New Statute May Expand Expunction Rights
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.