Can a DWI Be Expunged or Sealed in Austin? What Texas Law Allows

Few records follow a person the way a DWI does. It turns up on background checks, rental screenings and licensing forms, and many people assume that time or a dismissal will make it disappear. Texas gives two separate ways to clear a record, an expunction and an order of nondisclosure, and which one is open depends on how your case ended, not on how long ago it happened. A DWI lawyer in Austin begins with the last paper in your file, because the judgment, the dismissal order or the discharge decides what is possible.

This guide matches each kind of DWI outcome to the remedy that fits it, explains when an arrest can be expunged, which convictions and deferred adjudications can be sealed and when you may file, lists the cases that no route reaches, and describes what an order does and does not hide. It also corrects claims that circulate online, such as that every dismissed DWI can be erased or that a first DWI can never be sealed. For record clearing beyond DWI, see our page for an expungement lawyer in Austin.

Match Your Outcome to the Remedy

• Acquitted at trial. Expunction is available as of right, subject to a rule about other charges from the same incident. The trial court must tell you about the right when it acquits you.
• Dismissed, or never charged. Expunction may be available, but only if the dismissal had a reason the statute lists or the waiting time for an uncharged arrest has passed.
• Convicted and placed on probation. Expunction is closed, and an order of nondisclosure is possible after a waiting period if every condition is met.
• Convicted and sentenced with no probation. A separate section allows nondisclosure for some of these convictions after a longer wait.
• Deferred adjudication, completed. A narrow section allows a petition for a nondisclosure order two years after the case is discharged and dismissed. See our page on first-offense DWI in Austin for who can receive deferred adjudication at all.
• Convicted of a lesser offense. The judgment names the offense, and the rules for clearing it depend on that offense, so we read the paper before advising anyone.

When a DWI Arrest Can Be Expunged

An expunction under Chapter 55A of the Code of Criminal Procedure orders the agencies that hold records of the arrest to return them to the court or to blot out the parts that identify you. It reaches only an arrest that produced no final conviction, has no charge still pending and involved no court-ordered community supervision other than for a Class C misdemeanor (Article 55A.051). That rules out a plea to DWI, probation and deferred adjudication. These are the outcomes that can qualify:

• An acquittal. A not-guilty verdict at trial qualifies (Article 55A.002). The exception is an acquittal from a criminal episode in which you were convicted of, or can still be prosecuted for, another offense (Article 55A.151).
• No charge was filed. If no indictment or information was ever presented, you are entitled to an expunction once one year has passed since the arrest for a misdemeanor DWI, or three years if a felony was charged or arose from the same transaction, and sooner if the prosecutor certifies that the records are not needed (Article 55A.052).
• A dismissal for a listed reason. A dismissed or quashed charge qualifies only if the court finds it was dismissed because you completed a veterans treatment court, a mental health court or a pretrial intervention program, because the charge was presented by mistake, on false information or without probable cause, or because the charging paper was void (Article 55A.053). A dismissal for any other reason may not fit, and the wording of the order and the file decide it. Our page on expunction for dismissed charges explains how those orders are read.
• The time to prosecute has run out. An indictment or information for a Class A or Class B misdemeanor must be presented within two years of the offense (Article 12.02), and once prosecution is no longer possible the arrest can be expunged (Article 55A.054).
• The prosecutor recommends it. A court may expunge records before trial when the attorney representing the State recommends it (Article 55A.101). That route is discretionary, not an entitlement.
• A pardon. A conviction that is later pardoned, or that is the subject of relief granted on the basis of actual innocence, can be expunged (Articles 55A.003 and 55A.004).

Two limits catch people off guard. A license suspension or revocation record generally cannot be expunged under Chapter 55A (Article 55A.152), so the administrative suspension from your arrest stays in your driving history even when the criminal arrest is cleared. And a dismissal that arrived as part of a plea to some other offense raises separate questions, which we answer by reading the judgment. Our guide to expunction in Texas covers the general rules for all offenses.

Sealing a DWI After Probation

Most sealing questions after a DWI involve a probated conviction. Government Code Section 411.0731 allows a petition for an order of nondisclosure, which keeps criminal justice agencies from releasing the record to the public, only if every one of these is true:

• The offense. You were convicted under Penal Code Section 49.04 of an offense that is not punishable under Section 49.04(d), which means the test result was below 0.15, and you were placed on community supervision rather than deferred adjudication.
• Completion. Your supervision was not revoked, and you finished it, including any confinement, and paid all fines, court costs and restitution.
• A clean history. Nothing else is on your record as a conviction or deferred adjudication, apart from a fine-only traffic offense, and nothing new is added during the waiting period (Section 411.074).
• No crash with another person. The court cannot issue the order if the State shows that the offense resulted in a motor vehicle collision involving another person, and that includes a passenger in your own car.
• The judge agrees. After notice to the State and a chance for a hearing, the court must find that the order is in the best interest of justice.

