When the dwi "surcharge" becomes effective on 01 Sep 03, i.e., $1000.00 per year for the next three years, etc., do I as a prosecutor have to inform the defendants of the surcharge when I explaining the range of punishment?? What if the judge thinks the defendant should be informed in order to get a "plea that is freely and voluntarily" entered??

The DL suspension (and fee required to avoid that) are clearly collateral consequences (though automatic) and need not be revealed by the court or the prosecutor.

The real issue will be, whether to render effective assistance, a defense attorney must have informed his client and whether there will be an unwritten requirement on this issue similar to art. 26.13 (h). We already have lots of situations where this issue could have arisen (e.g., sec. 521.341, 521.342, 521.344, 521.3465, 521.3466, 521.372, Transp. Code), yet I have not seen any of the underlying convictions overturned on this basis. But see Shankle, 59 S.W.3d at 762 and cf. Thompson, 59 S.W.3d at 807; Ruffin, 3 S.W.3d at 140.

The defendant's fees are a function of his wanting a DL. It is not a direct consequence of his conviction. So, there is no need to warn. Indeed, if we started warning about all the fees, costs, and collateral consequences of a conviction, we'd never get it right.

In The Perfect Plea, there is a section on whether there is constitutional requirement for admonitions about collateral consequences. See page 93 and following.

I try to refrain from posting but . . .

If I'm a misdemeanor prosecutor and I just pled 10 guys that morning in court to DWI probations plus a fine, I'm not going to sleep real well that night if I did not mention to them the "administrative fees". Those pro se guys, who trusted me to be up front and honest with them, will soon learn they owe DPS $3,000 in order to keep their driver's license. You can call it a "collateral consequence" all you want, but it is the equivalent of a "secret" $3,000 fine. It may be a collateral consequence, but when the fees are more than 50% higher than the maximum fine, it is a hell of a consequence to common man.

Barry, understand where you are coming from, but do you currently advise them the DWI conviction might affect their ability to get a job? Do you advise them of the amount of their probation fees? Do you advise them of the possible effects of a 2nd DWI? I mean we could think of lots of "consequences" that flow from criminal convictions that we as prosecutors are not required to and do not discuss with pro se defendants. Again, I admire you compassion, but won't your result just be that none of those guys plead guilty? So you try them, and they get convicted, and they still pay the $3,000 to keep their driver's license. And you are out the time and effort and cost of the trials.

Well, the Senate just addressed this issue about five minutes ago through an amendment to an amendment to SB 21, which is a clean-up bill for HB 3588, which created these new fees (is that clear as mud?).

Anyway, here's the scoop: a new admonition in CCP Art. 26.13(a)(6) that requires a court to warn a defendant of:

"(6) the fact that the state imposes additional fees or financial obligations on the defendant in connection with the plea and the amounts of those fees and financial obligations"

Note that this will apply to ALL cases, not just the ones affected by HB 3588. Anyone want to get to work tallying up all the "fees and financial obligations" that the state "imposes" in connection with every conviction?

Needless to say, this is all a surprise to us. How 'bout them apples?

All those things are maybe assessed "in connection with" the conviction (not the plea), so no admonishment is required. The admonishment requirement can be ignored because it is not constitutionally required and no defendant will ever be able to show he thought there were no other financial obligations associated with his decision. Was this a floor amendment, committee substitute, or what? Now I am convinced they give less thought to bills during a special session than the regular one.

This is a dirty bomb. What better way to put stink on every guilty plea in the state than to pass a requirement that is nearly impossible (and pointless) to meet.

Every defendant will contest the voluntariness of his guilty plea and many will gain a sympathetic ear.

The legislature, this past session, had to pass an entire bill trying to codify all the fees and financial obligations that exist in law, because no one could find them all. So, what better way to kill guilty pleas than to make judges tell a defendant all about them before the plea?

Make no mistake, If this amendment becomes law, it will create a nightmare in guilty pleas.

[This message was edited by John Bradley on 07-16-03 at .]

If the State can't be confident that the result of a plea of guilty will stand up if it no longer possible to have confidence in the admonishments being sufficient, is the lesson for the careful prosecutor - don't waive a jury? Take these admonishments out of the mix ...

Can we create a form (all rights are waivable except jury punishment in a death penalty case) - "I, defendant, waive my right to full and accurate admonishment as to the fees to be imposed as required by ..."?

Surely that is not what the legislature wishes to create ...

The House, by floor amendment, removed the language requiring an admonition on court costs. It remains to be seen whether it stays off. If the Senate concurs with the House change, it is gone.

