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.