Friday, October 08, 2010

Dumb on Crime: 'DWI-lite' suggestion lacks common sense

Texas has too many criminal laws, and one big reason is that whenever it becomes apparent that some existing statute is dysfunctional, the typical response by the Legislature is to create new crimes instead of fix problems with the existing code.

That's the ill-conceived suggestion from Austin Police Chief Art Acevedo, who wants to create a new crime - "Driving While Ability Impaired" - to go after drivers who've been drinking but whose blood alcohol content (BAC) is below the legal .08 limit, the Austin Statesman's Mike Ward reported yesterday.
Austin Police Chief Art Acevedo, among the supporters of the change, said the idea behind a new offense of "driving while ability impaired" — DWAI — would cover drivers whose blood-alcohol content is between 0.05 and 0.07.

That would be less than the 0.08 level required before police can charge a motorist with drunken driving.

A first-offense DWI is a Class B misdemeanor punishable by up to 180 days in jail and a $200 fine, plus potential driver's license restrictions. No specific penalty has been proposed for DWAI.

Though Acevedo said he does not support lowering the DWI limit below .08, "the new offense would give prosecutors and judges and juries another tool to use" in thwarting impaired drivers across the state. ...
The reason is that thousands of drivers arrested for DWI are being allowed to plead guilty to lesser crimes such as reckless driving or obstructing a roadway. Such plea deals allow them to escape alcohol counseling and driver's license restrictions, according to testimony before the Senate panel in July by police officials, prosecutors and judges.  ...
Of the 7,165 DWI cases filed in Travis County in 2009, 2,216 were dismissed, according to statistics provided by Austin police to the Senate committee. Court officials have said many of those pleaded to reduced charges.
The fly in the ointment here is that Acevedo fails to match his suggested solution to the ostensible problem. The reason many DWIs are allowed to plead guilty to lesser charges is simple and easily fixable: Prosecutors and judges across the state recognize that many defendants cannot pay the high Driver Responsibility Surcharge - $1,000 per year for three years on top of criminal penalties for a first DWI offense, going up from there - and so plead the cases to something more reasonable. Regular readers know that sometime soon the Department of Public Safety will release new rules creating Indigency and Amnesty programs for the Driver Responsibility Program, which may partially help the problem. Many legislators (and this writer) would like to see the DRP completely abolished.

Even Mothers Against Drunk Driving has admitted that surcharge doesn't reduce drunk driving: “We can't point to anything that says that law has caused a decline in alcohol-related fatalities,” their legislative liaison told the Houston Chronicle earlier this year. “We're not going to go nuts if the Legislature decides they want to repeal it.” When asked in a House Public Safety Committee hearing if the surcharge had reduced the number of DWIs or increased the number of Texas drivers with insurance, Department of Public Safety executive director Steve McCraw replied "No sir, not at all."

Focusing enforcement on those with lower BACs won't improve public safety. The reality is that the vast majority of drunk drivers in the .08 range get home safely. The average BAC for those involved in fatal accidents is .16, and most drivers involved in fatal accidents have BAC's much higher than .08. Given limited resources, enforcement should be targeted on those actually posing the greatest risk, which means those with high BAC. Pushing the range lower makes no sense: It's a solution looking for a problem.

There's also an issue of simple fairness: Right now, a DWI is already a Class B misdemeanor. Unless the proposed DWAI is made a Class C - which is a fine-only offense where jail time is not an option for punishment - this "DWI-lite" would create a new crime with the same punishment range as DWI for a lesser offense. If that's the goal, why not just reduce the blood alcohol content requirement from .08? We don't need ever-more crimes on the books, we need the thousands of statutes we have to work better. There are already other Class C charges on the books - reckless driving, for example - which may apply when drivers under the legal limit pose a threat to others.

I'll say it again: The solution to every social problem cannot be more criminal laws, more cops and more jails. Structural solutions like expanding public transportation would have a much greater impact.

MORE: From Paul Kennedy.


Anonymous said...

The penalty for a Class B misdemeanor is a fine of $2,000 (not $200) or (not and) confinement in jail for a term not to exceed 180 days, or both the fine and the confinement.

Anonymous said...

Reckless driving, under Section 545.401, Transportation Code, is not a Class C misdemeanor.

An offense under that section is a misdemeanor punishable by: (1) a fine not to exceed $200; (2) confinement in county jail for not more than 30 days; or (3) both the fine and the confinement.

Zeety said...

