DWI DYK (Driving While Intoxicated Did You Know) Part 1

I think DWI has to be the most often charged criminal offense in Texas. I know of no other crime that allows attorneys to become specialized in a single area of criminal defense other than DWI. There are some attorneys who practice solely DWI defense. That's it. I'm sure it's lucrative because there are just so many cases filed. However, with that prevalence I would think there would be more knowledge about the crime and its consequences than I have found exists. Maybe it's my the circumstances of my own practice where I deal with a large number of clients who are in federal custody. Those in custody often have more knowledge of "the law" than those on the outside. I've had some clients who have a unique and intimate knowledge of the Federal Sentencing Guidelines. And they've actually been right about a lot of it. Not all, but a lot.

Nonetheless, it seemed to me that with the regularity of DWIs being charged, there should be a resource for some basic and common things that everyone should know about this crime. Now don't worry, I'm not going to tell you how to beat a DWI. What I will tell you about are some nuances in Texas law that make DWIs a slightly different animal. If you've been arrested for DWI, you probably know already about some driver's license implications. As it turns out, this is only the beginning. So as a public service, I bring you DWI DYK.

The first DWI DYK has to do with Deferred Adjudication. Anyone that has been exposed to the criminal justice system probably knows what this is. Although I've heard numerous other names for it (Preferred Adjudifimication being my favorite) it essentially offers someone the opportunity to avoid a criminal conviction. Deferred Adjudication is probation. Make no mistake about it. All of the standard probation conditions apply to Deferred Adjudication. However, the difference is that unlike what is known as "Straight Probation" is that the judge actually defers his finding of guilt at the guilty plea. At that time, the judge places the defendant on a period of probation. Provided the defendant can successfully complete his probation, he will avoid a criminal conviction.

There are a number of factors and permutations that accompany Deferred Adjudication. These are beyond the scope of this post. This post is centered on DWI and the availability of Deferred Adjudication in such a case. This is very simple. There is none.

The Texas Code of Criminal Procedure Article 42.12, Section 5(d)(1)(A) specifically excludes DWI-related cases from the availability of Deferred Adjudication. "(d) In all other cases, the judge may grant deferred adjudication unless: (1) the defendant is charged with an offense: (A) under Section 49.04 - 49.08, Penal Code;" Penal Code Sections 49.04 to 49.08 are the DWI statutes in Texas. They include DWI (49.04), DWI with a Child Passenger (49.045), Flying While Intoxicated (49.05), Boating While Intoxicated (49.06), Assembling or Operating an Amusement Ride While Intoxicated (49.065), Intoxication Assault (49.07), and Intoxication Manslaughter (49.08).

The moral of this story is that if you plead guilty to DWI or any of the other DWI statutes, you cannot get deferred adjudication. You will have a conviction. Keep this in mind when choosing an attorney. If your attorney tells you Deferred is an option, you need another attorney. If you want to try to keep a conviction off of your record, you will almost certainly need to go to trial. If your attorney doesn't go to trial, he shouldn't be your attorney.