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hris Perri Law is a criminal defense law firm located in Austin, Texas.


Chris' Blog

The blog of Chris Perri Law, written by Chris Perri and Shannon Perri. Read the latest in exciting cases where justice is served.

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Chris Perri fights to expand expunction rights

Chris Perri


Expunction rights have been a hotly debated area in the legal community for quite some time. The State Legislature amended the expunction statute in 2011, and there has been no case law yet to help decipher its full interpretation since. However, Chris Perri, widely known as an expunction expert, has filed an appellate brief with the Third Court of Appeals (in DPS vs GBE) to advocate for his client and clarify once and for all the interpretation of current expunction law.

First, let’s back up and explain what expunctions are and why they are so significant to clients as well as our society. Expunctions are the formal process of literally erasing all criminal records arising out of a particular arrest. One of the fundamental tenets of our law is that everyone is deemed innocent until proven guilty. Thus, just because someone is arrested of a crime does not necessarily mean they will be found guilty. Let’s say someone is arrested but their case ends up getting dismissed; without a formal expunction, the arrest will stay on their record, following the client for the rest of his or her life. Employers, schools, licensing boards, etc. will still see the arrest and will most likely approach the individual as if they are guilty of that crime. That’s why expunctions exist, and it’s so vital to get one if your case outcome allows it. (Many attorneys, such as Chris Perri strive to obtain expungible dispositions for their clients, which mean that their clients would have the ability to obtain an expunction at a later date.) Essentially, expunction rights make it so that individuals don’t get judged by their arrest, but by their case’s outcome, as it should be. It’s about protecting our basic rights – innocent until proven guilty.

However, expunction law can get murky, as with the issues arising in the case Chris is handling on appeal. Chris’ case involves a common issue that arises over and over; thus attorneys throughout the state are watching closely to see what the Third Court of Appeals holds.

In Chris’ case, his client was arrested for a DWI, and it was his first time in the criminal justice system. His client’s primary goal was to obtain a legal outcome that would allow him not to have the words ‘DWI’ on his permanent record. Because the state’s case against him was relatively weak, they were open to a compromise. In the client’s case, he didn’t want to pursue the risk of trial, and was willing to plead guilty to a lesser charge – “reckless driving” – and take time already served in jail as his sentence.  Another common outcome in Travis County is for defendants to accept deferred adjudication on a reduced charge of “obstruction of a highway,” whereby the defendant agrees to extensive probation terms, such as drug and alcohol education and community service. This a common outcome for first-time DWI offenders, especially when the state feels they may not be able to win a guilty verdict at trial, yet aren’t comfortable dismissing the case altogether.  

What Chris is arguing is that since his client did not plead guilty to a DWI, the client should be able to expunge the DWI arrest, since having an arrest on one’s record virtually implies guilt and will force the client to battle the stigma of this crime for the rest of his life, even if there was not enough evidence for him to be convicted. Yet, the state is arguing against Chris that the arrest itself wasn’t necessarily a “wrongful arrest”, so it should stay on his record, defeating the purpose of the compromise for the lesser sentence.  Chris won this issue at the trial court level, where the judge remarked that DPS’ interpretation of the statute could “chill” plea bargaining across the state, as criminal defendants charged with DWI might not be willing to enter into a plea deal if they cannot later expunge the dismissed DWI charge. Since approximately 95% of all criminal cases result in a plea-bargain deal, chilling such plea bargaining would potentially clog up an already crowded system and lengthen the process further.

If the Third Court of Appeals sides with the State, there will be a massive shift in how attorneys advise clients to proceed. It will mostly likely generate an incentive not to plea bargain, but for all clients to go to trial on their case, as often the incentive to plead to a reduced charge is to maintain as best a criminal record as possible. If clients know they will still have the arrest for the original, higher charge on their record, more people may find it worth it to take the risk of trial.  

The Third Court of Appeals’ findings on Chris’ appeal will have a dramatic effect on how criminal law is practiced by many criminal defense attorneys. Most likely, the Court will issue an opinion in the next six to eight months. Stay tuned to our blog for any updates on expunction rights.

