How Can An Attorney Get A DWI Charge Dismissed?

There are two different routes that I would break out in talking about ways that a charge can get dismissed. The first route is going to be with the consent of the prosecutor, and the second route is going to be if they won’t agree to it. I’ll talk about the first one first, with the consent of the prosecutor. In order to do this we are going to have to get them to agree to dismiss the DWI. Many people walk into my office and say I want this charge dismissed outright and the first thing that I have to tell them is that in Travis County, the prosecutors are almost inevitably not going to dismiss the charge outright, and those who want it completely gone and not to have some type of middle ground resolution that it’s going to have to be a trial and we are going to have to litigate the case. I’m going to talk about that in the second part but the prosecutors may be willing to reduce the case.

When I say reduce the case what I mean is that they will agree to dismiss the DWI and they would then give you a lesser charge instead, what’s called an obstruction of the highway or reckless driving. The reason that we would try for an obstruction of a highway is that DWI is one of two offenses in Texas for which you cannot receive “no conviction probation” which is otherwise known as deferred adjudication probation, meaning that any type of resolution on the DWI itself would result in a conviction that would remain on your record forever. So that’s why we try for this obstruction of a highway charge. You may ask yourself, what exactly is obstruction of a highway? Obstruction of a highway is a completely unrelated non-DWI charge. It’s a Class B misdemeanor as well which is punishable by up to 180 days and a $2000 fine.

Technically it’s an anti-rioting statute from the ‘70’s that says if you were blocking an emergency vehicle—nobody gets charged with obstructing a highway. Some people do, I’ve seen a total of two in my career but the vast majority of people who have an obstruction of a highway charge, it’s because it was reduced down from a DWI charge. On an obstruction of a highway charge, you can get deferred adjudication probation, and that means that we can get it sealed, which means that only prosecutors and law enforcement can see it, if you are successful in completing the probation. Actually, you can also get the underlying DWI charge, which would have been dismissed as part of this deal, sealed as well. So that’s one of the ways a DWI can get dismissed with the consent of the prosecutors. Let’s talk about reckless driving.

Mothers Against Drunk Driving recognized what people were doing with obstruction of a highway. They got to the legislature and got them to agree to make it so that you had to wait two years from the date of your discharge from your obstruction of the highway probation before you could get it sealed. One of the reasons we go for reckless driving, which may sound to some people like a worse charge, is that reckless driving allows you to get it sealed immediately upon successful completion of probation. Actually, if you look at the punishment range on reckless driving, the maximum amount of jail time that you can receive on a reckless driving is not 180 days but it’s 30 days and the maximum fine is not $2000, its $200. Reckless driving is kind of a hybrid between a Class C ticket and a Class B misdemeanor even though technically it is a Class B misdemeanor.

So that’s why we will try for reckless driving, because it’s a better resolution than obstructing a highway. Next, in terms of better resolutions, even better than either of those would be a Class C ticket, some type of a moving violation; speeding, or failure to signal intent for lane change, or something like that. A Class C ticket can have one of two types of resolutions. It would either be a final meaning that you would be convicted of the ticket and you would have to pay a fine. You could get credit for any time that you were in jail towards paying that fine, so it’s not necessary to pay the whole thing but the ticket is on your record for life. It’s a conviction and because you took a conviction for something other than a DWI charge out of the same incident, even though the DWI charge would be dismissed as well, you would never be able to get that DWI arrest expunged from your record.

Going back to the 2 previous charges that I talked about, obstruction of a highway and reckless driving, if you got one of those and got probation you wouldn’t be able to get the DWI charge expunged or fully erased either. You would potentially, if you got deferred adjudication, be able to get that charge sealed. Going back to the Class C, if you’ve got a final conviction, you cannot get that expunged or sealed. However, if you get a deferred disposition on the Class C ticket, you pay the full fine and court costs, typically a $200 fine and court costs equaling $75. If you’ve got a deferred disposition, you’d have to stay out of trouble for anywhere between 3 and 6 months, meaning no new arrests or new tickets, and if you did that, the Class C ticket would be dismissed as well in addition to the DWI charge having been dismissed, and after the statute of limitations, 2 years ran on the DWI charge, you would be eligible to get the entire incident including the Class C ticket expunged, or fully erased, from your record.

Those are some of the best resolutions that we can hope for but they are certainly ones that are difficult to get, but ultimately it depends on the facts of your case. There is another resolution that we can sometimes get the prosecutors to agree to. It’s called a deferred prosecution. It’s a 7 page contractual agreement between you and them which states that you are going to stay out of trouble for a period of one to two years, keep an ignition interlock device in your vehicle and admit that you committed the offense of driving while intoxicated and agree to plead no contest if the charge comes back. In exchange, you get the case dismissed upfront. It’s kind of an informal probation where you don’t pay any fine, you don’t report to your probation officer, you don’t pay court costs, and if you are successful on it you can get that charge expunged as well. If you are not successful, meaning you don’t go to counseling, you mess up on the interlock device, or if you do get re-arrested then they will re-file the charge and go back to square one.

Those are the ways that prosecutors might agree to resolve the case and have it be dismissed but if they don’t agree, we have to go another route. The first thing we would do is set the case for a pre-trial suppression hearing and at that hearing we would argue that there was not reasonable suspicion to detain you, or ultimately probable cause to arrest you, or there were certain problems with the case which would result in the evidence being tossed out. When the evidence is tossed out for any one of those reasons, then the prosecutors don’t have sufficient evidence to move forward and typically they will dismiss the case. The prosecutors may have an opportunity to appeal such an order but the case would, if you win on appeal, ultimately be dismissed. If you lose at the pre-trial setting, it’s not the end of the road there either. At that point we would set the case for trial and at trial you would either be found guilty, or you could be found not guilty. If you are found guilty, you will then have an opportunity to appeal an adverse ruling from the suppression hearing.

If you are found not guilty, it’s not a dismissal, but frankly it’s better than a dismissal because when I was talking about the expunction earlier, we have to wait the statute of limitations for any one of those outcomes, but if you do get found not guilty at trial, you are entitled to a free and immediate expunction of the arrest, and I would say that’s certainly better than a dismissal, even if it is a high risk situation, because the only other option at trial is that you be found guilty. So those are the ways that a case can ultimately get dismissed and hopefully sealed or erased from your record.

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