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Perhaps only the hairdresser will know "for sure"? After all, doesn't the new law require that the 0.16 BAC be shown "on the trial of the offense"? Short of trying to cross reference TRNs and intox logs, I don't think that they will know.
At the TDCAA update in Cherokee County it was suggested that no admonitions need be given for the surcharge. At least that is what was reported to me. Is that the association's "official position"????
I adivsed the County Court At Law Judge, who hears the DWI cases, of that position. He had decided that he was not going to admonish defendants making a plea about the surcharge in that he doesn't tell them in a Marij. plea that their license is going to be suspended by DPS. However, the Judge thinks it will take an appeals court to tell us what really is required. And we both wondered what would happen to all the cases that get pled in the mean time.
So I guess I am going to hid my head in the sand, realizing that another part of my anatomy is sticking up in the air.
The Judge has told our commissioner's court that he will need more money for court appointed attorneys and for juries, and there will be less collection of fines that do go in the County coffers, because the folks who take the probation will make a few months payments until they get caught driving with out a license, go to jail and stop paying the fine money.
It is going to be two years of chaos!!
There is no constitutional duty to warn the defendant of incidental costs associated with a conviction. In fact, there is no constitutional duty to give the defendant any particular warning.
The Defendant's guilty plea, however, must be voluntary. Historically, that is accomplished by making sure the defendant understands the direct consequence of that guilty plea -- a punishment. So, we warn the defendant of the potential punishment range.
Over the years, the Legislature has added other warnings. Those warnings are not required by the constitution. They were added because the Legislature felt the consequences were significant enough to warrant a warning.
So, a judge is not required to warn about incidental (or indirect) costs of a conviction. Indeed, by taking on the duty, the judge risks being wrong and messing up the voluntariness of the plea by misinformation relied upon by the defendant.
The shame should be on the legislators who imposed unreasonably high "surcharges" in lieu of making an honest tax increase. As prosecutors, we should not apologize for or minimize the new law. But we should document its effect and seek a correction next session.
I agree that the likely result will be greater resistance to a guilty plea, more unlicensed drivers, and a net decrease in public safety. And all that will happen without the increased revenue that was the original inspiration for the law.
quote:Craig, TDCAA has no "official position" on the issue of admonitions. We're just here to tell you what the Legislature did and did not do -- and they did NOT include a new admonition in CCP Art. 26.13 related to these surcharges. What y'all do in each of your counties is up to you.
How this will ultimately turn out is anyone's guess, but TDCAA will be sure to update everyone as post-Sept. 1 challenges to the statute are made.
Example of recent legislative action on this....sex offender registration is a "collateral" consequence that technically did not require any sort of admonition, but in 1999 the legislature thought that it was pretty significant. So the law was amended to require notification of that consequence.
As Lisa points out, the statute limits the extra assessment to situations where it is "shown on the trial" that an analysis showed . . . The only way the Department will know which cases to bill at the higher rate would be if they develop some form for someone to report what was shown on the trial or they review the evidence themselves. The result of the intoxilizer by itself will never be sufficient.
You get convicted of DWI after 9/1/03 and then
you surrender your license to DPS or let it expire, and never pay your surcharges.
You reapply for a TDL after three years.
Do you still owe the surcharges?
Also, do persons with out of state licenses
convicted of DWI have to pay these surcharges?
How is that going to work?
How is DPS going to assess a surcharge for someone who is illegally here, and has no DL?
Are they going to try to collect before he gets deported?
What about juveniles convicted of DWI in juvenile court?
We're kinda low tech around here. I suggested that we buy a bunch of >0.16 stamps to stamp the judgments & files. I dunno what was eventually decided.
JFowler raises an interesting point. I know Texas will issue a D/L to people with out-of-state addresses, because I had one when I lived in N.M. My Tex. D/L was fixing to expire. I was going to get a N.M. D/L until I learned that in order to get a N.M. d/l you had to spend a Saturday listening to videos and lectures on the dangers of drunk driving. So when I was next in the Home of the Free & the Land of the Brave, I renewed my Tex. D/L, with my N.M. address.
If the other states that bound Texas have the same rule as N.M., and if they will issue out-of-state motorist D/L's, a drunk driver might be faced with the choice of either paying Texas $3K for a Texas D/L, or going to a neighboring state and listening to eight hours of anti-drunk driving tapes, etc. and getting a license there.
A tough choice.
Jeremy, here's my best guesses on those issues, based on my understanding that this is a system of administrative driver's license surcharges:
quote:New Trans. Code Sec. 708.152(b) says "a license suspended under this section remains suspended until the person pays the amount of the surcharge and any related costs" -- so I'm thinking DPS is gonna want their pound of flesh whether it's 3 years or 13 years later, and that person doesn't get their license until it's paid.
quote:I haven't asked DPS, so this is just a guess, but since this is an administrative surcharge related to Texas DLs, how can DPS assess a DL surcharge against someone with an out-of-state DL? Until I hear otherwise from DPS, I'm assuming non-Texans are off the hook.
quote:Assuming the illegal alien has no license, then there is nothing for DPS to assess the surcharge against -- so that illegal alien is also off the hook (another guess).
quote:Good question -- anyone care to weigh in on that one?
DPS has decided only to implement the surcharges for ARRESTS after September 1, 2003.
Letter is posted on Texas Criminal Defense Attorney site......
This is just so sad on so many levels. Short sighted decisions, knee-jerk reactions, threats, and lies. Sad.
The surcharge does not appear to apply to Juvenile adjudications. Section 708.102 makes sure the surcharge only applies to persons convicted of an "offense relating to the operating of a motor vehicle while intoxicated" and says that term is defined in Section 49.09 of the Penal Code.
Section 49.09(c)(1) defines that phrase to includes only those offenses under 49.04, 49.07, or 49.08 or their predecessors (art. 6701l-1 or 6701l-2).
The lack of any language relating to the adjudication of a juvenile for the commission of an offense under these sections appears to exempt them from the surcharge.
Note that the letter from DPS is not a final decision -- they are asking permission from the bill's sponsor to change the effective date of the act, basically. This is highly unusual, to say the least.
The TCDLA position is a bunch of bunk, in my opinion, but I don't think most prosecutors care one way or the other -- it's just important to know the final decision so that everyone can act accordingly. We'll update this post when a final decision is made.
Shannon, you are certainly correct that the TCDLA position that "the surcharge can not be interpreted as anything other than a punishment" is bunk. A similar argument was rejected even in California. Campbell v. Dept. of Motor Vehicles, 202 Cal.Rptr. 324 (1984), but see, Smith v. State, 474 N.E.2d 685 (Ohio App. 1984). The statute is, of course, clearly not a violation of the ex post facto clause for that very reason (as was decided in Texas at least as far back as 1961 in Cooley v. Texas Dept. of Public Safety). It is indeed hard to believe the DPS will so blatantly violate sec. 708.102(b), but I also cannot believe that Director Davis's declaration of intent will be changed at this point. I guess sec. 708.151 gives the department complete discretion, though, in determining "the date by which the surcharge must be paid". I think we do care though when the surcharge goes into effect because it will likely determine how soon the upcoming crippling clog of DWI cases in our courts develops.
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