Clearing an Arrest From Your Record is Like Digging up a Tree

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Clearing your criminal history is the goal in every single case.  Knowing how to get there is the trick.

An Expunction under Texas Code of Criminal Procedure Art. 55 is essentially a Court order for the FBI, Texas Department of Public Safety, and anyone who has possession of information about your case to destroy the information.  Not to save or hide the information.  Destroy it.  As you can see in Art. 55.03(2), a person can even deny the occurrence of the arrest in many circumstances.

But how do we get to be eligible for expunction and when does your right become able to be exercised?  That’s an extremely complicated question which depends on the certain underlying facts and charges in your case and could honestly be the subject of 30 blogs instead of 1.

The Core Basics of Expunction Eligibility

Think of an expunction like digging up a tree.  You have to get the root.  An expunction applies to a “unit of prosecution” which is the actual arrest.  Therefore it is the actual “arrest” being erased and all things stemming from the arrest (such as the actual prosecution.)  The arrest is like the root of the tree.  If you get the root, you’ve gotten it all.

As a rule of thumb, if someone is acquitted at trial for all the charges they face from a single arrest — the arrest will be expungible immediately.  For example, being found not guilty for a DWI where no other charges were filed from the same case will allow you to be eligible for an expunction.

Facing Multiple Charges

Facing multiple charges is like a tree with a root system fractured into different pieces in the ground.  You still have to get them all or you’ve not destroyed the tree.

Where a person faces multiple charges from the same arrest, the person must be eligible for each individual charge to be expungible for the case to ultimately be expunged.  So if the person arrested and acquitted for DWI above also was charged with marijuana possession from the same arrest — they would have to be eligible for expunction on both.

Different Ways to Become Eligible for Expunction

Acquittal isn’t the only theoretical path to expunction though practically speaking many times it is.  Most prosecuting agencies will not reduce or dismiss DWI arrests in Texas.  This means usually the only path to expunction is acquittal.  Dismissals and reductions of other certain charges, however, will allow those arrests to become expunction eligible.  In addition, the Collin and Dallas County District Attorney’s office’s have adopted pre-trial diversion programs for the express purpose of incentivizing probation with ultimate expunction depending on the charge.

Translation:  there’s more than one way to skin this cat.

Final Note:  Expunctions don’t happen on their own.

An expunction is a petition filed with the District Clerk of the County.  It is literally it’s own separate lawsuit.  The most common mistake people make is failing to follow up and get their arrest expunged.  A criminal record doesn’t go away on it’s own.  After you win your case, get it reduced, dismissed or however you become eligible for expunction — do yourself a favor and finish the thing off!

For criminal defense lawyers an expunction is like kicking an extra-point after the touchdown… it’s a really fun thing to file after a hard-fought battle for a client!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact a lawyer directly.

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