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I have read throught the DWI Resources and didn't find my specific question addressed on the outline or here on the forum. Scenario: Defendant has three prior deferred adjudication probations from 1984-1985. In each case, he was given probation and whether or not successfully completed he received a "Discharge from Probation" or "Order of Dismissal" with the wording "It is further ordered that the finding of guilty heretofore entered in said cause be and the same is set aside and that the indictment and/or complaint and information in said cause be and the same is hereby dismissed." Can these priors be used to enhance to a felony DWI?
 
Posts: 52 | Location: TX, USA | Registered: February 20, 2008Reply With QuoteReport This Post
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Nope. I'm still looking for the cases on point, but the fact that your Judgments state "finding of guilt is set aside" makes those "not final convictions".
 
Posts: 115 | Location: Denton, TX, USA | Registered: February 15, 2007Reply With QuoteReport This Post
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Even a regular probation for an offense of DWI that was committed prior to January 1, 1984 is not a final conviction. As a result, unless the probation was subsequently revoked, it cannot be used to enhance a subsequent DWI to a felony. Look at Nixon v. State, 153 S.W.3d 550 (Tex.App.–Amarillo 2004, pet. ref'd.)
 
Posts: 40 | Location: New Braunfels, Texas, USA | Registered: April 30, 2004Reply With QuoteReport This Post
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