What is the difference between regular probation and deferred adjudication?

There are two kinds of probation in Texas: (1)”regular” probation, and (2) deferred adjudication probation. The term “probation” in the Texas Code of Criminal Procedure has now been replaced with the phrase “community supervision”. (In spite of this, I use the terms “probation” and the “community supervision” interchangeably). There are many similarities and a number of differences between regular probation (RP) and deferred adjudication (DA) probation. As a general rule, DA is considered by most attorneys to be advantageous–as compared to RP–for the defendant.

First, the similarities. RP and DA both require reporting to a probation officer (usually once per month), paying a monthly fee ($60 in Travis County), many standard conditions (no alcohol or drugs; work; support your dependents; do not violate the law; etc.) and several tailored conditions, such as drug/alcohol/family violence counseling. RP and DA both subject the probationer to jail or prison–depending on whether the probation is a misdemeanor or felony–if the probationer violates a condition of probation. The details of the probation–such as the offense probated and the length of probation will be posted on the Texas Department of Public Safety’s (DPS) online “conviction” database as a result of being placed on either type of probation. (The DPS “conviction” database is a misnomer, since it publishes DA data even though no conviction has occurred. See below.) Many people get confused about this fact and mistakenly believe that a DA probation will not appear on the probationer’s criminal record.

What are the differences? As a technical legal matter, DA is not a “conviction”. Before a person is placed on DA, the person pleads “guilty” or “no contest”. The Judge accepts the plea but “defers” a finding of guilt and places the person on DA. A finding of guilt is never made unless the person violates DA and the Judge, after a hearing, adjudicates (ie. makes a finding of guilt) the case. The original idea behind DA was that it allowed probationers on DA to be able to answer–on an employment application, for example– that they had never been convicted of a crime. In today’s modern/internet world, the Texas Department of Public Safety posts all DA probation dispositions and sells that information to criminal history database companies like PublicData.com. In short, the value of not having been convicted under DA is debatable. However, there is one clear advantage with DA. The law now allows, in some cases, for a probationer who successfully completed DA to apply to have the records sealed. The mechanism is called a Petition for Non-Disclosure. There are notable exceptions, such as assault/family-violence offenses, that may never be sealed. There are also waiting periods depending upon the type and/or severity of the crime. For example, no felony offense can be sealed until five years after successfully completing DA.

There is also a detrimental aspect to receiving DA. Particularly in the case of a felony, if probationer on DA violates the terms of the DA, the probationer is exposed to the entire punishment range for that particular felony offense. Take burglary of a habitation for example. If a Judge ruled after a hearing that a probationer on a five year DA probation violated probation, the Judge could sentence the probationer to anywhere between two and twenty years in prison (i.e. the full range of a second degree felony). Alternatively, if a burglary probationer had been sentenced to five years in prison probated for five years (i.e. 5/5 probation), the Judge could only assess punishment between two and five years in prison.

If you have more questions, you can click on the links tab to the left and then click on Texas Code of Criminal Procedure. Article 42.12 is the main Community Supervision statute. DA provisions are found in Section 5.

What makes a good criminal defense lawyer?

In my view, the best criminal defense attorneys have some or all of the following characteristics: trial experience, integrity, knowledge of the law, knowledge of people (including jurors), patience, perseverance, courage and wisdom.

A good lawyer has a “sixth” sense about how a jury will perceive certain facts and particular people. This usually comes with experience and after having had numerous jury trials. Usually, this is a learned skill–learned from trying cases.

Prosecutors know which defense attorneys are trustworthy and mean what they say. The criminal defense lawyers that practice in the Travis County courthouse deal with the same prosecutors day in and day out. In my view, an accused person has an advantage if he or she is represented by an attorney that has established a good reputation for honesty and integrity.

Legal knowledge is acquired by keeping up with changes in the law as well as applying the law time after time during trial situations. This is important because there are cases in which all the facts are on the side of the government. In those cases the lawyer needs to know every available legal defense or challenge.

A good lawyer is able to realistically evaluate how his client, or other defense witnesses, will withstand cross-examination by the prosecutor. A good attorney must also be able to accurately asses, based on very little information, whether a potential juror’s worldview more closely resembles that of his client or the prosecutor.

Often a lawyer must wait until the time is right to pursue a particular strategy in a case. A good criminal defense lawyer aggressively pursues every avenue of defense–factual and legal. The best defense lawyers explore every possible opportunity to settle a case in a way that avoids a conviction or avoids exposure to the risk of jail or prison.

