DWI Expunctions Update – Part 2

Happy Friday everybody. Hope everybody is doing well this week as we continue to work from home here. I wanted to give you a quick update.

Those of you who have watched some of my videos in the past know that there is this interesting new case law that just came out recently regarding expunctions for second time DWIs in the state of Texas. We had a hearing on that motion just today in front of Judge Roach at the 296th Judicial District Court of Collin County, Texas. Judge Roach actually sided with me and decided that he was going to deny DPS’s motion for new trial.

What that means is, for my client at least, the expunction that he was given on his acquittal of a DWI second, stands for now. Now, we are under the understanding that DPS is going to appeal that decision. So they will be filing their notice of appeal to the Fifth Circuit Court of Appeals there in Dallas. My understanding is there are several other cases that are currently up on appeal on this exact same issue.

I’m currently working on trying to get some of these citations for some of those other cases so I can look into them, see what the status of those are, where they are, when a timeline might be for some of them to be decided. As we talked about last time, there are a couple of cases, I believe two or three, that have already been decided. One is that M. Ray MTR case that I gave you the cite for last time. Another is ex parte Rios. That one is out of San Antonio back from 2019.

A couple of cases have been decided on this issue, but certainly there is a lot more litigation that’s going to happen, a lot more court action that needs to be taken before this issue is decided for its final time. We’ll see. We’ll keep track of that. I’ll keep you updated as to the progress of this case, and other cases like this, for those of you who do DWI work and have a client out there with a DWI second who’s been acquitted of it trying to get it expunged from their record. I think it’s a really big issue. It’s an interesting appellate issue, and we’ll have to see how it shakes out.

Going through this also reminded me of another part of the expunction law that a lot of people just don’t know about. Most people that practice law in the state of Texas, especially criminal law, are familiar with what an expunction is, and what it does, and why it’s so important. It is a way that if somebody is either acquitted at trial, or the case is dismissed, or they resolve it in a way that allows them to get an expunction, it wipes the slate clean. It’s a fresh start. It removes the arrest record. It takes away all court records of the incident. So when they go through a background check, or when they’re filling out a loan application or a leasing application, that doesn’t pop up and cause issues.

A lot of people don’t realize that on the federal side, there is no expunction statute. What that means is, if you’re charged with a federal crime and you’re indicted federally, and then go through that whole process, even if you go to trial and are found not guilty, that arrest record, that federal indictment, all of those court records that are public documents, will be there forever. They will never go away. There’s no way to get rid of that. You will forever be an individual that was at one point charged with a federal-level offense.

It’s frustrating and it’s something that, hopefully in the future, legislature takes a good long look at and decides to make the change to allow for those expunctions to happen. But as of right now, it is not something that exists on the federal side.

Where that becomes important is we represent clients all the time that are… they have not been charged with a federal crime, but they’re under federal investigation. They have received either a target letter, or they’ve received a call from an agency like the DEA or the ATF or the FBI, and they have questions for them. It’s important that that person gets a criminal offense lawyer right away, don’t wait and see what happens. A lot of clients want to, “Let’s just wait and see. Maybe they won’t do anything.”

If you wait and they indict you, even if it’s a wrongful indictment, there’s nothing that can be done to get that record removed from your criminal history. If you get a lawyer involved right away, there are resolution options such as pre-trial diversion on the federal side, or pleaing to informations for a misdemeanor, stuff like that, that we can mitigate that damage if we can act quickly.

It’s important that if you or anyone you know is under investigation for a federal-level offense, or they’ve been asked questions by a federal agency, call us immediately because there might be something that we, or somebody like us, can do to help that. If you wait too long that window is going to close on you.

We’ll keep you updated on the DWI issue. If you have any questions about that or if you just want to reach out and chat about it some, I’m always welcome. I’m always here willing to take your emails and phone calls. So reach out, love to talk to you about it. Hope everybody is having a great week and we will see you next Friday.

Author Bio

James P. Whalen

James P. Whalen is the managing attorney and founder of Whalen Law Office, a Texas criminal defense firm offering personalized legal representation for various federal criminal charges. With a commitment to providing comfort and guidance during challenging times, Mr. Whalen serves as both an attorney and counselor to his clients, helping them navigate their cases while striving to restore normalcy to their lives.

In an inherently unbalanced criminal justice system, Mr. Whalen takes on cases with unwavering dedication. With decades of legal experience, he offers representation across various criminal charges, including white-collar crimes, violent crimes, drug charges, and more. Mr. Whalen’s numerous accolades, including Super Lawyer recognition and board certification in Criminal Appellate Law and Criminal Law, reflect his unwavering commitment to ethical and high-quality legal representation.

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