Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

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.

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From the Statesman’s online Blotter, DPS Reminder: Update Your Driver’s License Address:

The DPS wants to remind you to make one more New Year’s resolution - update the address on your driver license. Keeping a current address on your license provides DPS with the ability to communicate important information to you regarding your driver license. Plus, updating your driver license address is important because it’s the law.

That’s true; it’s actually a Class C misdemeanor in Texas to drive longer than 30 days without updating your address with DPS. But the article goes on to explain a better reason, perhaps, as well:

Another reason it is important for you to keep your address current is so that DPS can notify you if your license is suspended or revoked. If your address is not current, you may not receive this notification. If you are stopped for any reason and found to be driving on a suspended license, you can be arrested.

Licenses are often suspended or revoked for driving with no insurance, driving while intoxicated, for failing to appear in court for a citation or for failure to comply with the requirements of the Driver Responsibility Program.

The Department of Public Safety sends folks a notice of cancellation and/or suspension to the address they currently have on file – after all, where else could they send it? But very often these notices aren’t received because the person never updated their address with DPS.

I’ve never done a scientific study of the problem, nor have I kept an Excel spreadsheet of all my Austin DWLS clients, and the various reasons they were suspended. But 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.

Of course, that usually means I have a pretty good defense to put forward on behalf of my client, but wouldn’t you rather not be arrested in the first place?

[Update: here's a printable change of address form to mail in to DPS, and here's the place to change your address online.]

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§ 521.457. Driving While license Invalid (Suspended)

(a) A person commits an offense if the person operates a motor vehicle on a highway:

(1) after the person's driver's license has been canceled under this chapter if the person does not have a license that was subsequently issued under this chapter;

(2) during a period that the person's driver's license or privilege is suspended or revoked under any law of this state;

(3) while the person's driver's license is expired if the license expired during a period of suspension; or

(4) after renewal of the person's driver's license has been denied under any law of this state, if the person does not have a driver's license subsequently issued under this chapter.

(b) A person commits an offense if the person is the subject of an order issued under any law of this state that prohibits the person from obtaining a driver's license and the person operates a motor vehicle on a highway.

(c) It is not a defense to prosecution under this section that the person did not receive actual notice of a suspension imposed as a result of a conviction for an offense under Section 521.341.

(d) Except as provided by Subsection (c), it is an affirmative defense to prosecution of an offense, other than an offense under Section 521.341, that the person did not receive actual notice of a cancellation, suspension, revocation, or prohibition order relating to the person's license. For purposes of this section, actual notice is presumed if the notice was mailed in accordance with law.

(e) Except as provided by Subsection (f), an offense under this section is a misdemeanor punishable by:

(1) a fine of not less than $100 or more than $500; and

(2) confinement in county jail for a term of not less than 72 hours or more than six months.

(f) If it is shown on the trial of an offense under this section that the person has previously been convicted of an offense under this section or an offense under Section 601.371(a), as that law existed before September 1, 2003, the offense is a Class A misdemeanor.

(g) For purposes of this section, a conviction for an offense that involves operation of a motor vehicle after August 31, 1987, is a final conviction, regardless of whether the sentence for the conviction is probated.

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