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Legal Effects of H.B. No. 189 and Deferred Adjudication for DWI

Should House Bill No. 189 be enacted into law, it will go into effect on September 1, 2011. If the bill’s current draft were not changed, first time DWI offenders will be able to receive deferred adjudication community supervision and avoid a conviction for DWI. However, H.B. No. 189 proposes other significant changes to DWI related statutes that must be considered by lawyers and defendants before accepting a plea for deferred adjudication. The proposed bill seeks to amend the Code of Criminal Procedure, the Penal Code and the Government Code.

The Code of Criminal Procedure designates which offenses are eligible for deferred adjudication in Article 42.12 § 5. Under current Texas law, 42.12 § 5(d) specifically excludes DWI offenses from eligibility. As drafted, H.B. No. 189 seeks to amend 42.12 § 5(d) to make Driving While Intoxicated (Penal Code § 49.04), Flying While Intoxicated (Penal Code § 49.05), Boating While Intoxicated (Penal Code § 49.06) and Assembling or Operating an Amusement Ride While Intoxicated (Penal Code § 49.065) offenses eligible for deferred adjudication.

The Government Code authorizes people who have completed deferred adjudication in Texas to have their criminal record sealed by obtaining an Order of Nondisclosure in Article 411.081. Certain offenses are specifically excluded and made ineligible for Nondisclosure. As drafted, H.B. No. 189 seeks to amend 411.081(e) to exclude the DWI related offenses mentioned above from eligibility of Nondisclosure. Defendants who complete deferred adjudication under the proposed bill would not be able to seal the record of their DWI arrest or plea.

The Penal Code defines criminal offenses, designates penalties, and allows for enhancement of penalties under Texas law. Chapter 49 of the Penal Code is titled “Intoxication & Alcoholic Beverage Offenses.” H.B. No. 189 seeks to amend sections (b) and (g) of Article 49.09. Section (g) deals with enhancement of DWI offenses. For purposes of this discussion, a DWI may be enhanced to a higher offense level based only on a prior conviction. (DWI related offenses such as DWI w/ a Child Passenger, Intoxication Assault and Intoxication Manslaughter are not eligible for deferred adjudication and are not included in H.B. No. 189) The proposed bill expands the definition of a conviction for enhancement purposes to include deferred adjudication. For example, a person granted deferred adjudication for a DWI 1st will be enhanced to a DWI 2nd for a subsequent offense under H.B. No. 189.

* H.B. No. 189 seeks to amend Article 49.09(b) to include § 49.045 (Driving While Intoxicated with Child Passenger). The bill does not intend to make this section eligible for deferred adjudication. For more information about how this bill may affect a San Antonio DWI you can contact Kyle Simpson (210) 224-4242.

Posted on July 28, 2013 in Articles

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