Expunctions Related to DWI Reductions to Obstruction of a Highway

I had that situation, had that successfully expunged in your jurisdictions. Really, not many? Ok. Well, there’s a disagreement among the courts in Texas about exactly how this is supposed to play out. Now, the current version of the law says, ” no court ordered probation for the offense, unless it’s a Class C misdemeanor.” So, in this situation where the DWI is dismissed and there’s no probation for the DWI but it’s reduced to a deferred, not a conviction but its reduced to a deferred so the person is not convicted. In most jurisdictions that DWI’s going to be able to be expunged. Unfortunately, in the jurisdiction of the 3rd court of appeals and other courts that may follow that, we’ve got a real bad case called ‘Travis County attorney versus M.M.’ and in that case, M.M. was charged with DWI, resisting and assault on a police officer.

The DWI was dismissed, there was a deferred adjudication on resisting and then a 1245, the assault into the deferred which don’t ask me how they did that, but they did. and then so, what was, the court held on that was; now sub-section A says; the person…. very first part of the expunction says, “the person is entitled to have all records and files related to an arrest expunged if they meet all these requirements.” well the court said that Because sub-section A the unit to be expunged is arrest then that’s the only thing that can be expunged, not the individual charge. so, basically the holding of that case is,” unless everything arising out of an arrest is expugnable, then none of it is”

so in that situation of what we’re talking about the DWI reduced to obstructing a highway, even though the probation was not for the DWI the M.M. court, the 3rd court and M.M. said that,” because everything is not expugnable out of it, then none of it is.” and, but take heart if you do have that issue in one of yours, or you have a judge who’s inclined to follow M.M., that it is based on a previous version of a statute and the appeals that are contesting that, just haven’t gone through yet. So, I’m hopeful that once they do, they’ll acknowledge that the law has changed and that’s no longer the case. and there’s only one case that has even cited M.M. and followed it and that is Ex parte M.R.L and if you ever need this case there’s a foot note on it that says that,” we disagree with M.M. because…” well not that we disagree with it but the legislature has substantially changed the law since M.M. was decided so if you need that, that’s where you look for that.

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  • Francisco Hernandez
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