The waiting period runs from the day supervision ended, not from the arrest. You may file on or after the second anniversary if you followed a condition that limited you to a car with an ignition interlock device for at least six months, and on or after the fifth anniversary if the court did not order that condition for that long. Texas sets up automatic and simplified sealing for many misdemeanors, but those sections exclude DWI (Sections 411.072 and 411.0735), so a DWI always takes a petition. Our page on orders of nondisclosure for convictions covers the general process.

If you served a sentence without probation, for example a term in jail, Section 411.0736 may apply instead. It carries the same conditions, but the wait is three years after you complete the sentence if you complied with an interlock condition for at least six months, and five years in every other case.

Sealing a DWI After a Completed Deferred Adjudication

Deferred adjudication for a DWI is a narrow option. Article 42A.102(b)(1) bars it if you held a commercial driver’s license or learner’s permit at the time, if your alcohol concentration was 0.15 or more, or if the punishment could be raised under Section 49.09 because of an earlier offense. For a first, ordinary charge it can still be available. When you finish it and the judge dismisses the case and discharges you under Article 42A.111, Government Code Section 411.0726 allows a petition to the court that placed you on supervision if all of these are true:

• The offense. It was a misdemeanor under Section 49.04 or 49.06, and no affirmative finding under Article 42A.105(f) was filed in the papers of the case.
• A clean history. No other conviction or deferred adjudication is on your record, except a fine-only traffic offense, and you satisfy Section 411.074.
• No crash with another person. The State can defeat the petition by showing that the offense resulted in a collision involving another person, including your own passenger.
• The timing. The earliest filing date is the second anniversary of finishing supervision and receiving the discharge and dismissal, and the judge must conclude that an order serves the best interest of justice.

Some websites say a DWI that ended in deferred adjudication can never be sealed, and others say it always can. Neither is right. Sealing the case from the public also does not stop it from counting later. A deferred adjudication for DWI is treated as a conviction when the State seeks to enhance a new DWI (Section 49.09(g)), and a court may hear about it when it sets punishment (Article 42A.111(d)). Our page on orders of nondisclosure for deferred adjudication covers the general rules.

DWI Cases That No Route Reaches

These situations usually close the door. We still read the file, because dates and paperwork sometimes change the answer:

• A second or later DWI. Every DWI sealing section requires that you have no other conviction or deferred adjudication except a fine-only traffic offense. See second-offense DWI in Austin.
• A conviction at the 0.15 level. The conviction sections exclude offenses punishable under Section 49.04(d), and Article 42A.102 bars deferred adjudication at that level.
• A crash involving another person. Each DWI sealing section lets the State block an order on that ground, and a passenger in your own vehicle counts.
• A child passenger, an injury or a death. Those cases are charged under Sections 49.045, 49.07 and 49.08, and the DWI sealing sections cover offenses under Section 49.04. As we read the statutes, nothing in them reaches DWI with a child in Austin, intoxication assault in Austin or intoxication manslaughter in Austin. A third-offense felony fails the clean-history rule, and we review any other felony DWI in Austin one case at a time.
• Probation that was revoked or not finished. Completion is a condition of every conviction route. Our page on probation violations for DWI explains how a revocation case works.
• A new conviction during the wait. Any offense other than a fine-only traffic offense can end eligibility for the earlier DWI.
• A family violence record. Section 411.074 bars an order for a person with certain family violence histories.
• A conviction from another state. A Texas order reaches Texas records. The other state’s law decides what can be done there.

What an Expunction or Order Does and Does Not Do

• After an expunction. The agencies listed in the order must return the records to the court, or blot out the parts that identify you, and delete their public index references (Article 55A.353). When the order is final, the records may not be released or used, and you may deny the arrest and the order. If you are asked under oath in a criminal proceeding, you may say only that the matter has been expunged (Article 55A.401).
• After an order of nondisclosure. Nothing is deleted. Criminal justice agencies may not release the record to the public, and you do not have to mention the case on an application for employment, information or licensing (Sections 411.0755 and 411.0765).
• Who can still see a sealed record. Other criminal justice agencies, regulatory licensing bodies and a long list of named entities can still receive it, including the State Board for Educator Certification, school districts, the Texas Medical Board, the Board of Law Examiners, the State Bar, the Board of Nursing, hospitals and the Department of Family and Protective Services (Section 411.0765). Our page on arrests of professional license holders lists the questions to ask before you answer a licensing form.
• Your driving record. It is a separate record. The statute defines criminal history record information to leave out driving record information (Section 411.082), and it does not change a suspension that already happened.
• Private databases. The Department of Public Safety must send a sealing order to private companies that buy its data or are likely to hold the record, but a copy held by a background-check company may take time to update.

