Expanding Eligibility for Orders of Nondisclosure for First-Time DWI and Other Offenses
Let’s face it, a criminal record is not a good thing when it comes to employment opportunities and other things that require a background search. Even when the criminal offense is non-violent and unintentional, like DWI, it can negatively impact a person’s future. Our Texas lawmakers recognized this stigma and did something about it. This past legislative session (2017), Texas lawmakers from both sides of the aisle proposed legislation to help expand the opportunity to seal criminal convictions with an order of non-disclosure.
What is an Order of Non-Disclosure?
Having your record “sealed” is common verbiage used by laypersons. Under Texas law, this is referred to as non-disclosure. Orders of non-disclosure “seal” a criminal record from the eyes of the general public and allow a person to deny such record in most situations. However, the offense will remain visible to law enforcement, state and federal authorities, and employers in government fields.
Non-Disclosures Prior to House Bill 3016
Before the legislature acted in 2017, the Texas Government Code required a court to issue an order of nondisclosure of criminal records for a person receiving discharge and dismissal of certain nonviolent misdemeanors for which the person was placed on deferred adjudication community supervision (probation). The code also allowed for some “second-chance” considerations under limited circumstances. However, the Texas Government Code did not previously allow for nondisclosure of DWI offenses under any scenario.
What is HB 3016?
Governor Greg Abbott signed HB 3016 on June 15th, 2017. HB 3016 will be effective, retroactively, beginning September 1, 2017. This law amends and expands the Texas Government Code to allow a person convicted of nonviolent misdemeanors, including DWI’s, to petition the court for orders of nondisclosure under certain circumstances and alters some waiting periods.
HB 3016 also allows a person to petition for an order of nondisclosure of criminal history if that person was ineligible to receive an automatic order based solely on a judge’s affirmative finding that issuing such an order was not “in the best interest of justice.” If the offense was a misdemeanor punishable by a fine only an individual may petition for an order of nondisclosure immediately upon the date of completion of their sentence. However, if the misdemeanor was not punishable by fine only, they must wait until the second anniversary of the date of completing the sentence to petition.
See the full text of HB 3016 – Enrolled version.
Orders of Non-Disclosure for DWI Offenses
HB 3016 now allows a person convicted of a first-time Driving While Intoxicated offense with a blood-alcohol concentration (BAC) less than 0.15 to petition for an order of non-disclosure of criminal history related to that offense. However, there are certain criteria that must be met to be eligible to petition for a non-disclosure of a Texas DWI.
A person may petition to have a DWI sealed only if he/she:
- has never been convicted of or placed on deferred adjudication community supervision (probation) for another offense—this does not include a traffic offense (punishable by fine only);
- has successfully completed any imposed community supervision and any term of confinement;
- has paid all fines, costs, and restitution imposed; and
- the waiting period has elapsed:
- 2 years if the person successfully completed a period of at least six months of driving restricted to a motor vehicle equipped with an ignition interlock device as a part of the sentence; or
- 5 years if there was no interlock requirement as part of the sentence.
Additionally, the court will not issue an order of nondisclosure if an attorney representing the state presents evidence sufficient to the court that demonstrates that the underlying offense, for which the order was sought, resulted in a motor vehicle accident involving another person (this includes a passenger of the defendant).
When may you Petition the Court for an Order of Non-Disclosure for a DWI?
The law requires individuals to wait until the second anniversary of the date of completion of their sentence, if the person:
- complied with all conditions of the sentence for a period not less than six months; and
- was restricted to operation of a motor vehicle equipped with an interlock device for at least 6 months.
If the court did not impose the above conditions, they are required to wait until the fifth anniversary of the date of completion of their sentence.
NOTE: Having a first-time DWI sealed by an Order of Non-Disclosure will NOT prevent another DWI from being charged as a DWI (Misdemeanor Repetition).
What are the Disqualifying Factors for DWI Sealing?
A person may NOT have their DWI record sealed if:
- The DWI was a 2nd or 3rd offense;
- The DWI involved a finding that the Blood-Alcohol Content was greater than 0.15;
- The DWI involved an accident involving another person;
- The DWI was within the last 2 years (5 years if there was not interlock requirement)*
*If the waiting period has not expired, but all other conditions are met, the applicant must simply wait until the waiting period is complete.
Which Offenses are Specifically Excluded from Consideration for an Order of Nondisclosure?
Certain misdemeanors are not eligible for consideration for an order of nondisclosure, mostly intoxication related offenses, which include any misdemeanors under the:
- Alcoholic Beverage Code §106.041 (possession and/or consumption of or selling alcohol to minors); or,
- Penal Code § 49.04(d) (driving while intoxicated .15 or higher);
- 49.05 (flying while intoxicated);
- 49.06 (boating while intoxicated); or,
- 49.065 (operating an amusement park ride while intoxicated).
Additionally, any conviction under Chapter 71 of the penal code (engaging in organized criminal activity) may not be non-disclosed.
Furthermore, a person will not be granted an order of nondisclosure and is not eligible to petition the court if the person has previously been convicted or placed on deferred adjudication probation for:
- an offense requiring sex offender registration;
- capital murder;
- aggravated kidnapping;
- trafficking/continuous trafficking of persons;
- abandoning or endangering a child;
- violation/repeated violation of certain court orders or conditions of bond in a family violence, sexual assault or abuse, stalking, or trafficking case;
- stalking; or
- any other offense involving family violence.
Results of HB 3016 and the New Non-Disclosure Law
HB 3016 makes it easier for persons with certain low-level nonviolent offenses, particularly DWI’s, to obtain employment and become productive members of society. However, subsequent offenders will remain accountable because law enforcement may still use the “sealed” conviction against subsequent offenses and certain entities will still be able to view the offense.
Contact our Criminal Defense Team Today to See if You Qualify to Have Your Record Sealed Under this Law
Contact Barnett Howard & Williams today and let our team help you determine whether you may be eligible for a non-disclosure under this law when it takes effect in September 2017. We are happy to provide a free consultation to walk you through the steps for sealing your record. Call our attorney today at (817) 993-9249.