Expanding public transportation? I've had bus drivers refuse to let me board for no reason but that I had alchohol on my breath. This while the same bus system promotes service to sporting and other events where alcohol consumption (read: sales) are a big part of the attraction.

Sorry, I know it's not really the point of your post. I just wanted to vent.

Chris H said...

How about this...since the real world statistics don't warrant such a wide safety net on BAC...If you voluntarily install a breathalyser lock on your vehicle that is set at .1 or below and can be shown to be functioning properly at the time of arrest...then it's a defense to prosecution for DWI when the arresting BAC is below .1, otherwise BAC violation remains .08.

This will make people more aware of their impairment and prevent people from getting on the road under their own volition.

Don said...

Anon 9:23 What does this have to do with the DWI laws? It's two different codes. DWI is under the Criminal Code.

Don Dickson said...

I was surprised and disappointed by Chief Acevedo's proposal. We don't have a problem of people driving around with BACs of 0.05. We have a problem of dealing with people who get caught driving drunk.

1. Get rid of the silly surcharges.

2. Give every first offender a 3-7 day taste of life behind bars, so they know we're not kidding about this stuff. Make them attend extensive counseling or rehabilitation programs.

3. Give every repeat offender an ignition interlock device at government expense. Yes, I said at government expense. It sounds expensive, but it's going to be so much less expensive than arresting and prosecuting these people again and again.

BTW, here's a symptom of our screwed-up system, I keep hearing about cases that are "reduced" to obstruction or reckless driving. These offenses are in the same classification as a first-offense DWI. You're not "reducing" anything, all you're doing is avoiding the "civil" surcharges and the possibility of a DWI-2nd (or subsequent). I've even pleaded clients UP to the class A misdemeanor offense of "deadly conduct" just so they could qualify for deferred adjudication.

Chief's proposal will make the situation worse, not better.

Anonymous said...

Solutions looking for problems are why we have the ridiculous bills that become ridiculous laws. Has there ever been a legislative session when the consensus was,” things are looking pretty good, let’s just leave them the way they are and go home.”

The answer here and the answer to your blogger feeling the despair of hopelessness in reaching the ear of law makers regarding (the rise of debtor’s prison blog) is in term limits and in the limitation of public service period.

It is going to be forever impossible to seek out solutions when politicians are constantly looking for a platform to stand on so that they can campaign for the next election.

Two years and you’re out should be the mantra of every tax payer. Referendums by way of a public petition should be a lawful way to force government control back into the hands of citizens and away from special interests and the political process of coercion, manipulation, and self interest.

These lifelong champions of public service should be held in check to serve without lifelong compensation; ” thank you for your service here is a nice severance package that includes one check and an atta-boy or atta-girl; now go back to being a citizen because there is no more work or retirement here for you.”

The demagoguery of political ambition is tantamount to dancing bears or the bearded woman snake charmer, “she’s alive and inside and waiting for you.”

My guess is that Sheriff’s everywhere have solutions looking for a problem as well does every politician that hopes to stay in government office. And, how much they will be paid; how they will travel; what type of health care they will enjoy; how long they can stay in office, and the retirement package are no doubt always at the top of the list of things that need to be solved. (Limits would solve a great deal of problems that tax payers face).

Anonymous said...


What Grits said was, "There are already other Class C charges on the books - reckless driving, for example - which may apply when drivers under the legal limit pose a threat to others."

Reckless driving is defined by Sec. 545.401, Transportation Code, and a violation of that section is not a Class C misdemeanor because the penalty can include confinement in the county jail.

Sec. 12.23, Penal Code, prescribes the penalty for a Class C misdemeanor: "An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500."

And, by the way, the offense of DWI is contained in the Penal Code. Texas does have a Code of Criminal Procedure, but not a "criminal code."

Anonymous said...


A south Texas DWI cop agrees with you.

Gritsforbreakfast said...

9:23, your point is well taken. I was going by the fine amount but I agree the Class C is usually defined by no jail time. I guess reckless driving is some sort of hybrid.

Zeety, that's both sad and absurd. Was it CapMetro? They should be ashamed of themselves for promoting DWI.

11:26, I must admit, I'm not a big fan of term limits. It's a huge task to educate rookie legislators about the issues. A lot of these problems are so big and complex they take years to wrap your head around them. Two years and out would generate MORE ill-informed, reactionary laws, IMO. For me, it's not the lack of term limits that's the problem but gerrymandering that give us candidates tilting toward the extremes and refusing to compromise. (Witness voter ID last session.) Make districts competitive during redistricting would be my preference.

