The Hole In The Non-Disclosure Statute

Non-Disclosure is a great way for persons to get a fresh start after running afoul of the law, getting deferred adjudication, and completing the deferred successfully. Orders of Non-Disclosure seal those records from dissemination into the public domain by the custodian of records, the Texas Department of Public Safety. However, there's a hole in the statute resulting from DWI arrest records which remain available to the public, even when the person receives a "reduction" and completes a deferred adjudication successfully.

The hole involves cases of DWI arrests where a plea agreement is reached on a "reduced" charge of obstructing a highway, reckless driving, or a like offense in which the accused is eligible for deferred adjudication (DWI is not deferred eligible in Texas). In Brazos County, the usual course involves the prosecutor adding a "Count II" to the misdemeanor complaint alleging obstructing a highway, etc. Count I, the DWI, is waived and the accused pleads guilty to the obstructing count.  The court grants deferred and the client goes their merry way, successfully completing the probation.

After successfully completing the deferred the client comes back to me and asks if they can get their records sealed using an Order of Non-Disclosure.  Of course they can. However, only the obstructing count will be sealed.  The DWI arrest will remain on their record despite the completed deferred.  Why?  Because only the obstructing count was deferred, not the DWI count.  Even if the clever defense lawyer includes the DWI arrest information in the Order of Non-Disclosure, DPS will not seal the DWI arrest record.

What about expunction, you ask?  Excellent point.  However, the problem is Chapter 55 of the Code of Criminal Procedure which provides for expunction.  Chapter 55 does not authorize expunction for an arrest "unless" there was no court ordered community supervision resulting from the arrest (except Class Cs).   But we know there was court ordered community supervision for the obstructing a highway count. Consequently, the person is not technically eligible for expunction of the DWI arrest and the local prosecutors have been objecting to expunction petitions on this precise issue in Brazos County. 

What's the net result of this hole in the Non-Disclosure statute?  Presently, even though a good DWI defense lawyer may get the prosecution to reduce a DWI to a deferred eligible offense, the accused person is stuck with a DWI arrest record that can neither be sealed, nor expunged.  A big problem for young persons having made a mistake in college and now trying to develop careers in corporate America. Hopefully, the Texas Legislature will eventually fix this problem since the spirit of the Non-Disclosure law is being thwarted by a hole in the statute resulting when DWIs are reduced to deferred adjudication eligible offenses. 

What's an Involuntary Breath Test?

During our last look into the coercive nature of the DIC-24 statutory warning, we noted the DWI suspect under 21 years old is informed by the police that if they give a breath/blood sample and the result is less than .08, they may still be subject to less severe criminal penalties than if they completely refused to take the test. Let's look how the Texas courts might evaluate a challenge to a breath/blood test result based on this coercive language.

By analogy, in order for a person's confession to be admissible, the confession must meet certain standards for voluntariness. Although the breath/blood test has been deemed "not testimonial" by certain Texas courts, using the confession analogy can help us fashion an argument to protect the record in a DWI prosecution where the accused is a minor and provided a breath/blood sample after being read the DIC-24.

The test of admissibility should be that a breath/blood sample was provided freely, voluntarily, and without compulsion or inducement. See Sossamon v. State, 816 S.W.2d 340 (Tex. Crim. App. 1991)(confession context). In this case, the Court of Criminal Appeals determined whether or not a confession was voluntary due to a promise. First, the court determined a promise must be of some benefit to the accused. (certainly, the promise of a less severe penalty than the accused might otherwise receive could satisfy this element.) Second, the promise was made by a person in authority. (police officers would qualify as persons in authority.) Finally, the promise was of such a character to likely influence the accused to speak untruthfully. (here's where the confession analogy breaks down somewhat)

As a general rule, the Texas cases on confessions stand for the premise that where a promise of leniency is exchanged for a confession, the resulting statement by the accused is not voluntary and inadmissible. Just like the cases on confessions, the literal language of the DIC-24 may be interpreted as a promise of leniency of less severe penalties if the suspect cooperates and provides a breath or blood sample to the police.

Next time we'll examine the need for the accused to rely upon the promise in the DIC-24 before voluntariness becomes an issue.