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, which means that prospective employers or educational institutions will find out about the charge. If you don’t know whether your charge was expunged, then it hasn’t been. An expunction involves your attorney drafting a petition, filing it (expect about $350 in filing fees), and then attending a hearing where a judge signs an expunction order.
Not only does an expunction erase all records of the offense, but it also allows people to legally deny that the arrest ever occurred. It’s such a great tool that my goal in every representation is to reach an outcome that allows my client to eventually expunge the arrest.
The expunction statute is one of the most complicated laws that criminal defense lawyers deal with, and a recent appeals’ court decision in one of my cases has enlightened a contentious area of this law.
A regular practice in terms of dealing with weak DWI cases is for the prosecutors to reduce the DWI to a lesser charge, such as Obstruction of a Highway or Reckless Driving. In exchange for the DWI being dismissed, a defendant completes a term of probation on the lesser charge. Defense lawyers usually advise their clients that the DWI is eligible for expunction due to the fact that it was dismissed. However, prior to my recent case (Travis County District Attorney v. M.M.), the prosecutors in Travis County regularly opposed expunctions of DWI arrests in this situation. To support their position, they pointed to the plain language of the statute, which says that one of the requirements for an expunction is:
“The person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor.”
According to prosecutors opposing the expunction of a DWI (that was reduced to a lesser charge), the fact that the defendant completed court-ordered community supervision on the lesser charge meant that the DWI was not eligible for expunction. (Note: “community supervision” is just our courts’ way of saying “probation.”).
However, using legislative history, I successfully argued that the Legislature never intended for a court to look at other offenses when analyzing the expunction eligibility of a specific charge. In the recent M.M. case, the appellate court adopted my “charge-based approach,” as it found that a DWI is eligible for expunction as long as there was no community supervision ordered on the DWI offense. If the community supervision was ordered as part of a different case (for example, the lesser charge of Obstruction of a Highway), it has no bearing on whether the DWI is eligible for expunction.
Since it’s a common practice for defense attorneys to recommend that clients take deals where their DWI is dismissed in exchange for taking probation on a lesser charge, the M.M. ruling ensures that these defendants can still get those ugly DWI arrests wiped off their records.