Monthly Archives:' December 2013

Waiting Periods on Misdemeanor Non-Disclosures

If you read my older blog entry on Non-Disclosures, you know that a non-disclosure is a type of sealing of a record for an adult who successfully completed Deferred Adjudication.  On a deferred adjudication the case is dismissed upon completion, there is never a conviction, and the arrest record can be partially non-disclosed to the general public (but not the government or law enforcement). 

The reason you need a non-disclosure is because if someone does a background check on you they will be able to see that you pled guilty, were giving deferred adjudication, and your case was dismissed.  The problem with that is that anyone who knows anything about the law is going to know that you pled guilty, and that the case was only dismissed because you did probation.  This can be a problem when you are applying for jobs, schools, apartments, etc.  So Non-Disclosures are very important for your record.  The problem is the rules are confusing.

I get a lot of calls about Non-Disclosures and what the waiting periods are before you are eligible to proceed.  On a felony case, if your case is eligible, you have to wait 5 years after you finish your deferred adjudication.  You will be eligible after the 5 years as long as you have not been convicted of another crime before you file your petition for non-disclosure.

Misdemeanors are a little different.  Some misdemeanors are eligible immediately, meaning you can try to get a non-disclosure the day after your deferred adjudication completion is official.  But there are other cases that you are not eligible to file your petition until 2 years after the day that your case gets dismissed.

There are the cases the misdemeanor charges that carry a 2 year waiting period before you can get a non-disclosure:

  • Abuse of Corpse
  • Advertising for placement of child
  • Aiding suicide
  • Assault
  • Bigamy
  • Cruelty to Animals
  • Deadly Conduct
  • Destruction of Flag
  • Discharge of Firearm
  • Disorderly Conduct
  • Disrupting meeting or procession
  • Dog Fighting
  • False Alarm or Report
  • Harassment
  • Harboring runaway child
  • Hoax Bombs
  • Indecent Exposure
  • Interference with Emergency Telephone Call
  • Leaving a Child in a Vehicle
  • Making a Firearm Accessible to a Child
  • Obstructing Highway or Other Passageway
  • Possession, Manufacture, Transport, Repair, or Sale of Switchblade Knife or Knuckles
  • Public Lewdness
  • Riot
  • Silent or Abusive Calls to 911 Service
  • Terroristic Threat
  • Unlawful Carrying of a Weapon
  • Unlawful Possession of Firearm
  • Unlawful restraint
  • Unlawful transfer of certain weapons
  • Violation of protective order preventing offense caused by bias or prejudice 

So if you were charged with any of these crimes you are not allowed to apply for the non-disclosure for 2 years.  If your crime is not listed then it is immediately eligible (unless it’s one of the types of crimes that is never eligible – see my past blog on non-disclosures for a list of those).

If after reading this you are still confused, please feel free to give me a call and I will give you a more personal consultation.

Understanding Alcohol Intoxication

Intoxication is defined the same in either a Driving While Intoxicated (DWI) or Public Intoxication (PI) case in Texas.  I had a very interesting situation that came up recently.  I had a client who had been arrested for DWI.  He was leaving the bar late at night with some friends and while driving home late at night one of his friends got sick.  The friend had a little too much to drink and needed to throw up.  My client who was driving, pulled over on the highway to let his friend handle his business.  Within a couple of minutes an officer pulled in behind them to see if they needed any help.  When they smelled alcohol and saw some guy puking they decided to conduct a DWI investigation on my client.

They went through the normal standard field sobriety tests (Horizontal Gaze Nystagmus, One Leg Stand, Walk and Turn) and determined that my client was intoxicated.  He was arrested for DWI and taken to the station.  At the station they asked him to submit to a breath test to which my client agreed.  He took the test and blew a .04, well below the legal limit in Texas.

Now if you have any common sense, this just doesn’t seem right.  At the end of the day the definition of intoxication is the same for both DWI and PI. What happened next was interesting.  Officers usually get people to take breath tests by saying, “If you blow under the legal limit you are free to go”.  Well in this case I think the officers were either embarrassed or upset, so they decided to charge him with Public Intoxication.

Per the Texas Penal CodeIntoxicated means:

(A)  not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body;  or

(B)  having an alcohol concentration of 0.08 or more.

Intoxication and the Alcohol Legal Limit

So you are intoxicated in Texas if you lose your physical faculties, lose your mental faculties, or if your alcohol concentration is .08 or more.  My client was not intoxicated by law in Texas, but somehow the officers thought it was ok to charge him with a “small” misdemeanor because it wasn’t that “serious”.

Lucky the prosecutor understood the law and dismissed this case after the first hearing.  It’s sad that my client had to waste time and money, but justice prevailed.