January 17, 2024
Written and reviewed by George Napier, Founding Attorney at The Napier Law Firm, former Montgomery County Assistant District Attorney and Felony Chief Prosecutor.
DWI charges in Texas can affect your personal and professional life. A DWI may be a misdemeanor or a felony, depending on the charge and enhancement facts; an arrest is not the same as a conviction.
In this article, we’ll explore when a DWI can be expunged and guide you through the legal steps of the expunction process. So, keep reading for all the details!
Can a DWI Conviction Be Expunged in Texas?
An ordinary final DWI conviction generally cannot be expunged. Narrow statutory grounds, such as a qualifying pardon or actual-innocence relief, require a separate review; completing the sentence is not enough.
Texas expunction eligibility is governed by the Texas Code of Criminal Procedure, Chapter 55A. A first DWI is ordinarily a Class B misdemeanor, but a BAC of 0.15 or more and other circumstances can change the grade. A conviction ordinarily bars the no-conviction expunction routes.
Now, if you’re talking about record sealing, that’s a different story. As you might know, expunction and nondisclosure are two different laws. The latter legal process won’t help you clear your criminal record.
A qualifying nondisclosure order restricts public disclosure of the covered criminal history; it does not destroy the record. Criminal justice agencies and other statutorily authorized recipients may still obtain it.
When Can a DWI Be Expunged in Texas?
A DWI record does not simply disappear with time. Some arrest records qualify for expunction, while certain convictions may qualify for the separate remedy of nondisclosure.
Here are some of the conditions that can make you expunction eligible after a DWI arrest:
Can a dismissed or acquitted DWI case qualify for expunction?
Dismissal and acquittal are different expunction routes. A trial-court acquittal is governed by Articles 55A.002 and 55A.151. A dismissal requires the conditions of the applicable route, such as Articles 55A.051–.054; a dismissal or no-bill alone is not enough.
For misdemeanor relief under Articles 55A.051–.053, the target misdemeanor is evaluated individually; another misdemeanor from the arrest is not automatically a bar. Any felony arising from the same transaction requires separate analysis. A charge reduction or plea agreement does not itself establish expunction eligibility.
Successful completion of Class C deferred disposition, followed by dismissal, may allow expunction if the remaining Chapter 55A requirements are met and the court enters an expunction order. Receiving a deferral alone does not clear the record. Reducing a DWI charge to a Class C offense does not automatically expunge the original DWI records.
The plea papers, charging history and disposition of each relevant offense must be reviewed. For misdemeanor relief under Articles 55A.051–.053, a conviction on the target offense ordinarily prevents relief; a conviction on a different misdemeanor from the arrest is not automatically a bar. The other requirements of the selected route still apply.
You Were Not Guilty of the Criminal Charge
A trial-court acquittal generally creates an entitlement under Article 55A.002, subject to Article 55A.151. An appellate acquittal falls under the discretionary route in Article 55A.101, including its finality conditions. A reversal or new-trial order alone is not an acquittal.
Problems with the stop, testing or arrest may support a defense, but an allegation of innocence is not an expunction order. After a qualifying trial acquittal, request the order through Article 55A.201 and provide the required identifying and agency information.
You Are a Minor
Being under 18 does not by itself make a DWI expungeable. Juvenile-record sealing under Family Code Chapter 58 and expunction of certain Alcoholic Beverage Code offenses under Section 106.12 are different remedies with different eligibility rules. Related reading: alcohol-related crimes.
For example, Section 106.12 contains a route at age 21 for a person convicted of no more than one Alcoholic Beverage Code violation while a minor, along with a separate qualifying arrest-record route. It does not create a general expunction right for a Penal Code DWI conviction.
The offense statute, age when the conduct occurred and court disposition control. An adult DWI, a juvenile case and an underage DUI under the Alcoholic Beverage Code should not be treated as interchangeable.
Does DWI Deferred Adjudication Allow Expunction?
For those who don’t know, deferred adjudication is a type of probation a judge can order instead of jail time. The former can help you keep a conviction from going on with your criminal record.
DWI deferred-adjudication eligibility is governed by Article 42A.102. It excludes specified cases, including certain enhanced offenses, a BAC of 0.15 or more, and defendants who held a commercial driver’s license or commercial learner’s permit at the time of the offense.
