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The New Non-Disclosure Law for DWIs

What is an Order of Nondisclosure?

An Order of Nondisclosure (ND) is a court order prohibiting certain public entities, such as courts and police departments, from disclosing certain criminal records. However, this is a general rule, which means there are exceptions. Certain state agencies are still entitled to obtain information concerning an offense that is the subject of an order of nondisclosure. The benefit of an order of nondisclosure is that it legally frees a person from disclosing information about their criminal history in certain situations, like job applications.

It is important to understand that a ND does not erase or delete records, like an expunction does. Instead, the records are “sealed” by Texas Department of Public Safety. But, despite this sealing, numerous agencies and entities will still have access to the client’s records and, in cases involving these agencies, disclosure may be required.

Non-Disclosures of DWIs

On June 15, 2017, Governor Greg Abbott signed Texas House Bill 3016 thereby expanding the "Second Chance" law that – for the first time ever – would allow certain individuals convicted of a single low-level offense of driving while intoxicated (DWI) (under certain circumstances with certain waiting periods) to seek a non-disclosure of their DWI.

The new law on sealing certain DWI offenses is found in Chapter 411, Government Code:

Sec. 411.0731. PROCEDURE FOR COMMUNITY SUPERVISION FOLLOWING CONVICTION; CERTAIN DRIVING WHILE
INTOXICATED CONVICTIONS.

(a) Provides that this section applies only to a person placed on community supervision under Chapter 42A, Code of Criminal Procedure, following a conviction of an offense under Section 49.04, Penal Code, other than an offense punishable under Subsection (d) of that section and under a provision of Chapter 42A, Code of Criminal Procedure, other than Subchapter C, including certain provisions.

(b) Provides that, notwithstanding any other provision of this subchapter or Subchapter F, a person described by Subsection (a) whose community supervision is not revoked and who completes the period of community supervision, including any term of confinement imposed and payment of all fines, costs, and restitution imposed, is authorized to petition the court that placed the person on community supervision for an ND of criminal history record information under this section if the person satisfies the requirements of this section and Section 411.074 and has never been previously convicted of or placed on deferred adjudication community supervision for another offense other than a traffic offense that is punishable by fine only.

(c) Requires that a petition for an ND of criminal history record information filed under this section include evidence that the person is entitled to file the petition.

(d) Requires the court, except as provided by Subsection (e), after notice to the state, an opportunity for a hearing, and a determination that the person is entitled to file the petition and issuance of an ND of criminal history record information is in the best interest of justice, to issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the community supervision.

(e) Prohibits a court from issuing an ND of criminal history record information under this section if the attorney representing the state presents evidence sufficient to the court demonstrating that the commission of the offense for which the order is sought resulted in a motor vehicle accident involving another person, including a passenger in a motor vehicle operated by the person seeking the ND.

(f) Authorizes a person to petition the court that placed the person on community supervision for an ND of criminal history record information under this section only on or after the second anniversary of the date of completion of the community supervision, if certain conditions are met, or the fifth anniversary of the date of completion of the community supervision, if certain conditions are met.

There is also a new law for folks who take jail instead of probation or who don’t complete their probation successfully:

Sec. 411.0736. PROCEDURE FOR CONVICTION; CERTAIN DRIVING WHILE INTOXICATED CONVICTIONS.

(a) Provides that this section applies only to a person who is convicted of an offense under Section 49.04, Penal Code, other than an offense punishable under Subsection (d) of that section and is not eligible for an ND of criminal history record information under Section 411.0731.

(b) Authorizes a person described by Subsection (a) who completes the person's sentence, including any term of confinement imposed and payment of all fines, costs, and restitution imposed, notwithstanding any other provision of this subchapter or Subchapter F, to petition the court that imposed the sentence for an ND of criminal history record information under this section if the person satisfies the requirements of this section and Section 411.074 and has never been previously convicted of or placed on deferred adjudication community supervision for another offense other than a traffic offense that is punishable by fine only.