New Statute May Expand Expunction Rights

Chris Perri

On Tuesday, I gave a presentation to the Austin Criminal Defense Lawyer's Association on expunction law. One of my appeals has been used as authority for denying expunctions to defendants in the multiple-offense context, and I showed my fellow defense lawyers why this case shouldn't be used in this way. I also spoke about the new expunction statute, which adopts a charge-based approach to expunctions. I've been advocating for this charge-based approach for several years, and it's nice to see the Legislature listen. The expunction statute is very complex, but a simple example can show readers what I'm talking about. Take a defendant charged with a DWI. It's considered a great outcome to have the DWI dismissed in exchange for a client taking deferred adjudication on a reduced charge of Obstruction of a Highway. (Note: a deferred adjudication involves a term of probation ordered by the court). For many years, defense attorneys expunged the DWI arrest from such a client's record. However, some prosecutors and judges have interpreted the appellate case I worked on (Travis County District Attorney v. M.M.) as holding that the DWI was not eligible for expunction if the client took probation on a different charge arising out of the same arrest.

The argument between defense lawyers and prosecutors hinges on the interpretation of the term "arrest" in the expunction statute. Does arrest mean the charge that the defendant seeks to expunge (the charge-based approach), or does it mean all charges arising from a single arrest incident (the arrest-based approach)? I've advocated for the charge-based approach whereby courts view each charge as a separate arrest and determine the expungibility of that individual charge without reference to other charges arising from the arrest incident. The most recent Legislature made amendments that clarified its adoption of the charge-based approach. That means that clients can expunge their DWI arrests from their records even if they took a conviction or deferred adjudication on a reduced charge.

My talk on Tuesday provided other defense attorneys with litigation tools to help expunge their clients' arrests in situations where multiple charges arise out of a single arrest incident. I've attached my PowerPoint Expunction Law in the Wake of MM, in case anyone's interested in taking a look.

Due to the complexity of the expunction statute, it's important to hire an experienced, knowledgeable attorney when you're seeking to expunge your records. I'll make sure that you're expunging every possible charge, and I'll fight for your rights if we encounter any opposition from the prosecution.

Advice: Exercise your rights when you're pulled over

Chris Perri

As a criminal defense attorney, the most common question that people ask me is: “What do I do when a cop pulls me over for a DWI?” My first response: “Hopefully, you haven’t been drinking.”

But the reality is that drinking alcohol and driving a vehicle is not illegal under the laws of Texas. Instead, it’s illegal to drive while intoxicated, which means having lost the normal use of your physical or mental faculties, or having a blood-alcohol concentration (BAC) of .08 or more.

There’s not a single right answer to the question of how you can “get off” of a DWI. However, how you conduct yourself during a police officer’s investigation will greatly influence the ultimate outcome of your case.

There are three general categories of people who are investigated for DWI: (1) the totally sober, (2) the people who have had a couple of beers (or about a drink per hour) during their night out, and (3) the people who are definitely intoxicated.

Let’s consider each case.

The Sober Driver

If you haven’t had a drop of alcohol all night, you should cooperate fully with the police officer who stops you. Be honest when the officer asks you questions. If the officer asks you to step out of the car and begins to instruct you to perform sobriety tests, go ahead. At the end of this examination, the officer will give you the opportunity to take a breath or blood test. Go ahead and take the breath test. It should be .000 if you haven’t been drinking. If, for some reason, the breathalyzer shows the presence of alcohol, ask for a blood test, as they’re more accurate.

But in my experience, officers know when someone’s completely sober, so a DWI investigation likely won’t even begin in this situation. Instead, you’ll probably be cited for whatever traffic violation led to you being pulled over, and then you’ll be on your way.

The Driver Under the Influence

Unless you’re under 21 years old, it’s not illegal to drive while under the influence of alcohol, as long as your BAC hasn’t gotten up to .08. But if you’ve had a few drinks, it’s very hard to know whether you’ve reached that point. The following chart can be a useful guide:

However, in my experience, clients have difficulty determining their exact BAC, as it's hard to keep an accurate count of the number of drinks consumed and total time spent drinking. For this reason, it’s very important that you refuse to take a breath or blood test. If either of these tests shows that your BAC is at .08 or higher, the likelihood of the prosecutors dismissing your DWI charge becomes almost zero. Instead, if you want to fight the case, you’re going to have to go to a jury trial, where a jury will hear scientific evidence about the validity of the machine that recorded your BAC level. While I’m confident that I can cast doubt on a test that’s between .08 and .10, it’s a difficult hill to climb; plus, you’ll end up spending a lot of time and money that you might have saved if you had just refused to blow.

