- My lawyer said I wouldn't have a record if I took a deferred adjudication, but it still shows up...what gives???
First, deferred adjudication (DADJ) is a form of probation, which in most situations is not considered a conviction. That does not mean that you have no "record". The fact that you have been charged, entered a plea, and been placed on probation will be in the public records. You may have the option to have the records sealed (not expunged) after successfully completing the probation, depending on your record and the offense. DADJ is not available in DWIs, therefore, even a probation for DWI is considered a conviction and cannot be sealed or expunged. You can ask for a "Nondisclosure Order" after successfully completing a DADJ in most cases, which will effectively "seal" the records from the public, while still keeping the info available to law enforcement and governmental agencies. Our office can handle a request for a nondisclosure order at the appropriate time.
The following offenses may not be sealed even if you successfully complete a DADJ: family violence cases, any registerable sex offense, aggravated kidnapping, murder, injury to a child or elderly person, child endangerment or abandonment, violation of a protective order, or stalking. In fact, if you have EVER been convicted of or received a DADJ for any of the above-listed offenses, you may not have ANY offense sealed. Any family violence case, even when deferred, will bar you from ever possessing or owning a firearm.
All eligible felony offenses require a 5‑year waiting period (from the end of the probation) before the records can be sealed.
The following misdemeanors require a 2-year wait: unlawful restraint, public lewdness/indecent exposure, abuse of 911, deadly conduct, terroristic threat, cruelty to animals, all weapons cases, riot, enticing a child/harboring a runaway, false alarm, assault (except family violence, which can't be sealed), disrupting a meeting, harassment, abuse of a corpse, bigamy, bomb cases, Class B disorderly conduct, and obstructing a highway.
During the 2- and 5-year wait, if applicable, you may not have any convictions or DADJs for anything other than a fine-only traffic offense.
In summary, you will not have a record of CONVICTION if you successfully complete a DADJ, but unless the records are sealed, the information about the charges, plea entered, and punishment will be public record. back to top
- What is the difference between expunction and non-disclosure?
Basically, getting an expunction granted erases the existence of an arrest. The fingerprints and mugshots are destroyed, and all references to the arrest and charges are deleted from the various government computers. It's as though it never happened (except for an issue of whether the Feds recognize a State expunction order); the defendant can deny that he or she was ever even arrested (with a very limited exception regarding testifying under oath in a court proceeding). That's the good news.
The bad news is in order to be eligible for an expunction the case must have been outright dismissed, meaning NO probation and NO deferred adjudication were completed. Also, if it was a felony case that was indicted, there are more limitations and exclusions for eligibility. In many cases, you have to wait for several years for the statute of limitations to run out before you can petition the court to have the records expunged. However, if you get an acquittal at trial, you can ask for an automatic "short-form" expunction.
In any event, if you have an old case that was dismissed outright or you were found not guilty after a trial, you should consult your attorney about the possibility of filing for an expunction. Even dismissed charges sometimes come back to haunt you when looking for a job or housing or if you get into trouble again in the future.
Non-disclosure is a different matter. If you have a case "non-disclosed" it gives a person who has successfully completed a deferred adjudication (with many exceptions, including family violence and sex crimes) the ability to have the records sealed from disclosure to non-governmental entities. Some types of misdemeanor cases are immediately eligible to petition the court for a non-disclosure upon completion of deferred adjudication probation. Other misdemeanors and all felonies require a waiting period with no new convictions or probations before obtaining a non-disclosure order. Non-disclosures are also at the discretion of the Judge that granted the probation. A non-disclosure order doesn't "erase" an arrest or the records relating to the probation, but it does substantially limit the general public, including landlords and employers, from accessing the information. Consult with an attorney about the specific qualifications regarding non-disclosures. back to top
- The police are on the phone...what do I do??!!??
First, calm down. Are you a witness or a suspect? If you're really just a witness and plan on telling them the truth, go for it. If you may be a suspect, you really need to speak with a criminal attorney before speaking to the police at all.
There are several things to consider:
1. DO NOT LIE to the police. It is okay not to speak to them at all, but if you lie you are getting yourself into a much bigger problem. If the absolute truth won't "set you free," forget about talking to them at this point.
2. The police will treat you differently if you go in without an attorney. They will try every tactic in the book to get you to talk. They will imply that you don't need an attorney, that you must be guilty if you want to speak to an attorney, and that things will go easier on you if you just talk to them. WRONG!! The only one that it will go easier for is the police officer after he bullies you into signing a statement.
3. The police officer has absolutely no authority to promise you anything. The only person that can "make a deal" with you is the prosecuting attorney, who is likely not even involved at this point.
4. If it is, in fact, in your best interest to admit to some wrongdoing and assist with the investigation, PLEASE wait and let an attorney make that determination and try to get you something in return for your cooperation.
We were all brought up to respect authority and "do the right thing"...but in this case, there is a reason you have the right to remain silent...USE IT!! back to top
- They didn't read me my rights!! Can you get my case dismissed??
This is the most common question we get. Unfortunately, the answer is usually no. It is only required that your rights be read to you when you are questioned by the police AFTER being arrested. In a DWI situation, the arrest usually occurs AFTER you've already performed the field sobriety tests and answered way too many questions about where you have been and what you have been drinking; two beers seems to be the overwhelming answer of choice. In most other situations, you will not be questioned after arrest, so it is not necessary that your Miranda rights be read to you. back to top
- So, what is deferred adjudication, anyway?
Everybody has heard of it, but most people don't really understand it. Deferred adjudication is a type of probation; beyond that it gets complicated. "Regular" probation for an offense is where you are found guilty and put on probation. When pleading to a "regular" probation, you have been convicted and now your record will also show a conviction.
There are big risks and also great benefits when taking a deferred adjudication. First, when you take a deferred adjudication, essentially you are entering a plea of guilty, but the Judge does not find you guilty, your punishment is NOT assessed, and you are placed directly on probation. The main benefit is that if you successfully complete your probation then you will not have a conviction for the offense. In family violence and sex cases, however, you might as well be convicted ... as the consequences are about the same. The big risk is that if you violate this type of probation and the Judge revokes your deferred adjudication, he or she can sentence you up to the maximum penalty available for the crime you pled to, and generally you can't appeal that decision.
If you successfully complete the deferred adjudication probation, in most cases, you can have the records sealed; this applies to basically all non-family violence or non-sex related offenses. However, you may have to stay "conviction free" for several years to be eligible, depending on your original offense. Please note that sealing your records is not the same as expunging your records (see above section regarding the difference between expunctions and non-disclosures). In any event, you DON'T have a "conviction" after a successfully completed deferred adjudication (for any offense). If someone looked up your record, it would show that you were arrested and successfully completed a deferred adjudication. Keep in mind, you cannot receive deferred adjudications for DWIs. back to top