so we all know about the $1000 a year surcharge from dps for a dwi conviction. but my understanding is that surcharge raises to $1500 on either a second dwi or a breath test result more than twice the legal limit. is this correct?

also, from the perspective of dps, what do you need from the trial attorney to prove a second or twice the legal limit in order to enforce the higher surcharge? is it an affirmative finding akin to a deadly weapon made by the court/jury? do we have to allege and have the defendant plead to it in the information? something else?

See Trans. Code Sec. 708.102. $1500 per year for a DWI 2nd; $2,000 per year for 0.16 or higher.

We add a finding in the judgment as to the breath test or blood test result.

Surcharges are a great way to cut DWI convictions numbers in half.

I wonder if that was the original intent?

The intent was to balance the budget (on paper) at all costs. Maybe now that tax revenues are in better shape we can come up with something better.

The Kinkster will make it all better.

We discussed this at elected's conference when surcharge was first implemented. I distinctly remember the consensus of speakers..... prosecutors should not advise DWI defendant of the surcharge as it is a DPS program, not a DA/CA program. Recently I saw a plea packet from somewhere else which included the words "surcharge of $1,000 per year for three years." I've never informed a defendant of the surcharge. Is this now a some do/some don't deal?

Legally speaking, there is absolutely no constitutional requirement that a defendant be warned at the time of pleading about collateral consequences, which include costs arising from a conviction.

When was the last time you warned the defendant what the court cost was going to be?

I, too, have seen paperwork giving a defendant a warning about a surcharge. I'm neither that brave or smart.

By giving the warning, you take on the duty of getting the warning correct. As we have seen in connection with immigration and sex offender registration, it ain't that easy. We have seen the same problem crop up when a judge takes on the duty of telling a defendant when he is or is not eligible for probation. By adopting the duty, you create a greater likelihood that you will make a mistake and the defendant will rely on misinformation in making a decision about his case.

Furthermore, such practices are noticed by legislators and they start thinking what a swell idea it would be to put the requirement in law. We fought that fight with sex offender registration, and many of you have seen the litigation that results from failing to warn. Fortunately, last session, such litigation was mooted by amending the law to prevent a defendant from raising a sex offender registration warning issue on direct appeal or in a writ.

So, I agree, let DPS deal with surcharges. Do you volunteer to collect any other monies from your defendant? Property taxes? DL renewal fees? Income tax? Sales tax? Let it go!

Thanks, JB. I was pretty sure you were the one who gave us the sage advice before during one of your seminars.

Of course, the unfunded mandate resulting from initiation of the surcharge is a 70% increase in driving while license suspended/invalid/etc etc cases. An appeal to the Third Court was filed by one of our local defense attorneys asserting that the surcharge constituted double jeopardy. I don't think it is, but, it is likely the court will kick it out because of insufficient briefing by the attorney.

One thing the surcharges have accomplished is to make reading a driving record more complex than ever. Few of my officers even want to try anymore.

One was submitted this morning - no insurance ticket let to an SR suspension. Driver made installment agreements with both insurance and DPS. Defaulted on both due to incarceration. I wish there was a compete key to this complex code we are now expected to decipher....... (hint)

but when dps actually assesses the surcharge on someone's license, there must be some sort of administrative hearing at which the state (aka dps) must make some sort of affirmative showing to justify the surcharge, right?

what sort of evidence (J&S maybe) do you offer to meet that showing? i know most of our J&S's dont state whether there was a breath specimen provided or not and certainly dont include the specific result. what then? do you look at the information that was filed in the case? even our information's only state that the specimen was above a .08, which i dont imagine is sufficent to prove twice the legal limit.

what can we do to make your burden at the hearing easier?

The DL system is currently undergoing a major reconstruction, and there will probably be further changes after the next session due to the advent of the Real ID law that Congress passed. The result of the reengineering project is that DL histories are supposed to be much clearer and easier to understand. I don't know the timetable, but would guess late 2007 at the earliest. I have a list of the DL history codes relating to suspensions and DWLI. Let me know if you want a copy. However, I will be out of the office all next week.

Janette Ansolabehere
Senior Assistant General Counsel
DPS - Austin

Does anyone know the effect the Class C offense will have on surcharges and suspensions. I believe the old law required a one year suspension upon conviction and 750 surcharge over 3 years. Will this be the same for the new Class C if a conviction occurs?

DL histories are supposed to be clearer and easier to understand? Now, that's a goal worth announcing. All the legal training in the world doesn't prepare you for how to decipher a DL history.

A district judge in Virginia ruled that their DL tax fees violate the Equal Protection clause of the 14th Amendment because it punishes bad drivers who live in Virginia more than it punishes bad drivers that are just passing through.