House Bill 3582 opened a deferred-adjudication route for some DWI cases. Current Articles 42A.102 and 42A.111, rather than the bill alone, govern eligibility and discharge.
Completing DWI deferred adjudication does not make the case eligible for the ordinary no-conviction expunction route. A qualifying person may instead seek nondisclosure under Government Code Section 411.0726 after the required two-year period following completion and discharge and dismissal, subject to the other conditions and collision restriction.
The commercial-license restriction on DWI deferred adjudication is distinct from the rules for fine-only traffic cases. It should not be treated as a single rule covering every moving violation or record remedy.
How to Get a DWI Criminal Record Expunged
For a DWI arrest, the general petition route is a district court in the county of arrest or alleged offense, not necessarily the court that handled the DWI. A qualifying trial acquittal has a separate procedure under Article 55A.201.
The entire process can be complex, especially the paperwork. So, it’s best to hire a criminal defense attorney to help you with your case. Here’s a detailed explanation to help you apply for an expungement:
Step 1: Check If You Qualify
As mentioned earlier, you can’t get an expunction for DWI offenses aside from the mentioned exceptions. However, even if you’re eligible, that doesn’t mean you can apply for an expungement petition right away.
There is no universal five-year expunction wait for dismissed DWI cases or pardons. DWI probation and deferred adjudication do not become expungeable merely because time passes.
A limitations-based request requires the actual applicable limitation and tolling analysis. Other Chapter 55A routes can apply before limitations expire; a generic two- or three-year estimate does not decide eligibility.
The 180-day, one-year and three-year periods in Article 55A.052 apply to a particular no-indictment-or-information route, not every expunction. The person must satisfy Article 55A.051; the target misdemeanor and any felony arising from the same transaction must meet the charging requirements. Prosecutor certification under Article 55A.052(a)(4) is an alternative to those periods. Qualifying dismissal grounds under Article 55A.053 and expiration of limitations under Article 55A.054 are separate routes.
Under that no-presentment route, the period is generally one year for a Class A or B misdemeanor arrest without a same-transaction felony charge, and three years for a felony arrest or same-transaction felony charge. A 180-day Class C period is not a shortcut for reducing a DWI charge.
Step 2: File a Petition for Expunction
You need to fill out a form to file a petition for expunction with the appropriate court. You can do the former yourself or hire an attorney to help you prepare the files. The latter is recommended since errors can prevent you from getting an expunction.
Typically, the form asks for the following:
- Personal information
- Offense type
- Date and place of the arrest
- Cause number
- A complete list of the record-holding agencies and other entities required by Article 55A.253, with their applicable physical and email addresses
Prepare a verified petition and a proposed order containing the required information. Filing costs and hearing procedures depend on the route and court; the expunction hearing is not a new criminal trial.
Step 3: Attend the Hearing
Under Article 55A.254, the court sets the general petition hearing no earlier than the 30th day after filing and gives the petition and hearing notice to the listed recipients, except central federal depositories. The clerk handles the statutory transmissions; DPS notifies the listed federal depositories. The petitioner must supply a complete, accurate agency list.
The hearing court invites those parties to argue against your expungement. That’s why it’s best to hire a criminal defense attorney to fight for your case.
When the order is final, the clerk sends it to DPS, the Office of Court Administration and the listed state and local governmental entities. DPS provides the required federal and private-entity notices. The order governs the covered records; agency processing is not an instant or universal record-clearance guarantee.
Wrapping Up
So, can a DWI be expunged in Texas?
A qualifying DWI arrest can be expunged, but dismissal, a reduction or completion of DWI deferred adjudication does not automatically qualify. An ordinary DWI conviction generally requires a different analysis, including whether any narrow statutory exception or nondisclosure route applies.
Identify the legal route before calculating a waiting period. Criminal expunction also does not automatically remove driver’s-license suspension or revocation records; Article 55A.152 preserves separate Transportation Code rules.
If you need a prior criminal charge erased off your record in Houston, contact us today to schedule a consultation and learn more about how we can help. We also serve Harris County, Montgomery County, Houston, Galveston County, Conroe, and Fort Bend County.
Contact The Napier Law Firm today for a free consultation. Call us at (713) 470-4097 or fill out our online form. We serve clients throughout Houston, The Woodlands, Conroe, and surrounding areas in Harris, Montgomery, and Fort Bend counties.