How a Petition Moves Through the Courts

1. Evaluate the record. We gather the judgment or dismissal order, the discharge papers, proof that fines and costs were paid, any interlock records and a DPS criminal history, then decide which remedy applies and when you can file.
2. File the petition. An expunction petition is filed in a district court for the county of the arrest, or of the alleged offense, and goes to a justice or municipal court only for a fine-only offense. It must be verified and must list every agency that holds records (Articles 55A.251 to 55A.253). A nondisclosure petition goes to the court that placed you on supervision or imposed the sentence, with evidence that you may file and the filing fee that applies to a civil case (Section 411.0745).
3. Notice and hearing. The court sets an expunction hearing no earlier than the 30th day after filing and sends notice to each listed agency (Article 55A.254). For nondisclosure, the State gets notice, and a hearing is not required if the State does not ask for one within 45 days and the court finds that you may file and that the order serves the best interest of justice (Section 411.0745).
4. The order. After a nondisclosure order, the clerk must send it to the Department of Public Safety within 15 business days, the Department seals its records and forwards the order within 10 business days, and the agencies and courts that receive it must seal their own records within 30 business days (Section 411.075).
5. Follow-through. We check that the agencies and records custodians have actually complied, since an order helps only when the records are changed.

What This Means for Your Travis County Case

1. Find the final paperwork in your case: the judgment, the order of deferred adjudication and discharge, or the dismissal order.
2. Work out the date your supervision or sentence ended, and whether you were limited to an interlock-equipped car for at least six months. Those facts set the waiting period.
3. Make sure all fines, costs and fees are paid, and keep proof of each payment.
4. Avoid any new conviction until the order is signed. Only a fine-only traffic offense is safe.
5. Request your criminal history so that we can see everything on it, including cases in other states.
6. Hold off on filing until the waiting period ends, since an early petition cannot succeed, and be cautious with any service that promises to erase a DWI before it has read your records.
7. Answer job, housing and license questions truthfully until an order is signed, and ask us what the law lets you say afterward.

More About DWI Charges in Austin

These pages answer nearby questions that people ask once a DWI case ends.

• license reinstatement and occupational licenses: how the driving record and suspensions work apart from the criminal record.
• common questions after a DWI arrest: quick answers about bail, testing and first steps.
• first 15 days after arrest: the license deadline and the early choices that shape the case.
• misdemeanor versus felony DWI: the facts that set the grade of a charge.
• expunctions in Travis County: who qualifies and how the process works for every offense.

Why Austin Clients Choose Barton & Associates for DWI Record Clearing

Barton & Associates has tried Texas cases since 2001. Our Austin criminal defense team includes Gary J. Barton, who is Board Certified in Criminal Law by the Texas Board of Legal Specialization, is a former capital murder prosecutor and has tried more than 100 jury trials, and Jim Erickson, a senior trial attorney in the Austin office who has handled criminal defense since 1985 and has more than 250 jury verdicts in more than sixty Texas counties. Whether a DWI can be cleared years later is often settled by how the case ends, so we think about the record from the first meeting and work toward outcomes that keep expunction or nondisclosure open when the evidence allows.

No lawyer can promise that a court will sign an order, and a service that offers to erase a DWI before reading your records should make you wary. What we can do is read the judgment, tell you which remedy applies and when you can file, and say plainly when none does. The first consultation is free and confidential. Our Austin office is at 316 W. 12th Street, Suite 400, Austin, Texas 78701, and we meet with clients there by appointment. You can get directions to our office before your visit. For the first meeting, bring what you can of the following, and call even if you cannot find everything.

• Case number, court name and arrest date
• Your judgment, deferred adjudication order or dismissal order, whichever ended the case
• The discharge from probation or supervision and the date it ended
• Proof that fines, court costs and fees were paid
• Records showing when an interlock was installed and removed, if one was ordered
• Records of any other arrest, conviction or deferred adjudication in any state
• A crash report, if anyone else was in the car or was hurt
• A calendar of your key dates and deadlines

Frequently Asked Questions About DWI Expungement and Sealing in Austin

Can a DWI be expunged in Texas?

Not after a conviction, a probated sentence or a deferred adjudication, with the narrow exception of a pardon or relief based on actual innocence. An arrest that ended in an acquittal can be expunged, and so can one that ended in a dismissal for a reason the statute lists, one that was never charged after the waiting time, or one whose time to prosecute ran out. The way the case ended decides the answer.

Can a DWI conviction be sealed?

Sometimes. Government Code Section 411.0731 allows a petition after a probated first-offense conviction, and Section 411.0736 covers some convictions that carried no probation. Each requires that the test result was below 0.15, that you have no other criminal history except fine-only traffic offenses, that no collision involving another person was part of the offense, and that the judge finds the order serves the best interest of justice.