Or at least thats how I understood the news article... its isn't very good: http://www.nbc12.com/home/8873042.html

quote:

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Originally posted by James H.:
Does anyone know the effect the Class C offense will have on surcharges and suspensions. I believe the old law required a one year suspension upon conviction and 750 surcharge over 3 years. Will this be the same for the new Class C if a conviction occurs?

---

The change to Class C shouldn't have any effect. The bill (HB 1623) did not amend the surcharge law (Trans. Code C. 708). There are also similar surcharges that apply to other Class C convictions.

Article Date: 8/1/2007

Title: Michigan, Texas Abuser Fees Face Challenge

Subtitle: Michigan and Texas legislators and attorneys are battling to repeal civil remedial fees.

The furor over Virginia's "civil remedial fees" (more info) has given hope to opponents of similar taxes in Michigan and Texas designed to raise revenue by imposing mandatory fees of between $100 and $7500 for various driving-related offenses.

Earlier this month, a bill to repeal Michigan's so-called driver responsibility fees was referred to the state Senate Transportation Committee. Introduced by state Senator John Gleason (D-Flushing), the bill would simply set a date for ending collection of the tax. Gleason's move reflects a growing realization that hefty fees bring even bigger headaches to the judicial system.

Three sitting district court and one circuit court judge testified before lawmakers about the issue last December. Each suggested that the short-term revenue gain was not worth the long-term damage done. The judges provided several examples of low-income motorists, stopped for the most minor of violations, who later found themselves in a financial trap from which they could not escape.

Under a typical scenario, Michigan's Secretary of State will suspend a driver's license if a single fee or tax is not paid, even if the bill had been mailed to the wrong address. When this happens, a motorist unwittingly driving under a suspended license, if stopped, faces a mandatory $1000 ticket tax on top of a $150 license reinstatement fee. Given the choice of feeding and housing one's family or paying the fine, many opt to pay the rent.

"When you turn law-abiding people into criminals, they lose all respect for the law," Judge Michael Jarreau testified. "I will almost never take a guilty plea for driving with a suspended license."

Governor Jennifer Granholm (D) is resisting efforts to repeal the fees as they have generated $397 million since 2004, of which amount less than $170 million has been collected.

That is why attorney Henry Guikema has taken his challenge to the law all the way to the Michigan Supreme Court. Justices are considering Guikema's appeal of a March 22 state appeals court ruling that found the fees legal. Guikema argues that while the state is raising millions in revenue, its methods violate the double jeopardy and equal protection clauses of the state constitution.

In Texas, many of the same problems have appeared, forcing state Senator Eliot Shapleigh (D-El Paso) on July 19 to ask the Senate Transportation Committee to hold public hearings on the issue. Shapleigh documented an explosion in the number of arrest warrants issued against El Paso motorists -- 59,429, or eleven percent of the city. An identical percentage of Austin motorists face arrest as well.

Some of the warrants were issued because of tickets for moving violations, including: 1130 failures to yield; 5382 traffic signal and stop sign violations; and 20,299 speeding tickets. The vast majority, however, were related to paperwork -- 30,387 for various licensing problems and 34,649 for expired insurance.

The Texas ticket tax tacks on an extra $300 in fees for anyone who accumulates 6 license demerit points. Other fees range up to $7500 for a second DUI offense. Not surprisingly, as in Michigan, many Texas motorists would rather accept an arrest warrant than skip out on paying other bills.

Local printer Joe Martinez, for example, was ticketed for driving with expired insurance. Because he was unable to come up with the cash to cover the initial $350 fine, he was thrown in jail. Now that he has paid, he still faces the $750 surcharge, and Martinez does not know where he is going to find that money. He cannot earn money if he cannot drive, and he fears being pulled over in a roadblock where papers are checked.

Again, like Michigan, the net effect for Texas has been a flood of revenue -- but not as much as anticipated. Since 2003, the state has billed drivers $850 million but collected only $275 million from the fees. In addition to Michigan, Texas and Virginia, New Jersey and New York also impose these fees.

http://www.thenewspaper.com/news/18/1890.asp

Armed With Checkbooks and Excuses, First Casualties of Va. Fees Go to Court

By Jonathan Mummolo
Washington Post Staff Writer
Sunday, August 12, 2007

The article

The labor pains were coming, so Jessica Hodges got going. The 26-year-old bank teller from Burke sped toward Inova Fairfax Hospital, but before she got there, the law got her -- 57 mph in a 35 zone. Reckless driving.

Hodges's labor pains subsided -- they turned out to be a false alarm -- but the agony from her ticket is mounting. She was found guilty of the July 3 offense and given a $1,050 civil fee on top of a judge-imposed $100 fine and court costs, making her one of the first to be hit with Virginia's new "abusive driver fees," which have been greeted by widespread public outrage.

"It's crazy," said an unregretful Hodges. "Having a baby's more important. Of course I'm going to speed."

