Deferred Adjudication for DWI

I couldn't tell from the highly flattering front page photo in the Statesman of Rep. Todd Smith (Texas House District 92) whether he was old enough to remember the last time persons charged with driving while intoxicated were eligible to receive deferred adjudication.  The Legislature did away with it on January 1, 1984.  My recollection is that the powers that be figured out that DWI was too serious to let some avoid a conviction.  Deferred adjudication (not "deferred ajudification", which seems to have infected the lexicon) is a provision whereby the judge finds sufficient evidence of guilt but withholds finding the defendant "guilty". The case is ultimately ordered "dismissed" upon successful completion of the deferred adjudication.

Well times certainly have changed haven't they. Now, MADD likes it. John Bradley, the influential Williamson County DA is in favor of it along with the Statesman's editorial board. What up with that? According to the Statesman's Claudia Grisales, it looks like the bill  will pass. How did we get from here to there and back again? Expediency.

122,000 pending DWI's statewide. A jury trial for each one of them? That won't happen. They'd be trying DWI's until sometime in 2020. So dust off the deferred adjudication provision in the Code of Criminal Procedure. This won't make a dent in the backlog. For one thing, deferred adjudication boasts a non-existent benefit of not counting as a conviction. However, everyone knows you've been arrested for DWI; you cannot expunge a deferred adjudication. Dollars to donuts the non-disclosure law will not apply to DWI. (I wrote this before I actually read the proposed applicable provision of the non-disclosure law; sure enough no non-disclosure for DWI's).

So with deferred adjudication on the books for DWI I'm going to tell my clients, "It's not technically a conviction. However, it's still on your record, you won't be able to expunge it. You won't be able to get an order of non-disclosure. Your employer will be able to see it along with anyone else". Well that sounds attractive doesn't it?

You want to make some inroad upon the number of pending DWI's. Do what a number of counties do informally. Use pretrial diversion-a contractual agreement between the defendant and the prosecution that results in a dismissal. The defendant completes counseling, community service and other specified conditions and his case gets dismissed. I've never turned one down. And if you're worried about the almighty precious criminal record, make the defendant agree not to pursue an expunction. I think that's a disincentive but I still think it will reduce the caseload. You could trust your prosecutors to use it as needed. On the other hand if you're convinced that DWI is the worst offense in the Texas Penal Code you could increase the number of courts and prosecutors. You could put your money where your mouth is instead of rejiggering the system with a worn out provision that, I predict, will be scrapped because it didn't do what the proponents expected. 

Comments (3)

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Beverly Lanfear - January 4, 2011 11:03 AM

On October 10th 2006 the United States Supreme Court ruled on a case pertaining to deferred adjudication in Texas. United States Supreme Court Case No. 05–10671 raises the question whether a Texas order of “deferred adjudication probation” is a “judgment” under the statute. Given the case cited; See Davis v. State, 968 S. W. 2d 368, 371 (Tex. Crim. App. 1998) clearly confirms deferred adjudication is not a judgment.

Below I give you two examples; I see no difference between the two.

Example (1). You have a person who is misidentified out of a photo lineup, they are arrested and charged with the crime. A trial is set; a few short weeks before the trial the real perpetrator is caught. The person who was misidentified is discharged from the crime; reason or reasons being lack of evidence or whatever the given reason is stated.

Example (2). A person who takes deferred adjudication: After they successfully complete his or her probation, the judge signs a form dismissing the case discharging the person from all penalties and disabilities for which he or she was arrested. Therefore the verdict is set aside dismissing the accusation, complaint, information or indictment against the defendant.

Taking everything into consideration above: Is there a difference and where does that difference fall in? No judgment has been made in either case, the indictment has been dismissed discharging from ALL penalties and disqualifications.

How can it be deemed a conviction or for inhancement purposes after a person successfully completes their probation and release from all disqualifications and penalties, case dismissed?

Erik Goodman - January 5, 2011 2:54 PM

Ms. Lanfear:
Unfortunately, under Texas law a distinction exists between a dismissal and a “dismissal” due to a completion of a deferred adjudication. There are many instances of different treatment. For example, you cannot expunge a completed deferred adjudication. The appropriate remedy would be an order of non-disclosure. Even then, certain offenses are exempt from non-disclosure. (The proposed bill referred to in my post exempts DWI from non-disclosure). Section 5(c)(1) of Article 42.12 Tex. Code Crim. Proc. also permits use of a completed deferred adjudication in the penalty phase of a criminal trial. There are numerous other instances in which a completed deferred adjudication may be used to the disadvantage of the defendant.

Beverly Lanfear - January 6, 2011 4:26 AM

Mr. Goodman thank you so much for your response and clearing up my confusion. I see where the difference come's in now. Again, your response is highly appreciated.