Regarding field sobriety tests, most people don’t realize that these are entirely optional. A police officer cannot force you to do these tests. Of course, the officer will say that you gave your consent to do the tests when you signed up for your driver’s license, but that doesn’t really mean anything.

I suggest that you refuse the field sobriety test if you have any doubt about your sobriety. There are three commonly used tests, all of which are recorded on videotape: (1) the horizontal gaze nystagmus, (2) the walk-and-turn, and (3) the one-leg stand.

The first test is highly subjective, as it’s the one where an officer asks you to follow a stimulus (a penlight or finger), and the officer records whether your eye makes an involuntary jerking called a “nystagmus.” Everyone has a nystagmus, but a drunk person apparently has a more distinctive nystagmus than a sober person. Almost every officer will record that you exhibited a distinct nystagmus, which indicates intoxication. Since the video camera doesn’t zoom in on your eyes, there’s no way to contest whether you really exhibited this distinct nystagmus.

The second test is the walk and turn, which is really a divided attention test. The officer gives you a confusing series of tasks to perform, and it’s very easy to exhibit “clues” of intoxication. For example, you may feel like you’re ready to perform the test, but if you start before the officer tells you to begin, then that’s a “clue.”

The final test asks you to stand on one leg, with your hands at your side, for 30 seconds while counting aloud. It’s difficult for many sober people to do this without wobbling around before they regain their balance. If you raise your arms for balance, that’s another “clue” of intoxication.

The problem with refusing these tests is that you’ll be arrested for DWI, as officers don’t like it when people don’t cooperate with them. The videotape of the field sobriety tests is usually the only evidence of a defendant’s intoxication, so the officers try to make it as difficult as possible to refuse. They’ll even tell you that you have a chance to go home instead of jail if you just cooperate. That’s a lie. Once an officer asks you to perform field sobriety tests, s/he’s already determined that you’re getting arrested for DWI. You’re better off cutting your losses and spending a night in jail without giving the prosecution further evidence.

Of course, you’ll be asked why you’re refusing the tests. DO NOT say: “Because I’m drunk.” Really, that’s happened before, and the prosecutor will take the case to a jury to get a conviction, pointing to this statement as evidence of your guilt. Instead, say: “On the advice of my attorney, I’m refusing all tests.” If the officer continues to inquire, give the officer your attorney’s business card, and say that the officer can call the lawyer if the officer wants to find out the reason you’re refusing. (The back of my business card explains that I've advised my client to refuse tests, so if you have one of these, there's even less of a need to justify your decision to the officer).

It’s true – my advice is to exercise your constitutional right to decline to provide evidence that could be used in a prosecution against you.

The Drunk Driver

If you’ve had more than a beer per hour during your drinking span, you’re intoxicated. That means you’re probably slurring your words when you talk, and you smell like alcohol. In this case, you want to minimize any evidence that the investigating officer can acquire. When you’re asked questions, respond with a simple “yes” or “no.” If the questions require more of a response, limit your answers as much as possible. The conversation is being audiorecorded, and you want to minimize evidence of your slurred speech.

Of course, you’ll be asked why you’re refusing all tests. Just say: “My attorney said so.” Give the officer my card, and shut up.

Also, remember that you’re being recorded while you’re on the way to jail. Find a spot on the floorboard and stare at it. Don’t fall asleep. Try not to vomit. Don’t talk to the arresting officer anymore. You might think you sound smart when you’re drunk, but believe me, you’ll regret what you say when you look back at the video.

What about my license?

Once you’re arrested for a DWI, the Department of Public Safety (DPS) will suspend your license. If you failed a breath or blood test, then the suspension is for 90 days. If you refused the test, your suspension is 180 days. However, in Travis County it’s easy to get an occupational driver’s license, which allows you to continue driving to work or school (as well as other essential functions). This suspension is completely separate from your criminal case. In my opinion, saving 90 days of a suspension by consenting to the breath/blood test is a bad idea because failing one of these test makes a criminal conviction much more likely. Remember, a criminal conviction for DWI results in having to pay $1,000 per year for three years just to keep your driver’s license, so you want to do whatever is necessary to avoid this result.

Expunging your DWI arrest just became easier

Chris Perri

Just because your criminal charge has been dismissed doesn’t mean that your arrest record goes away. If you don’t obtain a valid order of expunction, government records and online databases will continue to reflect your arrest...

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