How long must I wait to seal a DWI?

It depends on the route. After probation, the wait is two years from the day supervision ended if you followed an interlock condition for at least six months, and five years if not. After a sentence with no probation, it is three years with that interlock condition and five years without it. After a completed deferred adjudication, it is two years from the discharge and dismissal. None of the waits runs from the arrest.

Can a DWI that ended in deferred adjudication be sealed?

Yes, in some cases. Section 411.0726 allows a petition for a misdemeanor DWI after a discharge and dismissal, if you have no other criminal history except fine-only traffic offenses, the offense did not cause a collision involving another person and no affirmative finding under Article 42A.105(f) is in the case papers. Deferred adjudication itself is unavailable for a commercial license holder, a test result of 0.15 or more or an enhanced charge.

Is a dismissed DWI expunged automatically?

No. A dismissal does not clear anything by itself. An expunction takes a petition and an order, and the dismissal must fit one of the reasons in Article 55A.053, such as a completed pretrial intervention program or a charge that was presented by mistake. After an acquittal at trial, the court must tell you about the right to expunction, and you can ask for the order at that time.

Can I expunge a DWI arrest if no charge was ever filed?

Yes, once the waiting time has passed. For a misdemeanor DWI it is one year from the arrest, and for an arrest that involved a felony it is three years. The prosecutor can shorten the wait by certifying that the records are not needed. We check the date of the arrest, whether any charge was ever presented and whether other offenses came from the same incident.

Does a high test result or a crash disqualify me?

Yes to both. The conviction sections exclude offenses punishable under Section 49.04(d), which means an alcohol concentration of 0.15 or more, and Article 42A.102 bars deferred adjudication at that level. Every DWI sealing section also lets the State block an order by showing that the offense resulted in a collision involving another person, and a passenger in your own vehicle counts as another person.

Can a second DWI be sealed?

No. Each DWI sealing section requires that you have never been convicted of, or placed on deferred adjudication for, another offense, apart from a traffic offense punishable by fine only. A second DWI fails that rule, and so does a first DWI paired with any other conviction. A new conviction during the waiting period can also cost you eligibility for a first DWI.

Can a DWI be sealed after a jail sentence with no probation?

Possibly. Section 411.0736 applies to a conviction under Section 49.04 that is not eligible under the probation section, once you complete the sentence, pay all fines and costs and wait three or five years. The same conditions apply as for a probated case. Because the answer turns on the judgment and the sentence, we read both before telling anyone that no route exists.

Who can still see a sealed DWI?

Courts, prosecutors and other criminal justice agencies can, and so can regulatory licensing bodies and a list of named entities such as school districts, the Texas Medical Board, the State Bar and the Board of Nursing. A sealed case can also be used if you are charged with a DWI again, since a DWI deferred adjudication or conviction still counts as a prior. After a nondisclosure order, you do not have to mention the case on an application for employment, information or licensing.

How long does a DWI stay on my record in Texas?

The statutes that govern record clearing set no number of years after which a DWI drops off your criminal history. It stays until a court orders an expunction or an order of nondisclosure that changes what is released, and a nondisclosure order hides it from the public without deleting it. Your driving record is separate from your criminal history and follows its own rules.

How long does the process take, and is a hearing required?

The timing depends on the court’s calendar, the number of agencies that hold records and whether the State opposes the petition. An expunction hearing cannot be set sooner than 30 days after filing. A nondisclosure petition needs no hearing if the State does not ask for one within 45 days and the court is satisfied, and the agencies then have a series of business-day deadlines to seal their records. With those built-in waits, the process is never a matter of days.

What should I bring to the first meeting about clearing a DWI?

Bring the case number, the court and the arrest date, along with the judgment, the dismissal order or the order of deferred adjudication. Add the discharge from supervision, proof that fines and costs were paid, interlock records and a list of every other arrest or conviction in any state. A crash report helps if anyone else was involved. Call even if some of it is missing.

Talk With an Austin DWI Record Attorney

Whether a DWI can be cleared depends on how the case ended and on dates that are easy to miscount. Talk with an Austin criminal defense attorney at Barton & Associates about your records and our advice before you file a petition, pay a record-clearing service or answer a form about your past.

Call our Austin office at 512-THE-FIRM (843-3476) or complete the online Free Consultation form to schedule a confidential meeting about your record. Consultations at the office are by appointment only. The office is at 316 W. 12th Street, Suite 400, Austin, Texas 78701.

Main Category: Criminal Defense Austin
Practice Area Category: DWI & Intoxication
Barton & Associates, Attorneys at Law
316 W 12th St Suite 400, Austin, TX 78701
Office: 512-THE-FIRM (843-3476)