Even prosecutors want penalty reduced for driving with suspended license

Here's a prime example of a penalty so disproportionate even some prosecutors think it's too high: A Class B misdemeanor for driving with a suspended license on the first offense, plus a stiff "surcharge" that many drivers can't pay. Since the law was changed in 2003, these petty cases have been filling up the county jails at a remarkable rate. See the recent discussion on their user forum about the topic. A Potter County prosecutor replied to the initial poster,

We're stuffed to the gills with 'em. Our jail is threatening to refuse any non-warrant book-ins, and our friend the DWLI is a substantial contributor to the overcrowding that's driving the threat.

At the same time, the offense is largely part of a cycle driven by the crime tax ... er, surcharge. Given the figures I've heard Shannon pass along, we can safely presume it's not going away. Given that facet of the problem, and the fact that all license-related offenses seem to be viewed as fertile ground for surcharges, would we simply be shifting the trial burden down a judicial level? Do you posters and lurkers think that JPs will rise up in righteous indignation over such a proposed cramdown onto their dockets?

The public defender blogger at The Wretched of the Earth has been all over this topic, and the Austin Criminal Defense Lawyer recently covered it. On the user forum, more prosecutors agreed that a B misdemeanor is overkill, but their lobbyist Shannon Edmonds quickly took the wind out of their sails:

Some legislators have been sympathetic to changing the Driver Responsibility Program until they learn that the program is putting $3 million per week into the state coffers. That's real money, even around the Capitol!

Like you, Joel, I hear lots of people discussing the option of making DWLI a Class C, but so far no one has taken it to the next step and filed a bill. Until that happens, it's all just idle chatter.

Well, somebody needs to file such a bill. If there was ever a time when the Lege might take such a dramatic step, maybe it's when they're faced with supposedly record surpluses. (Whoops, so much for the surplus.)

There's no question $3 million per week IS a lot of money, but it comes with a potentially bigger price: A huge unfunded mandate on counties to arrest and incarcerate these low-level non-violent offenders, essentially making them debt collectors for the state. Not only must counties pay the costs of incarceration for those who can't make bail (and if they can't pay their surcharge, why would you think they could make bail?), but since B misdemeanors carry the risk of jail time the county must also provide indigent defendants with free legal counsel. As one influential state legislator and former prosecutor told the Statesman last year,

State Rep. Dan Gattis, R-Georgetown, said the onslaught of invalid driver's license cases is a statewide issue that should be addressed by the Legislature.

Gattis voted for the bill that included the program, but he said it might have had some unintended consequences, especially when the cost of jail stays and courtroom resources are added up.

"The concern that I have is that it's a good intentions deal," Gattis said. "Even though it may have good intentions, the reporting may be costing us more than what we're gaining."

A solution to the courtroom congestion isn't clear. Some officials say the surcharges should be repealed, and others say the violations should be Class C misdemeanors, like other traffic violations, and handled through municipal courts.

Currently, driving with an invalid or suspended license is a Class B misdemeanor for a first offense and a Class A misdemeanor for a second offense.

Clearly ratcheting down the penalties on the first and second offense is the only logical conclusion. The law right now is actually making the problem of unlicensed drivers worse. See below examples of how the 2003 changes to this law actually increased the number of people driving with suspended licenses instead of reducing the problem since the law was enacted: