One of the most common things clients say is that they can’t wait to get a crime off their record. While this feeling is completely understandable, many attorneys do not do a good enough job ensuring that all clients understand the ramifications of accepting a plea bargain. Most criminal defendants just want the criminal justice system process over. The countless court dates, checking in with their bondsman, and the uncertainty in the entire process makes them want to just be done and plea guilty. As a result, many are quick to accept the first plea offer made within their case. Now, while this may be the best offer they could hope to receive given the facts and circumstances surrounding their case, it is of the upmost importance that we as defense attorneys do our best to explain the full scope of consequences of entering that plea of guilty. There are several outcomes that could happen in a pre-trial setting on a criminal case. The focus here is on probation and deferred adjudication probation and the resulting consequences of each.
The term “probation” has many connotations associated with it. However, the biggest term to associate with probation is CONVICTION. Taking a plea bargain that results in a term of probation means you will not be eligible for any type of expungement (or non-disclosure) of your criminal record associated with the crime you accept the plea bargain for. An exception does exist for a first DWI. The law in Texas has recently changed and does allow for a conviction on a first DWI to be non-disclosed under certain circumstances. However, all other crimes that result in a conviction are not eligible for any type of relief when it comes to criminal background checks.
Regular probation is not the same as, and should not be confused with, the term deferred adjudication. Both regular probation and deferred adjudication probation are types of probations. The key difference is that deferred adjudication probation does not result in a conviction that will stay with you for life. Once you successfully complete the term of probation, your case will be dismissed. The arrest will still be visible on your criminal record, but the disposition of the case will read deferred probation and not read as a conviction. This is incredibly beneficial as many employers when hiring a person ask if they have ever been convicted of a crime. If you have received a term of deferred probation you get to answer that question with a resounding “no”. It is important, however, to manage your expectations when it comes to what happens after you are off deferred probation. Accepting a plea of deferred probation does allow eligibility for an order of non-disclosure in MOST cases. There are several exceptions that defense attorneys, like a criminal lawyer Arlington TX trusts, should become familiar with in order to better advise their clients. The biggest exception that affects the greatest amount of clients is that any finding of family violence is not eligible for an order of non-disclosure. There is also a statutory waiting period before one can even apply for an order of non-disclosure. The time period depends on the level of offense committed. For example, it is five years for all felonies and varies with misdemeanor offenses.
So what is an order of non-disclosure? This is a civil petition to the Court where you pled guilty and were place on deferred adjudication in the underlying offense. The petition asks the Court to grant the Defendant relief in that his criminal records will not be disclosed to private entities. All of that is just fancy language to say one simple thing: with this order most employers cannot see that any crime was committed. While private employers will not be able to see the arrest and probation status on your record, law enforcement and government agencies still can. A good rule of thumb is that anything with “State of” in front of it can see the crime if they run a background check but anyone else cannot. This allows for some privacy for criminal defendants. Not only does it help in the employment context, but it also allows for eligibility for student loans and some housing assistance. While many defendants want to get their case “expunged”, requesting an order of non-disclosure is the only option for someone who has taken a plea of deferred probation.
The most common thing said by criminal defendants is that their attorney promised them that they could get their record expunged. If you have accepted any plea bargain resulting in any form of community supervision, you CANNOT get a full expungement of your criminal record. If you were placed on deferred adjudication, an order of non-disclosure is a great way to help you regain some semblance of the life you had prior to entering the criminal justice system.
Thanks to our friends and contributors from Brandy Austin Law Firm PLLC for their insight into sealing a criminal record.