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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 87525
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I had an assault charge that was dismissed in tarrant county,

Resolved Question:

I had an assault charge that was dismissed in tarrant county, texas this year.
How do I get it expunged as it is still on public record and does not show
dismissal.

Also, I have a DWI charge set for trial. I did not take a test from the arresting
officer and my blood test came back .07. I did not have a receipt as the
officer was looking for in my car. Also, I was sitting with a police officer at
the restaurant I left and was arrested 3 minutes later for "speeding" at time
of arrest. Does not the police office (off duty) have an obligation to say
something to me if he felt that way. If he did say something to the server,
is that a fact I can use in my trial if it is not dismissed??
Submitted: 11 months ago.
Category: Family Law
Expert:  Ely replied 11 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. Can you please tell me:

1) The assault charge - was it a felony or misdemeanor? Family violence or not?
2) Was the matter simply dropped, or did you enter a deferment/deferral program?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 11 months ago.


It was family violence that was simply dismissed.


No deferment.


 


I belive that the court is still viewing this charge and taking


it into consideration with the DWI. My video is good


with not slurring of words or body movement in my


video at the police station.


 


Can they use a dismissed charge as a prior concerning


the dwi.

Expert:  Ely replied 11 months ago.
Thank you, Paul.

Expunction
If the charge was subsequently dropped, you were acquitted, or were found guilty but the verdict was later overturned, then this qualifies for an expunction. Expunction is what Texas calls an expungement. This is what "seals" the record.

This is done by filing a Petition for Expunction with the same Court that dealt with the criminal matter. For a sample form, please find one here. You can file the motion with your court - see a listing of the Courts here.

Now, before filing, it is best to call ahead and to find out:

1) Whether or not the clerk can receive the motion directly or if it needs to be filed via the district clerk; and
2) To get a time/date for the motion before filing it;
3) Then, when filing said motion, one also needs to serve a copy unto the District Attorney via certified letter, return receipt requested, along with notice of time/date:

Tarrant County Criminal District Attorney’s Office
Tim Curry Criminal Justice Center
401 West Belknap
Fort Worth, TX 76196


Then, the Judge will consider the motion at that time.

Does not the police office (off duty) have an obligation to say
something to me if he felt that way.


No, he does not, I am sorry to say. The police do not have to hint or expose their determination of whether or not to charge someone with a criminal act.

If he did say something to the server,
is that a fact I can use in my trial if it is not dismissed??


Yes, actually. Whatever the officer stated at the scene may be used by your attorney to possibly weaken the DA's case.

Can they use a dismissed charge as a prior concerning

the dwi.


Not formally, no. If it was dismissed, then this cannot be taken into consideration for any DWI matter. Of course the Judge is human. They make mistakes. They may be doing so even without thinking about it. Your attorney has to "remind" the Court not to do so.

I hope this helps and clarifies. Good luck.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 87525
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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