Can I Get Deferred Adjudication for a DWI in Texas?

Hello everyone. I’m Deandra Grant, and welcome to the Ask Deandra video series, where we answer the most commonly asked questions about DWIs in Texas. This video series corresponds with my Ask Deandra blog posts, which are on my website. If you look down in the description on this video, you should see a link to the corresponding blog on this topic.

Today’s topic is: can I get deferred adjudication on a DWI in Texas? The simple answer is yes, sometimes.

But let’s talk a little bit about what deferred adjudication is. Deferred adjudication in Texas is exactly what it sounds like. It means that the court is deferring the proceedings against you for some period of time. On a misdemeanor, that could be 3 months, 6 months, a year, 2 years. On a felony, it could be all the way up to 10 years. The court is not finding you guilty of whatever the crime is that you’re facing. They are saying, we’re going to let you go do a whole bunch of conditions of probation, and we’re going to make sure you don’t get arrested for any new crimes. If you do all of that successfully, the judge at the end of the term will enter no finding of guilt on that crime, whatever that crime is. There’s also a possibility, if you’re on deferred adjudication, that you can actually get off probation early, that you may be able to apply for the court to discharge you early from probation.

I will put a little asterisk by all that, because historically speaking, there were certain crimes that have been excluded from getting deferred adjudication, and one of them was DWI. It’s not the only one, there are some others, but you could not get deferred adjudication for DWI until 2019, when the legislature passed a new law allowing deferred adjudication for DWI in certain circumstances.

Let’s talk about what those mean. The circumstances would be: it’s your first offense, so you have no prior DWIs. Your alcohol concentration could not have been over a 0.15. In other words, it has to be a class B misdemeanor DWI. And you cannot have a CDL. You also cannot be involved in an accident that involves another person. If you’re driving a car and you get into an accident and you have a passenger in the car, even though they’re not injured, and you’re charged with misdemeanor DWI, you’re going to be banned from having deferred adjudication because you had that person in the car. Likewise, if you were in an accident and you hit a car that had someone in it, that also prevents you from getting deferred adjudication. If you got in an accident where you hit an empty car, or you hit a mailbox or something like that, then you could still be eligible for deferred, so long as you met the other requirements.

Obviously, if you have a second DWI, if you have an intoxication manslaughter, if you have a DWI with a child, any of those things, any sort of felony DWI, is not going to be eligible for deferred. It’s only first offenses that meet the other requirements.

So what does deferred mean? For purposes of DWI, it means you do all the same things that you would do under a normal misdemeanor DWI. You have to take the DWI education program, you have to do the victim impact panel by Mothers Against Drunk Driving, you’ve got to pay fines, and you’ve got to maybe have an interlock device on your car. One thing the statute says is that if you’re placed on deferred adjudication, you must have a deep lung device installed on your car as a condition, unless the judge waives it. When I say maybe: some judges require interlock on every single misdemeanor DWI deferred. Other judges, if you show them an alcohol evaluation that shows you’re not at risk to reoffend, and possibly some other mitigation, the judge might say, hey, you don’t need to have an interlock on your car. The statute says yes, but leaves open the opportunity for the judge to waive it, and many judges do, at least in the jurisdictions where we work commonly.

That all sounds great, and you’re probably thinking to yourself, wow, if I got a DWI, I would certainly want to try to get deferred adjudication if I was eligible for it. Well, that’s true, but there are a couple of issues with deferred for DWI. Those of us who are DWI defense practitioners, who focus on this area, we call it fake deferred, and here’s the reason.

Let’s take it away from DWI. Let’s say you were put on deferred adjudication for a theft case, a misdemeanor theft case. At the end of the probation term, you didn’t violate, the judge enters no finding of guilt for theft, and then that case is done, and there’s no conviction on your record. The law even says you can deny that it even happened. You can file for what’s called a petition for non-disclosure to try to seal your records. There are all kinds of benefits to being placed on probation that’s deferred on a crime like theft. If you got charged with theft again 5 years later, they couldn’t use that deferred adjudication theft that you had years ago against you to enhance your new theft to a higher level theft.

But with DWI, they specifically included in the statute in 2019 that if you get placed on deferred adjudication and you successfully complete it for DWI, you do not have a conviction for DWI. Sounds good, right? However, if you were to get another DWI, let’s say 2 years later, then they can use that prior deferred for enhancement purposes. So your new DWI charge would actually be a DWI second. And you think to yourself, well, wait a minute, I didn’t get convicted of that first one because I got put on deferred. Yes, it makes no sense. It doesn’t make any sense. You tell someone, hey, you’re not convicted of DWI, go and sin no more, and then you turn around, if they get another one, and say, well, we’re just going to bring it back up and use it as an enhancement. No, it doesn’t make any sense, but it was probably a compromise that the legislature made to get this bill passed, and so that is what it is. You always have to keep in mind: you think, I’m getting out of this without a conviction. Yes, but it could still be used against you in the future. So it is something to weigh when making a decision on how to dispose of the case.

The other caveat with deferred adjudication is that if you’re placed on straight probation, just a conviction probation, for any crime, then you receive a sentence in Texas. For example, let’s say the crime carries a maximum of 180 days in jail. That’s the maximum. You would get some period of time under 180 days, typically like 90, suspended for 12 months, and that would be your sentence. What that means is that if you violate your probation and come back before the court, the highest amount of time the judge could sentence you to in jail is that 90 days, because that was what you were originally sentenced to.

Now let’s talk about deferred. With deferred adjudication, there’s no cap except for what the statute allows. If you violate your first offense DWI deferred and come back in front of the judge, then rather than having, for example, that 90-day cap, the judge could sentence you to jail all the way up to 180 days. That’s the other double-edged sword with deferred: the judge can sentence you to the maximum jail term if you violate.

So you can see why there are pros and cons, and just having your attorney say to you, “Oh, they’re offering you deferred, you should take that,” well, you should talk about it. If your case is triable, and what I mean by that is you have some decent chance that you might win this case at trial, deferred may not be the best option for you. So definitely something to think about. Obviously, if you have a CDL, if you had a really high BAC, if you were in an accident that involved another person, then you’re not going to be eligible anyway.

Now, I will point out one little tricky thing. If your alcohol concentration is over a 0.15, the state could drop it, kick the blood alcohol or the breath alcohol away and say we’re not going to include that, knock your case back down to a class B, and offer you deferred adjudication as a plea bargain. If you’re charged with a class A DWI and the state offers to do that, that might be a really good deal for you. It just depends on your circumstances and what you’re trying to accomplish.

I know it’s a little complicated. It’s why it’s really important that when you hire an attorney in Texas on a DWI, they actually know what they’re doing, because there are just a lot of different factors going on, and you need to get good advice so that you can make the choice that’s right for you. I hope you find this helpful. If you want more information about deferred and DWIs, check out the blog post. Like I said, the link to it is included in the description, and we will see you guys next time.