It takes lots of courage to stand up to the vast resources and power of the government. This is no task for the faint at heart.

There are many important decisions to be made during the time when a criminal case is pending. One of the most important decisions is whether or not to have a trial. Another important decision is whether to elect to have a judge or jury decide your case.

How do you know if the lawyer you are interviewing possesses some or all of the qualities listed above? My suggestion is that you ask tough questions to the lawyer and make a judgement whether you believe the lawyer is shooting you straight. I also encourage you to ask other lawyers about the reputation of the attorney you are considering hiring. I suggest asking the attorney you are interviewing whether he or she is the actual person that will be going to court when your case is set. Finally, I would be wary of any attorney that promises a specific outcome before they have spoken with any witnesses or seen the evidence in the prosecutor’s file.

In my law practice, I do not charge any fee for an initial 20-minute consultation.


If I am stopped for DWI in Austin, should I take a breath test?

It depends. In my view, the answer to this question is not as easy as many lawyers would have you believe.

A police officer investigating a DWI offense is not going to ask whether you consent to taking a breath or blood test until after he has placed you under arrest for DWI. That means the officer has concluded that you failed the standardized field sobriety tests (SFSTs–such as walk and turn, one leg stand, etc.). At that point in time you are faced with a serious dilema. If you refuse a breath or blood test, it is a certainty that you are going to be booked into jail for DWI. If you take the breath test–and pass it–there is some chance the officer will release you without filing charges. If you give breath or blood–and score above the 0.08 legal limit–you have just supplied the government with evidence against you that they otherwise would not have had. Confused? In other words, in my view, it is best to take the test IF, AND ONLY IF, you are pretty darn certain you are going to score significantly below the legal limit of 0.08.

How do you estimate whether you will pass the test? As a general ball park rule, for a 160 lb. man, every beer or (standard) mixed drink (this does not include Long Island Iced Tea, Flaming Dr. Peppers, Margaritas, etc.) raises that person’s breath/blood alcohol content (BAC) by 0.02. For the same hypothetical man, BAC falls (through elimination/absorption) at the rate of about 0.02 per hour. However, you must remember that there are many, many variables such as weight, metabolism, food content in the stomach, time, etc.

If you want to calculate estimates for BAC based on certain variables, click here.

If you choose unwisely and provide a breath or blood sample that contains more alcohol than the 0.08 limit allows, you will have substantially increased the evidence against you and possibly put yourself in the situation of having to hire an expert–in addition to your attorney–to attempt to discredit the intoxilyzer instrument at trial. You will have made your defense much more difficult and, possibly, more expensive.

I was arrested for DWI in Austin and my driver’s license was confiscated, can I still drive?

Yes, but only until your driver’s license is suspended. If your license was confiscated, you should have received a piece of paper entitled “Notice of Suspension/Temporary Driving Permit”. The Temporary Driving Permit (Permit) is your temporary driver’s license. The Permit is valid for 40 days from the date of arrest, or, if you request a hearing, until the hearing judge makes a final decision in your driver’s license case.

In addition to the DWI criminal case, there will be an administrative case—the Administrative License Revocation (ALR) case—in which the Texas Department of Public Safety (DPS) will seek to suspend your license. You have the right to request a hearing in the ALR case. You have 15 days from the date of arrest to request an ALR hearing. If you do not request an ALR hearing, your Permit will expire after 40 days. If you request an ALR hearing, your Permit will be valid until the administrative judge in the ALR case makes a final ruling. The ALR hearing could occur weeks or months after your DWI arrest.

If your driver’s license is suspended following the ALR hearing, your attorney can prepare a Petition for Occupational License (OL) to submit to the judge in the criminal case. If approved, the OL will allow you to drive to or from work and to from “household duties” (i.e. grocery store, bank, cleaners, church, etc.).

If the DWI arrest was your first alcohol-related arrest and you failed a breath or blood test, your license will be suspended for 90 days. If the DWI arrest was your first alcohol-related arrest and you refused a breath or blood test, your license will be suspended for 180 days.

In my view, it is almost always strategically important to request and conduct an ALR hearing even though the administrative law judge will usually rule against you. The ALR hearing is important because your attorney has an opportunity to question the arresting officer under oath at a hearing that is preliminary to any DWI trial. A skillful attorney will seek to expose, at the ALR hearing, any weaknesses in the DWI criminal case and to evaluate the officer’s testimony prior to any criminal trial.