A backlog of thousands of Texas court cases. Drunken drivers convicted on lesser charges. Repeat DWI offenders who don't have a record of a related conviction or treatment.

Those are some examples of what's bringing together a new coalition that includes Mother s Against Drunk Driving, prosecutors and defense attorneys who support a widespread change in how the state punishes first-time drunken drivers.

Details.

I'm looking forward to the change. I assume it doesn't address the driver responsibility program surcharge.

I don't know about that defense attorney part... When I brought this topic up around here two years ago, a local defense attorney OPPOSED the idea of deferred for 1st-time DWI offenders - in spite of the fact that he and others routinely argue against DWI convictions. Why? Because it would CUT INTO HIS PROFITS if deferred were allowed. More people might just handle their own cases without hiring him.

Not that I don't get the need to make a living, but still.

What I'm afraid of is that people will get DWI "firsts" over and over so they can get the deferred.

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Originally posted by Abdul Farukhi:
I'm looking forward to the change. I assume it doesn't address the driver responsibility program surcharge.

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It doesn't--yet--but only because there is no consensus on how to address the issue. But it will have to eventually. Ultimately, that is what will pass or kill this bill. It always comes down to money, doesn't it?

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Originally posted by jane starnes:
What I'm afraid of is that people will get DWI "firsts" over and over so they can get the deferred.

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How would that be worse than the current situation, where defendants often plead out to non-DWI offenses that are un-enhanceable in the future?

And then get the original DWI arrest expunged!

As I read the bill (HB 189) put forward by Rep. Todd Smith, a deferred DWI would still be treated as a conviction for DWI 2nds, 3rds, etc. So isn't that fear of multiple 1sts a little unfounded?

One major problem that the bill still needs to address is the current backlog of cases. The bill as written only applies to DWIs committed after the date it goes into effect. That's good, but what about the enormous glut of DWIs I currently have pending. If the law doesn't make a deferred offer available for old cases, then we haven't been given the tools to deal with a backlog, we've only stopped it from getting bigger.

I think the legislature should make this punishment retroactive for old cases. What do y'all think?

And what do you say to all the defendants identically situated who already have been convicted for misdemeanor DWI? Are you also willing to undo that work (even those that went to jury trial) and hand out deferred?

In general, new punishment ranges and community supervision changes have been applied prospectively. That has been done to avoid any ex post facto challenges and to treat everyone equally as to date of offense and effective date of new law.

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Originally posted by andersondamisd:
I think the legislature should make this punishment retroactive for old cases. What do y'all think?

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That could be done, but there is another downside: Once bills like that pass in May, no defense lawyer worth his salt will plead a DWI defendant until the bill goes into effect, which is usually on Sept. 1 of that particular year. If you think your docket is bad now, wait until NO DWI cases move for 3-4 months!

(This would be the reverse of the surcharge effect, which led to defendants begging to plead before they went into effect in 2003. Bills like these that create new incentives for a particular action are an economist's dream.)

p.s. - welcome to the user forum; keep the good comments coming!

What I foresee as problematic is using these deferreds for enhancements and tracking down the correct paperwork. The benefit to the defendant is to avail himself of the possibility of having the deferred completely discharged and remove his plea as the code says the judge can do in deferreds. I've never actually seen it happen, but the defense will argue in every case that it did in their particular case.

I used to get that when I was a misdemeanor prosecutor--a lot of arguing about the discharge order signed by the judge. Some of them had weird language and they tried to argue that it was not enhanceable because the discharge paperwork said so (and those were not even deferreds).

The surcharge attaches for deferred and not for firsts pled to jail or regular probation? The folk who take jail time on a first generally can't afford the surcharge anyway...

Lisa L. Peterson
Nolan County Attorney

The deferred/enhancement process is not new. It originated years ago when the Leg deemed a prior deferred for a sex offense a "conviction" for the purpose of assigning an automatic life sentence for a repeat sex offender.

And, not so long ago, the Leg applied the concept to family violence assaults, making a second-offender a felony. We haven't seen any problems in getting records of a deferred.

Case law makes it clear that the dismissal of a deferred upon successful completion doesn't prevent the use of that deferred for an enhancement. Yes, defense lawyers occasionally try to bamboozle some judge into thinking it can't be done. A writ of mandamus or direct appeal sometimes follows.

All in all, it has worked well and should work well for a DWI.

Should the deferred be subject to a order of non-disclosure? Currently the bill specifically disallows that for a Deferred DWI. What's the point of having a deferred if everyone's going to be able to find out about it anyway?

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Originally posted by andersondamisd:
What's the point of having a deferred if everyone's going to be able to find out about it anyway?

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That was requested by MADD, not prosecutors. That being said ... does ineligibility for non-disclosure stop people from taking deferred adjudication for family violence assaults or sex crimes, which also cannot be sealed?

I didn't think so.

Why would DWI be different?

Also, a deferred is not a conviction for surcharge purposes. That'll save a defendant $3,000 right off the bat (or something up to but less than that, depending upon the state's budgetary needs). It could also help avoid or reduce auto insurance increases (depending upon their carrier).

Does the bill address how the blood draw statute will treat a D/A DWI?

I would think that a certain DA's office would want to make sure that a "conviction" would be considered when determining if blood can be drawn without a warrant.

Sorry to buck the party line, but I'm not crazy about the idea of deferreds for DWIs. It makes me mad that the news is already reporting that "it won't be on your record." We need to look at what's behind prosecutors making reductions to non-DWI charges like reckless driving or obstructing a highway. Is it because there's no blood or breath and the case is not proveable? We need to do more "no refusal" enforcements and strengthen our ability to collect blood and breath and therefore have stronger more prosecutable cases. The mandatory blood draw law has been a huge help for felony cases. I know there are some defendants who will pay for a trial no matter what the evidence is, but I'll bet a lot of people would plead if there was blood or breath in their first DWI.

There have been 11 "no refusal" weekends here since May 2008, when the Bexar County district attorney's office first deployed the legal machinery that allows authorities to draw blood from drunken-driving suspects whether they agree or not.
More than 2 1/2 years later, the county is primed to implement the policy full time, District Attorney Susan Reed said.

Details.

[Jane, looks like at least one big-city DA agrees with you. And, of course, you are correct. The real reason for the backlog is the weak Texas law permitting drunks to hide scientific evidence of their intoxication. However, for now, the Leg is very unlikely to expand mandatory blood to first offenders, perhaps because they see such a law could impact them and their own. So, realizing that politics is ultimately about what is practical, restoring deferred to first-offender DWI may be the best way to bridge that gap for now. And, I note that Jane only prosecutes felony DWI cases. Although, I am sure she would volunteer to assist any of you in your misdemeanor cases.]