DWI Expunction Update

Happy Friday, everybody. I hope everybody out there is staying safe, but still being productive. As we continue to get through this pandemic of COVID-19 and work remotely, I wanted to reach out to you and give you a little update on a change in the case law that just recently happened, that will affect anybody out there that handles a decent amount of DWI cases. And specifically, this is an appellate case out of the Houston court of appeals, the first district, it was just decided on the 20th of February of this year. And the name of the case is IN RE M.T.R And I’ll put the Westlaw citation down here at the bottom right now, so that all of you can look it up.

What this case is, is it was a DWI second. The person, the defendant MTR had been convicted of a boating while intoxicated some years back. I believe it was back in 2012 was his first conviction. Then in 2017, he picks up a DWI and they charge it as a DWI second, which is perfectly normal. Case goes to trial, the jury acquits him of the DWI second, right? So far so good. The petitioner or the defendant at that point, then files a petition for expunction of the DWI second offense, saying I was acquitted pursuant to the expunction statute. I should have any and all records of this incident scrapped from my record. Absolutely, right?

Where this case gets interesting is the DPS objected to the expunction and said, “He’s technically not entitled to the expunction because of subsection C of the expunction statute, which says that you are not allowed to get an expunction, you’re not entitled to an expunction. If what you’re expunging is part of the same criminal episode as a valid conviction.”

The argument is that the 2012 case and the 2017 case are actually part of the same criminal episode. That’s the argument that the DPS made. And unfortunately, that’s the argument that the Houston court of appeals agreed with. They actually said that in the penal code section 3.01, which defines same criminal episode, it doesn’t spell out that there are any limitations on geographic distance or time when two things can be a part of the same episode. And they say that since they’re the same or similar offenses that that qualifies. And therefore, even though he was acquitted of the second offense, he’s not entitled to get it expunged because it was part of the same criminal episode as the valid conviction that occurred back in 2012.

It is a incredibly bizarre ruling in my opinion. I’ve got a case right now where I’m fighting this exact fight, where I took a client’s case to trial on a DWI second offense. Jury found him not guilty. His first offense was way back in 2007. So some 11 or 12 years before this offense occurred, or allegedly occurred. And yet, when we filed the petition for expunction, the Collin County district attorney agreed to it. The order was signed. The DPS lawyers filed a motion for new trial, arguing the logic and IN RE M.T.R, saying that the expunction was invalidly given, that my client should not have been eligible for an expunction because there is an underlying offense that DWI first from way back in 2007 and this new case, even though he was acquitted of it, is still a part of that same criminal episode. And therefore, you can’t expunge part of the episode when at least a part was validly convicted.

So we have a hearing set for next week on that issue on the motion for new trial, as it were in Collin County. We’ll see what the judge does with that, the district court judge does with that motion. Regardless, I’m going to continue to fight this all the way up as high as I can, because I do completely disagree with the way that the district, or the appellate court in Houston came down, but it’s something we’ll keep an eye on. It’s something that I’m sure is going to be challenged very often, and very soon.

I’d be surprised if the MTR case isn’t working its way up to the Supreme court now, because it is such a unique interpretation of a very long standing statute, that same criminal episode statute.

So, if you have any questions about that or any insights or anything that you’d just like to add, please feel free, drop me an email. I’d love to chat with you about it and kind of pick your brain, just like I’d love to bounce some ideas off you. I’m always here for that. So, feel free to reach out to us. We’re willing to enable to talk and answer any questions that you guys have. And if you run into the same issue with DPS, please let me know. I’m always interested to hear.

Hope everybody out there has a wonderful weekend, stay safe and we’ll see you all next week.