Austin, TX

DWI reductions may now be eligible for an expunction.

Change in the expunction law.

If you were charged with a DWI at was refiled as Obstructing a Roadway, you might have been told that you are ineligible for an expunction of the DWI, even though it was dismissed. Before 2021, this would have been the case before 2021. The letter of the law has not changed. However, the Texas Supreme Court in Ex Parte RPGP Ex Parte RPGP has changed the way courts are interpreting the expunction law.

In that case, the Court decided to use an “offense-based” approach as opposed to the “arrest-based” approach used by some courts previously. What the heck does that mean? Well it breaks down like this: Before RPGP, some courts would look at the entire arrest when deciding if an offense is expungeable. If ANY of the charges that came out of the arrest led to a conviction, then none of the offenses could be expunged, even if they were dismissed. So in the DWI/Obstructing example, because the Obstructing a Roadway was a conviction, the DWI could not be expunged, because it arose out of the same arrest.

This approach led to some unintended consequences. One charge can have no basis in fact and be dismissed quickly, while another charge leads to a conviction. Why then, should the first charge be ineligible for an expunction because of another – essentially unrelated – charge? It’s this kind of discrepancy the Court in RPGP set out to correct.

Rather than take the arrest-based approach used previously, the Court in RPGP decided to take an offense-based approach. That is, they look at the offense in isolation. If the offense meets the requirements, then it can be expunged, without looking at the circumstances surrounding the arrest.

The DWI/Obstructing situation is a very common example, but this also affects any case where a person is facing multiple charges and only takes a conviction on one charge, while the other is dismissed. In RPGP, the defendant was charged with DWI and possession of marijuana. The DWI was dismissed, and the lower Court took the position that it could not be expunged because of the marijuana conviction. The Texas Supreme court said “not so fast, my friend!” And allowed for the expunction by using the offense-based approach.

Some caveats

This change in interpretation of expunction laws applies to misdemeanors only, or in some cases where a felony and misdemeanor are charged. There is some hope that felonies will get the same treatment, and another case is working its way up the appellate courts that could change the way felony expunctions are handled. But for now misdemeanors only.

Also, this only applies to cases where the DWI was actually refiled as an Obstructing a Roadway. You would know this is the case because the Obstructing would have a new Cause #, separate from the DWI. Some jurisdictions used to reduce the DWI to Obstructing a Roadway but keep the same cause number. Unfortunately, these cases would not be eligible for an expunction.

Bottom line – have an attorney review your case

With all these changes and caveats, it is more important than ever to have an attorney review your case to determine if you are eligible for an expunction or nondisclosure for your DWI or other misdemeanor. This blog and my Youtube channel are for educational purposes only, but if you would like for me to review your case to see if you are eligible, you can set up a free case evaluation. Visit atx.legal or call us at 512-677-5003. We serve clients in need for representation for criminal and personal= injury issues throughout Travis, Hays, and Williamson counties.

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