(c) Requires that a petition for an ND of criminal history record information filed under this section include evidence that the person is entitled to file the petition.

(d) Requires the court, except as provided by Subsection (e), after notice to the state, an opportunity for a hearing, and a determination that the person is entitled to file the petition and issuance of an ND of criminal history record information is in the best interest of justice, to issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense for which the person was convicted.

(e) Prohibits a court from issuing an ND of criminal history record information under this section if the attorney representing the state presents evidence sufficient to the court demonstrating that the commission of the offense for which the ND is sought resulted in a motor vehicle accident involving another person, including a passenger in a motor vehicle operated by the person seeking the ND.

(f) Authorizes a person to petition the court that imposed the sentence for an ND of criminal history record information under this section on or after the third anniversary of the date of completion of the person's sentence, if certain conditions are met, or the fifth anniversary of the date of completion of the person's sentence, if certain conditions are met.

There are also waiting periods to get this new ND for a DWI:

Sec. 411.074. REQUIRED CONDITIONS FOR RECEIVING AN ORDER OF NONDISCLOSURE.

(a) Provides that a person may be granted an ND of criminal history record information and, when applicable, is entitled to petition the court to receive an ND only if, during the period after the court pronounced the sentence or placed the person on community supervision, including deferred adjudication community supervision, for the offense for which the ND is requested, and during any applicable waiting period for the person under this subchapter following completion of the person's sentence or community supervision, including deferred adjudication community supervision, the person is not convicted of or placed on deferred adjudication community supervision, rather than community supervision, under Subchapter C, Chapter 42A, Code of Criminal Procedure, for any offense other than a traffic offense that is punishable by fine only. Makes conforming and no substantive changes.

(b) Prohibits a person from being granted an ND of criminal history record information and provides that a person is not entitled to petition the court for an ND if:

(1) the person requests the ND for, or the person has been previously convicted of or placed on deferred adjudication community supervision for certain offenses, rather than if the person was convicted or placed on deferred adjudication community supervision. Makes no substantive changes; or

Here is the best part about this new ND law - even though the law became effective 9/1/17, it is retroactive! That means anyone who has had a DWI conviction will be eligible if they meet the criteria.

So, what must be shown to get an ND for a DWI?

If you received community supervision and successfully completed it, you must be able to show:

that you were placed on, and successfully completed, all terms of community supervision; and

that the conviction for the DWI was for a blood alcohol content under 0.15; and

that the DWI did not result in an accident involving another person, including a passenger in the petitioner’s vehicle;
and

that you paid all fines, costs, and restitution imposed; and

that you have never before been convicted of or placed on deferred adjudication community supervision for another offense other than a fine-only traffic offense.

Next you must determine the applicable waiting period. It is two years if you successfully complied with an order requiring your vehicle to be equipped with an interlock device for at least six months as a condition of community supervision. If there was no interlock device as a condition of community supervision, the waiting period is five years and begins on the date the person successfully completes his community supervision.

If you did not take probation but instead took jail time or violated probation and jail time was imposed, the waiting period is three-years if you successfully complied with an order requiring your vehicle to be equipped with an interlock device for at least six months as a condition of his/her sentence. There is a five-year waiting period if the person was not required to have an interlock device as a condition of his/her sentence.

You CANNOT get an Order of Non-Disclosure if:

It is an Enhanced DWI Conviction;

A DWI 2nd or 3rd offense;

A Boating While Intoxicated (BWI)/Flying While Intoxicated (FWI); or Operating an Amusement Park Ride While Intoxicated

A case where the state can present “sufficient evidence” that the DWI resulted in an accident involving another person, including a passenger in the petitioner’s vehicle. Tex. Gov’t Code §§411.0731(e), 411.0736 (e).

If you think you are eligible for an ND of your DWI, call me & I will help get your case sealed! 972-492-ATTY (2889)

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Kimberly Griffin Tucker, P.C.

Carrollton:
3740 N. Josey Lane
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Carrollton, TX 75007
Office: (972) 492-2889
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