Monday, January 10, 2011

Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge

In the Senate Criminal Justice Committee's recent report (pdf, pp. 22-23) was this reference to what I thought was fascinating testimony from Judge David Hodges, Judicial Liaison for the Texas Center for the Judiciary, on the relationship between the Driver Responsibility surcharge and declining DWI conviction rates in Texas:
Judge David Hodges, Judicial Liaison, Texas Center for the Judiciary, provided that the most pressing legislative issue with DWI cases is to eliminate or substantially reduce the license renewal surcharges that is imposed on DWI convictions by the Driver's Responsibility law. Since imposing these surcharges: Conviction rates have decreased every year; in 2005, 99,501 DWI arrest resulted in 63,132 convictions. In 2009, 102,309 DWI arrest resulted in 44,777 convictions. Dismissal rates have increased every year; DWI cases are prosecuted as reckless driving, obstruction of highway, and public intoxication, in order to avoid the civil penalty.

Courts' pending caseload has gone up significantly- an increase of approximately 25,000 cases. At the current statewide trial capacity, it would take 16 years to dispose of these cases, if they all demand a trial. These surcharges are not changing behavior, not being collected, and are creating a new class of criminals each day by adding to the 1.2 million unlicensed and uninsured drivers in the state.

Judge Hodges proceeded to address the significant decline in the number of DWI defendants being placed on probation. The decline being a result of all incentives to accept probation having been removed from the DWI statutes. It has become a much more viable option for defendants to simply accept a jail term, which can then be discharged through three for one credit in overcrowded county jails. Lost in this process is the opportunity to change the future behavior of those DWI defendants who are likely to re-offend. Statistically, at least one third of first offenders will re-offend, and a much higher percentage of second offenders will commit a third and subsequent offenses. The ability of trial judges to grant deferred adjudication and early release for completion of all terms of probation as well as when a defendant is no longer a concern to the public safety, as in all other criminal cases, should be restored.

Judge Hodges also called for their elimination of the current system of driver's license suspensions (ALR) and special need licenses. Only those currently required by federal law should be retained, with those being placed in one statue.

Concerning the mandated DWI education course, and the repeat offenders DWI education course (both required for receiving certain federal funds), Judge Hodges stated they are not effective and suggested that the curriculum be reviewed and rewritten to incorporate adult learning and cognitive education principles.
Correlation is not causation, but what a massive drop in DWI conviction rates - from 63.5% in 2005 to 43.8% in 2009 - in the years following implementation of the Driver Responsibility surcharge. That's a 31% decrease in conviction rates statewide! And according to anecdotal evidence from testimony at the Senate hearing described in the report, the surcharge is the biggest factor in the decline, causing defendants to be less likely to take plea deals and prosecutors and judges to question whether justice is served by applying civil penalties on top of criminal ones.

State Rep. Leo Berman has filed HB 299 to abolish the surcharge, and I see no reason why that bill shouldn't enjoy broad, bipartisan support. The Senate Criminal Justice Committee's report makes a strong argument why even those backing harsher criminal punishments for DWI should want to get rid of this unworkable civil surcharge: The justice system can't punish defendants unless they're convicted, after all.

RELATED: DPS announces rollout of amnesty, indigence programs for Driver Responsibility surcharge


Don said...

As a Licensed Chemical Dependency Counselor for 24 years, mostly around the Criminal Justice? System, I can't disagree with much of what Judge Hodges says. I also provide the Texas DWI Education Program, and the Texas DWI Intervention Program. There is some evidence that the DWI Education Program reduces recidivism, but it is from a study done by what was then the Texas Commission on Alcohol and Drug Abuse (TCADA), several years ago. So I don't know that it wasn't biased. Anyway, the programs have not been updated in years, and only tweaked then. They are out of date, and I agree with the Judge that they need to be reviewed and rewritten. There also needs to be tighter restrictions on who is certified to teach them. However, the program oversight at Texas Department of State Health Services is already underfunded, so without some additional funding help, they are not likely to be able to do that.

Mike Howard said...

The surcharge has to go. And deferred for DWI must be passed. Just from a judicial economy standpoint, if my client is charged with a DWI, no matter how good or bad his case is, I'm going to recommend he set the case for trial. At least at that point he has the chance of a not guilty. If he loses at trial, he'll almost certainly get probation anyways. The only loser here is the taxpayer with clogged dockets and an ineffectual court system.

What we need is a stream-lined system where only truly trial worthy cases are tried. If it's a close call, then by all means, tee it up for trial. But don't create a legal landscape where the trial attorney and the defendant feel their only viable option is to try the case. That just doesn't make sense. Especially in a system where 95%/+ of cases are designed to plead.

Anonymous said...

The surcharge for DWI offenders is a complete JOKE. This is just another example of how the State of Texas makes money off of convicted Felons. I spent three years day for day in TDCJ, for a NON VIOLENT,NON AGGRESIVE, DWI Sentence. When I was released I had to pay $3,639.00 (Which was paid all at once) in SURCHARGE FINES, show proof of insurance, and take a 30 hour REPEAT DWI OFFENDER COURSE,and have a IGNITION INTERLOCK DEVICE installed in my vehicle ALL AT MY EXPENSE, just to obtain my Texas Driver License. NOW all of the sudden DPS has come out with an AMENSTY PROGRAM TO HELP INDIGENT OFFENDERS OBTAIN THEIR TEXAS DRIVERS LICENSE'S BECAUSE NO ONE IS ABLE TO PAY THEIR SURCHARGE FEES Tell me WHERE IS THE JUSTICE IN THAT? Driving is a PRIVELEGE in the STATE OF TEXAS. I paid the FULL AMOUNT WHY DON'T THEY or IS DPS GOING TO REFUND MY MONEY TO ME?????? I hardly doubt so.