Donald, I'm totally with you on #3, in particular.

Prison Doc said...

I'm a big fan of the ignition interlock...a family member has had one and I tell him he should have to have it for life. Sure makes me sleep better. Currently quite costly to maintain--almost $100/month but cheaper than the alternative.

B.A. said...

“Of the 7,165 DWI cases filed in Travis County in 2009, 2,216 were dismissed, according to statistics provided by Austin police to the Senate committee.” ….... OK, it’s time for a very simple refresher course in basic math, which we all should have known before being passed to at least the 5th grade.

7165 (cases filed ) – 2216 (cases dismissed) = 4949

Now, “high Driver Responsibility Surcharge - $1,000 per year”

4949 x $1000 (PER YEAR) =$4,949,000.00 (yes that in millions)

Now, “for three years on top of criminal penalties for a first DWI offense”

4,949,000.00 (per year surcharges) X 3 (years) = TOTAL $14,847,000.00(yes that millions in surcharges)

Now that is the best case scenario figures for the prosecutors in Travis County providing that all of the 4949 people or cased plea out. Now one more math lesson ………

14,847,000.00 X 3 years = $44,541,000.00 (yes that millions)

Point being this ……..if you take one county in the state in this case being Travis County alone for the year of 2009 with those math figures……..assume that the cases are only increasing by the propaganda of “we need to be tougher” ………..That means this cycle of surcharges will only repeat itself and get higher each year ……..Don’t forget that’s only one county in this state…….The surcharges are going no where they do not stop DWI fatal crashes and what I like to label as a “non-conforming tax” ……it does not stop the DWI problem ….. getting stricter has not stopped it and has became a “Cash Cow” for everyone involved with “ surcharges”, “attorney fees”, “expert witness review”, “MADD” to buy more bumper stickers, etc, etc, etc!!!!

Oh by the way I am glad I do not live in Travis County with those stats and you show me a drunk with a fist full of 100's for the State of Texas and I show you a hooker that will work for pro-bono!

Don said...

9:23 ---OK. So what does semantics have to do with the DWI laws, then? Good Grief! Anyway, Donald, who apparently is an attorney, says "
obstruction and "reckless driving" are in the same classification as DWI I. Is it possible that there is a "reckless driving" in both the Transportation Code and the, let me get this correct now, the "Penal Code"? Just askin'. . . Grits was referring to article. The police chief was the one who used "reckless driving" as a way lawyers "plead their clients down", along with "obstructing a roadway", which for sure is a Class B misdemeanor under the Penal Code.
To Anonymous 11:26 Your post is absolutely on target. I agree wholeheartedly, except for the "extensive counseling or rehabilitation programs". They should be for people who demonstrate a drinking problem. Many DWI first offenders don't do that. We already require that they take the Texas DWI Education Program, which screens and suggests counseling if indicated. I provide both the Texas DWI Education Program, (1st offense) and Texas DWI Intervention Program, (2 or more), and am also a Licensed Chemical Dependency Counselor. Many first offenders don't need "rehabilitation". But the 3 days behind bars might get their attention. But it's not fair to counselors to force someone into their programs who don't really meet their criteria. I had enough of that stuff with the CSCD's.

Richard said...

"Anonymous said...

A south Texas DWI cop agrees with you.

10/08/2010 05:09:00 PM"

A police officer strictly for DWI's?
That's pathetic. I guess he is too dumb to catch the real criminals. He'd rather arrest your daughter than the illegal alien he let run across the border that will rape her. WOW!

CHRIS H- Where did you get that information about privately owned interlock systems?

Anonymous said...

A lot of folks think it's cool to drink and drive. They have never looked into the effect that even one or two drink has on driving performance (look it up) much less 4 or 5 or 10.

Before blaming the laws or the cops, realize that you don't have to drink and drive. It's your choice.

Chris H said...

I was suggesting a way to deal with the issue using common sense. I was not suggesting that it is currently the law.

Anonymous said...

It's bullshit in every angle you look at it. Invest wisely in public transportation, light rail and so forth and be done with it. These laws are as outdated as our means of safe public transportation. In Dallas, we have it down, but all the idiots in Austin.... well, the ship's out to sea, and your on shore, time to get on the stick.

Anonymous said...

The price of a DWI surcharge 1st time

The price of a CZ-USA CZ550 Counter Sniper 308

The fall of tyranny in Texas