Anger and exasperation have been common sentiments recently in Fairfax General District Court, where fee-facing drivers such as Hodges have started to join the daily swarm of traffic offenders. After waiting hours to give their side of the story to judges -- several of whom seemed just as annoyed with the fees as defendants -- many nevertheless left owing enormous sums that they said would be difficult to pay.

Those lucky enough to live out of state or to have been pulled over before the fees went into effect July 1 -- the "magic date," as one judge called it -- escaped the penalties, as did many who hired attorneys who were able to argue for lesser charges or continuances.

The fees, which range from $750 to $3,000, were passed by the General Assembly in the spring as part of a package aimed at funding scores of transportation projects. Backers said the fees would both raise money and improve highway safety by targeting the state's worst drivers -- those guilty of severe traffic offenses such as DUI, reckless driving and driving on a suspended license.

But the fees have since been vilified by an angry public (more than 170,000 people have signed an online petition to repeal them), denounced by lawmakers who once supported them and ruled unconstitutional by judges in two localities who said they violate equal protection rights guaranteed under the 14th Amendment. A Centreville man convicted of reckless driving filed a challenge to the fees in Arlington County General District Court on the same grounds.

Nonetheless, the penalties remain in effect, and offenders have started to feel their pinch. Melissa Norquest, 33, of Manassas shelled out $522 Tuesday after being found guilty of reckless driving for going 56 mph in a 35 mph zone July 3. She will pay the rest in installments.

Norquest took issue with a provision that exempts out-of-state drivers from paying the fees. If you don't live in Virginia, she said, "you just pay your l'il $100 fine and go on your way. . . . If they're going to make it for Virginia residents, they should also make it for whoever drives through Virginia or get rid of it completely. I mean, you want the whole state to be safe, right?"

Norquest, who works for Fairfax County Family Services, also said she did not see the point of hiring a lawyer at a cost of hundreds or thousands of dollars. "You're either paying for one or you're paying for the other," she said.

Defendants weren't the only ones grousing about the penalties.

"Quite frankly, these are going to be a major burden on the clerk's office," Judge Michael J. Cassidy said Monday while explaining the fees during his opening remarks to the crowded courtroom. "I realize that these might be a financial burden. . . . It was not the clerk's choice to impose these fees."

Bob Battle, a Richmond attorney who was in Fairfax traffic court Tuesday, said disapproval among judges is widespread.

"Judges, like other people, don't like them," he said. "Two have made it loud and clear, but so many of them out there are convinced that [the fees are] unconstitutional."

Battle said he thinks the fees are excessive. It's "sort of a kick-them-while-they're-down mentality," he said. "I think people who were charged with reckless driving, speeding or DUI were crazy not to have a lawyer before.. . . With a DUI defendant, you mean the potential year in jail, a $2,500 fine, at best a restricted license, the classes they have to go to, insurance wasn't a sufficient punishment?"

Because post-July 1 defendants make up only a small fraction of the caseload, it's too soon to determine what effect, if any, they will have on the judicial system, said Nancy Lake, Fairfax General District Court clerk. "I think it might have an effect in September, when most of the docket are these types of cases," she said.

Kathryn Bogush, 37, of Centreville caught a break in her case from a judge who amended her charge because she has a good driving record.

"Your [offense is] after that magic date of July 1," Judge Lisa A. Mayne said to Bogush, who was facing a reckless driving charge for going 80 mph in a 55 mph zone. "On the other hand, you have a plus-five driving record. I will take that into account."

Minutes later, a smiling Bogush was headed to the cashier after her charge was lowered to simple speeding, thereby avoiding the civil fee. "I was thankful she changed it," Bogush said.

Not everyone was so lucky. Upon hearing that he would have to pay the first $350 of his civil fee after being convicted of reckless driving, Samuel Ortez, 34, of Woodbridge, a truck driver and father of two from El Salvador, stared blankly for a moment outside the cashier's office, his eyes watering slightly.

"It's going to affect the bills," he said quietly in Spanish, his nephew Leo Ortez interpreting.

People who are unable to pay the first installment the day of their conviction are charged an additional $10 and are given 90 days to six months to pay, depending on the amount of the fee, Lake said.

Some, like Hodges, thought they had a legitimate excuse for speeding and would be able to get the charge lowered.

But when it came time to testify, Hodges said she felt rushed and couldn't adequately explain her situation to the judge, who found her guilty.

She said that she plans to appeal the decision.

She and her husband, Jeff, a massage therapist, barely go out and are living basically week-to-week to support 17-month-old Madison and infant Alessandra, born July 19, she said.

If the appeal is denied, her husband will probably have to work overtime, she said, but she's hoping a second judge will dismiss her case because of the circumstances.

"I'm getting out of here," Hodges said, "before I have to pay for any new roads."

My real issue is the fact that the vast majority of defendants do not contest their tickets. If they simply mail in the fine amount and recieve a conviction, will their license be suspended for a year without their knowledge assuming they don't recieve their mailed notices. This seems harsh to me.