In Texas, “DWI probation” can mean two very different things. Regular probation, called community supervision, comes after a conviction. You’re convicted, the jail sentence is suspended, and when probation ends the conviction is still there, permanently. Deferred adjudication looks similar day to day, but there’s no conviction, a judge can end it early, and afterward the record can often be sealed. On a first DWI, which one you get is decided at the plea, and a conviction can’t be turned into deferred later. That’s the decision we spend the most time on.
Call (713) 664-4000. If you’ve already been placed on DWI probation and something has gone wrong, like a missed class, a failed test, an interlock violation or a new arrest, call before your probation officer files anything.
Probation versus deferred on a DWI
| Regular DWI probation | Deferred adjudication | |
|---|---|---|
| Conviction? | Yes | No, if completed |
| Who can get it | Most DWI defendants | Only a first DWI. Not available with an alcohol concentration of 0.15 or more or a commercial license or permit, and never on a DWI with a child passenger (Code of Criminal Procedure Art. 42A.102(b)(1)) |
| Length | Up to 2 years on a misdemeanor. On a felony DWI, 2 to 10 years (Art. 42A.053), or 2 to 5 years on a state jail felony DWI like a child passenger case (Art. 42A.553) | Up to 2 years on a misdemeanor |
| Ending early | Not allowed on a DWI conviction (Art. 42A.701(g)) | Allowed if the judge finds it serves society and you (Art. 42A.111(b)) |
| Sealing the record | A first DWI conviction without a 0.15 finding can be sealed by petition 2 years after probation ends if you had an interlock for at least 6 months, or 5 years if not, with no other record and no crash involving another person (Gov’t Code § 411.0731) | Can be sealed by petition two years after discharge, if you have no other record and there was no crash involving another person (§ 411.0726) |
| Future DWI | Counts as a prior | Also counts as a prior (Penal Code § 49.09(g)) |
What DWI probation requires
Some conditions are required by law. If you’re put on probation after a DWI conviction, you have to finish a state-approved DWI education program within 180 days of starting probation. The judge can waive it, or extend it up to a year, if you show good cause in a written motion (Art. 42A.403). If the completion never gets reported to DPS, your license can be revoked months after the plea, even though you finished the class, so we make sure it’s filed. An ignition interlock is mandatory in several situations, including a 0.15 finding and a repeat DWI (Art. 42A.408). On deferred adjudication for a DWI, an interlock is required unless the judge, after a drug and alcohol evaluation, finds on the record that it isn’t needed for the community’s safety (Art. 42A.408(e-1), (e-2)). On an enhanced DWI, like a second offense, some jail time is also a required condition of probation (Art. 42A.401).
Most of the rest is up to the judge: reporting, alcohol monitoring, counseling, community service within statutory caps, and fees. There’s no statute that requires community service on a DWI. Those conditions are negotiable, and we negotiate them before the plea, not after. How long first-DWI probation lasts and whether it can end early are covered on our page about how long DWI probation lasts.
When probation goes wrong
A missed report, a positive test, an interlock violation or a new arrest can lead the State to file a motion to revoke regular probation, or a motion to adjudicate guilt on deferred. Those are different in one way that matters a lot. On regular probation, the judge can’t sentence you to more than the jail term already assessed. On deferred, adjudication opens up the full punishment range for the offense.
A violation doesn’t have to end in revocation. The judge can continue you on probation or change the conditions instead (Art. 42A.751(d), 42A.752), and if the only thing alleged is failing to pay probation fees or court costs, the State has to prove you could pay and didn’t (Art. 42A.751(i)). We go to the probation officer and the prosecutor early, with proof of whatever was missed now being done, and that’s usually what keeps someone on probation. See our probation violation page.
The better outcome is often no probation at all
Probation is a sentence, not a win. Before any client pleads, we look at whether the DWI can be beaten outright: the stop, the field sobriety tests, the breath or blood result and the video. Jay Blass Cohen is a certified instructor in the standardized field sobriety tests and an ACS-CHAL Forensic Lawyer-Scientist, and those cases get tried. See our first-offense DWI page for how we attack the evidence.
Facing DWI probation in Houston? Call Blass Law
Jay Blass Cohen has defended DWI cases in Houston since 2009 and has never worked for the prosecution. Maybe you’re deciding on a plea. Maybe you’re trying to stay on probation you already have. Either way, we’ll tell you where you stand and what we can do.
Call (713) 664-4000. If there’s a motion to revoke or adjudicate filed against you, call now.
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC, ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.