Prosecutors altering charging decisions to avoid Driver Responsibility surcharge

Criticisms of Texas' Driver Responsibility Surcharge arose at a hearing of the Senate Criminal Justice Committee yesterday on DWI policy, and Mike Ward at the Statesman reports ("Overhaul of DWI laws may be coming," July 9) that "much of the criticism came from police and prosecutors — who in years past have championed many of the programs they now say are not working."

Peggy Fikac at the Houston Chronicle ("Houston lawmaker decries hefty DWI surcharge," July 9) wrote that:

[Chairman John] Whitmire, D-Houston, said lawmakers should modify and consider repealing the Driver Responsibility Program, which includes a surcharge of $1,000 annually for three years for first-time driving-while-intoxicated offenders. The many motorists who do not pay face suspension of their driver's licenses, which Whitmire and law officers said means more people on the road without licenses or insurance.

Christy Hoppe at the Dallas News reported ("Texas legislators explore changes to 'broken' drunken driving enforcement," July 9) that the surcharges have resulted in fewer plea deals for DWI:

Witnesses said stiff civil fines and mandatory punishments have prompted those arrested for driving while intoxicated to refuse plea deals and probation that could include treatment and alcohol monitoring. Instead, they are insisting on jury trials.

The result: more expensive prosecutions, a 20 percent drop in conviction rates since 2005, and a court backlog of 125,000 cases.

Further, the hearing addressed some of the unintended consequences of the DRP surcharge as relates to prosecutorial charging decisions. Again from Fikac::

Whitmire said in some cases, prosecutors are recognizing that the surcharges are "a burden they (defendants) can't meet and they're allowing them to plead to something other than DWI."

In Harris County, District Attorney Pat Lykos' office allows one accused of drunken driving for the first time to plead guilty to the DWI offense and get a strict probated sentence in which he receives treatment, performs community service and abides by other conditions, including a lock on his auto ignition that tests for alcohol use before he can drive. If he completes the program successfully, the conviction can be wiped from a motorist's record. That also allows the offender to avoid the surcharge.

"You've got to have a carrot to motivate these people, and you've got to keep the costs down," said Judge Jean Spradling Hughes, of Harris County Criminal Court at Law No. 15. "It doesn't ruin the rest of their life" the way a DWI conviction can, she added.

In Bexar County, District Attorney Susan Reed dealt with a backlog of cases by allowing first-time drunken-driving defendants who meet certain parameters to plead instead to a charge of "obstruction of a highway – intoxication." Defendants must undergo treatment and abide by conditions, including locks on their vehicles.

Reed said her goal was to get to offenders quickly and impose strict requirements because she believes that is the way to keep people from repeat drunken driving: "It's really got teeth in it for trying to stop the behavior." Besides avoiding the surcharge, she said, the absence of a formal DWI charge keeps people from possibly losing their jobs over the matter.

Whitmire voiced concern that allowing such a charge would hide a defendant's first drunken-driving offense, allowing him to avoid enhanced penalties if he offends again.

"We're losing a record of what that person's actual offense is," he said.

Sen. Kel Seliger of Amarillo thinks long DWI sentences may harm taxpayers more than the drunk driver, according to the Statesman's account:

"Right now, we take someone off the streets with a disease and put them in prison for five years," said state Sen. Kel Seliger, R-Amarillo. "When they get out, they still have that disease — we have a drunk driver with a record. The question is, when do the people of the state pay more for an offense than the person who committed it?"

Next week the Department of Public Safety will publish revised rules on the DRP program to create an indigency as well as (hopefully) amnesty and incentive programs to address the backlog of unpaid penalties. This program's extreme dysfunctionality warps every aspect of the justice system it touches, so I'm little surprised to learn it's altered plea practices and charging decisions for DWI as well as reduced the number of licensed, insured drivers on the road..

UPDATE: The Texas Tribune also covered the hearing and their coverage included this notable tidbit:

State District Judge Dib Waldrip, a former police officer and prosecutor in Comal County, encouraged lawmakers to treat repeat DWI offenses like mental health problems instead of criminal issues. In his court, Waldrip said he has good success with a program that seeks to "challenge" offenders to permanently change their behavior for the long term. Those who complete his years-long program, Waldrip said, are much less likely to land back in his court.

"The difference between the challenge court and normal probation is just remarkable," said Glenn Weinweber, a three-time DWI offender who has been in the Comal County program for two-and-a-half years. "It has certainly helped me."

Related:

• Driver Responsibility surcharge has 'devastating' effect on court system
• The "intractable problem" for prosecutors created by the Driver Responsibility surcharge 
• Driver surcharge boosting Texas joblessness 
• Unexplored costs from DPS surcharge harm safety, the economy
• Bill author says 'overly punitive' Driver responsibility surcharge a 'mistake'