I have been reading your blog and The Wretched of the Earth’s (by Poverty Lawyer 1) blog and I find both blogs very informative, easy to understand, and written by competent and organized minds! You have both had articles that taught me things about my case that I need to be concerned about. (Thank you for the complement.)
Summary of My Questions:
1) I got arrested for DWLS recently. I want this arrest, fingerprints, mugshots, etc. removed from all government databases. Does License Suspensions and Revocations Article 55.06–Texas Code of Criminal Procedure mean that there is no way for me to get this expunged, no matter what happens?
No. If you are acquitted, or your case is dismissed you will be entitled to expunge the arrest. (Since jury trials in DWLS cases are extremely rare, it’s more likely that the case would be reduced to a Class C traffic ticket, e.g. for whatever you were stopped for in the first place, or that the case would be dismissed outright, say in return for getting your license back in order, than to be acquitted.)
The section you are reading applies to folks who have their license suspended for DWI through the ALR process, but then have their criminal DWI case dismissed. In that scenario, the law allows you to erase the DWI arrest, but not the license suspension from your record.
2) If it is possible to get an expunction, how do I do it?
Assuming you qualify, you will need to file a petition to expunge the arrest and include all the government agencies that have those records in your petition. There are, of course, more steps after that. Frankly, you really need a lawyer to do this correctly. I’ll ask you to believe me, despite my possible “hire a lawyer” bias.
3) If I get a dismissal, I don’t want any possibility that the case can be refiled. Is there any way to ensure that? Like by asking for a dismissal with prejudice?
Dismissals granted during the initial two year statute of limitations for misdemeanors are rarely granted “with prejudice”, meaning in theory the State is free to refile them. However, dismissals in most criminal cases are going to be by way of negotiated agreement. Therefore, the State rarely refiles cases that they have agreed to dismiss.
BACKGROUND: I was arrested in Travis County recently for Driving While License Suspended. I would guess you are familiar with this growing problem where people get convicted of not having insurance, then don’t get the notice of the DPS surcharge, therefore don’t pay it, and are suddenly arrested for DWLS. That’s exactly what happened to me. There are more details that make this situation more of an injustice, but I will leave them out since I don’t think they are relevant to my questions.
I am very familiar with this situation. In fact, to quote myself from another post on the subject, “…my guess is that at least half of my clients who come to see me for a driving while license suspended arrest didn’t know that their license was suspended.” This is, not coincidentally, what provides the basis for the defense in most DWLS cases, and therefore leads to a negotiated dismissal.