferred adjudication for an alleged DWI offense in Houston?
Deferred adjudication is marketed as a way to help first-time offenders avoid a conviction, but that's not the whole story. Before accepting an offer of deferred adjudication in the greater Houston metropolitan area, you should know how easily the story can change.
Here are the costs of deferred adjudication you should know but that many times isn't fully relayed to a first-time offender.
The Costs of a Criminal Record
It is mentioned above that anyone wanting to avoid a criminal record will just at an opportunity to accept deferred adjudication once told it means you can prevent a conviction. Too many people think a conviction is all that appears on a criminal record. But it's not.
Original proceedings appear on a criminal record regardless of whether you were convicted of the offense or not. So, though you won't have a conviction appearing on your record, the arrest and court hearings will be viewable on your criminal record.
To have the original proceedings removed, you will have to petition the court for an Order of Nondisclosure. There are many restrictions on who and under what conditions a court will grant the request. Even then, however, certain agencies can still see the original proceedings when performing a background check.
According to Tex. Government Code 411.081(i), the following can still see arrest and court records of your DWI even if you are granted an Order of Nondisclosure:
(1) the State Board for Educator Certification;
(2) a school district, charter school, private school, regional education service center, commercial transportation company, or education shared services arrangement;
(3) the Texas Medical Board;
(4) the Texas School for the Blind and Visually Impaired;
(5) the Board of Law Examiners;
(6) the State Bar of Texas;
(7) a district court regarding a petition for name change under Subchapter B, Chapter 45, Family Code;
(8) the Texas School for the Deaf;
(9) the Department of Family and Protective Services;
(10) the Texas Juvenile Justice Department;
(11) the Department of Assistive and Rehabilitative Services;
(12) the Department of State Health Services, a local mental health service, a local intellectual and developmental disability authority, or a community center providing services to persons with mental illness or intellectual or developmental disabilities;
(13) the Texas Private Security Board;
(14) a municipal or volunteer fire department;
(15) the Texas Board of Nursing;
(16) a safe house providing shelter to children in harmful situations;
(17) a public or nonprofit hospital or hospital district, or a facility as defined by Section 250.001, Health and Safety Code;
(18) the securities commissioner, the banking commissioner, the savings and mortgage lending commissioner, the consumer credit commissioner, or the credit union commissioner;
(19) the Texas State Board of Public Accountancy;
(20) the Texas Department of Licensing and Regulation;
(21) the Health and Human Services Commission;
(22) the Department of Aging and Disability Services;
(23) the Texas Education Agency;
(24) the Judicial Branch Certification Commission;
(25) a county clerk's office in relation to a proceeding for the appointment of a guardian under Title 3, Estates Code;
(26) the Department of Information Resources but only regarding an employee, applicant for employment, contractor, subcontractor, intern, or volunteer who provides network security services under Chapter 2059 to:
(A) the Department of Information Resources; or
(B) a contractor or subcontractor of the Department of Information Resources;
(27) the Texas Department of Insurance;
(28) the Teacher Retirement System of Texas;
(29) the Texas State Board of Pharmacy;
(30) the Texas Civil Commitment Office;
(31) a bank, savings bank, savings and loan association, credit union, or mortgage banker, a subsidiary or affiliate of those entities, or another financial institution regulated by a state regulatory entity listed in Subdivision (18) or by a corresponding federal regulatory entity, but only regarding an employee, contractor, subcontractor, intern, or volunteer of or an applicant for employment by that bank, savings bank, savings and loan association, credit union, mortgage banker, subsidiary or affiliate, or financial institution; and
(32) an employer that has a facility that handles or has the capability of handling, transporting, storing, processing, manufacturing, or controlling hazardous, explosive, combustible, or flammable materials [under certain conditions]...
As you can see, that is a long and pervasive list of agencies that encompasses and can impact anything from your personal, professional, and familial lives.
The Monetary Costs
With criminal sentencing, a fine is usually assessed as part of the punishment. There is no such punitive fine associated with deferred adjudication, but there are fines and fees nonetheless. You will have the costs associated with:
- the IID installation and maintenance;
- supervisory costs;
- restitution – if applicable; and, among other costs,
- administrative fines and fees.
Some costs you pay upfront while other costs endure throughout the probationary period.
The Cost of Making an Error
Deferred adjudication is not a picnic. There are specific terms and conditions you must follow. Failure to do so – even if a simple mistake – can mean penalties worse than if you had been convicted without deferred adjudication.
There will be many restrictions placed on you just as much as there will be expectations and requirements. Professional and personal lives can easily be affected by probation. Always know what you are getting into and the potential consequences of it before you accept an offer.
The Cost of a Second DWI Charge
Everyone assumes that without a criminal record available to the public, there's no worry if charged with a second DWI. Unfortunately, though the deferred adjudication program, if you are charged with a second DWI offense, the first DWI that was deferred can be used as a prior conviction. As such, this means you will be charged as though the second DWI arrest is a second DWI even though the first one was deferred.
As such, you can expect penalties a second DWI, a Class A misdemeanor, carries:
- up to one year in jail;
- up to $4,000 in fines;
- up to two years of license suspension.
Don't Fall into the Deferred Adjudication Trap: Contact a Smart Houston-Based DWI Defense Attorney Today
Should you or should you not accept an offer of deferred adjudication in Houston? That's up to you after an experienced attorney has advised you of all your options.
But remember this: the only way to truly prevent a conviction is to fight the charges against you. DWIs can be challenged, and they can be challenged successfully. You can win your Harris County DWI case. If the charges against you are dismissed or you are acquitted at trial, then you never have to worry about messing up. You will also be able to get an order to seal your arrest and court proceedings.
Contact Doug Murphy, reputable DWI and criminal defense attorney in the greater Houston metropolitan area. He will review your case and outline your options and best defenses. Once you know the whole story, you can make an informed decision about your case and your future.