While the House eventually passed its version of SB21 on the last day of the session, it never made it back to the Senate for consideration thus the proposed change to art. 26.13 is indeed gone for now.

Barry: the problem you hypothesize will likely not materialize. The Driver Responsibility Program will likely become well known to even the common man very soon. Things like that just do not stay hidden for long. Rather than worrying about disclosure of "secret fines", prosecutors will be forced for at least two years to worry about burgeoning demands for trials and a sharp increase in driving while license invalid arrests and a multitude of problems (collateral consequences) associated therewith.

Martin: I hope your right but I have my doubts. For example, how many folks know that a plea to "time served" for a PMJ will result in a driver's license suspension when driving had nothing to do with the offense? Heck, I'm still curious about the number of defense lawyers that don't know about the new "fees" for DWI. (I'd would guess a great number would fall into that category).

You are correct about the number of DWLS that will soon invade the system. If I read the statute correctly, a person that just drives with a suspended license in order to avoid the fees will be up a creek: his license will remain suspended until all fees are paid. Not many folks have three grand in their back pocket. (Make that six grand for the .16 or over crowd).

Yes, this is a touchy subject. But for those of us who take misdemeanor appointments, the burden is now going to be overwhelming. We take DWI appointments (of course in our county, making the whopping appointed fee of $75.00)and we KNOW the defendant has no kind of money to hire a lawyer. (As a side thought, no DWI lawyer in our town currently charges 3K that I know of) As defense counsel, we have an ethical duty to advise a defendant FULLY of his legal interests (collateral consequences and all - and my firm does). We tell them that no deferred is not available (of course we tell them that you have to be a offender such as a rapist, murderer, robber, person with a deadly weapon crime, and persons of that ilk to get such a great probation deal) and he is going to be convicted on the plea anyway, he'll probably want a trial now. Not that a trial every now and then doesn't keep us all on our toes, I shudder to think of all the jury trial requests that will burden our small, ill-financed, budget concious, "no raises for county employees" system.
But, heck, our legislators should not concern themselves with that, right?!

So - since this is going to be law, and those of us serving smaller jurisdictions on either side of the bar are going to have to live with it - what creative alternatives can we discover?

I have sent a letter to my local bar explaining the new charges, and suggesting that I am available to help move DWIs, DWLIs, and such if they would like to get moved before 9/1.

It wouldn't be so bad if we had a decent mass transit system - then loss of a license would not be quite as close to loss of employment. As it is, I'm afraid that the long term effect is going to be more drivers without licenses, who will also see no sense in having insurance - and we know where that will lead.

Lisa, I know in you jurisdiction, you deal with many pro se defendants as do I. I have prepared an acknowledgement that the defendant signs as part of the plea that addresses both a further license suspension possiblilty from the State and I have now included a paragraph to cover the surcharges. This has saved me the rash of angry calls I used to get from parents or defendants themselves claiming they were not told of these consequences. My form is very generic. Do you know if there is a form that goes into detail about these subjects that we could have the defendants sign? I have mine filed with the plea papers in the clerk's office to avoid any claim of ignorance by the defendant. I also require one be signed when a defendant is represented.
Mike Hartman

[This message was edited by mhartman on 08-07-03 at .]

I think we are on our own. I spend a considerable amount of time admonishing my pro se types, as does my judge, so we don't put any of that in writing or file it.

By the way - in listening to Diane and Lindsey yesterday, it seems to me that we may have a new plea bargaining tool. Wouldn't DWI at 13% be a lesser included of DWI at 17%? If we agree to stipulate to an under 16% BAC, we save the defendant $3000, at least some of which should be able to be transferred into fines......

Will it do any good to stipulate? How is DPS going to know what the test results were to begin with? My judgments do not contain that info and if they get it in some other form such as a log from the intoxilizer or the S.O. etc. we will have no control of that info before it gets to Austin. I agree the theory would be a good tool in moving cases if we can find a way to make it work. Of course, this assumes that we will continue to see the test being taken.

I am not going to assume they will do this but it seems to me all they need is a program that would cross reference the data stored on Breath tests with the data concerning convictions. So when they get info that G. Trichter has a DWI the hypothetical program could check and see if there is a breath test result under that name?

If that is the case, am I correct in saying that a stipulation that the BAC was below.16 would be useless as it relates to the surcharge imposed by DPS?

We are giving DPS a lot of credit to assume they are that organized but "hypothetically" they could do it if they keep such data basis and can search them. We really need a DPS person to log on and speak to these issues.