Lege ponders effect of 'Driver Responsibility' surcharge on DWI convictions

The Texas House Homeland Security and Public Safety Committee yesterday met to discuss suggested reforms to the misnamed "Driver Responsibility Program" (in addition to hearing invited testimony about the fertilizer plant explosion in West last year). See coverage of the hearing from the Houston Chronicle, the El Paso Times, and the Texas Tribune.

Your correspondent and numerous others have been trying to get the Legislature to reform or preferably abolish this program for years, but this may be the first time a legislative committee has fully embraced the idea that major revisions are necessary and the program may need to be scrapped. You can watch the hearing online here. The portion on the Driver Responsibility surcharge begins at the 2:21:45 mark.

Here's a link to written testimony I presented on behalf of the Texas Criminal Justice Coalition and a report on the topic (pdf) that the group published last year. TCJC has put up a website advocating abolition of the Driver Responsibility surcharge to provide background and gather stories from people who've experienced problems with this misbegotten policy. Check it out and, for those affected, add your story.

First up at the hearing were two representatives from DPS described a range of suggestions for reforms developed in a working group with their vendor and reps from the Travis County courts. Grits last year acquired their list of recommendations under open records. See it here (pdf). A few of their suggestions can be implemented administratively without legislative authorization and some of them will be included in new rules that will be presented in June to the Public Safety Commission and published in the Texas Register soon thereafter for public comment. Most of the significant changes, though, would require legislative action.

Even Bill Lewis of Mothers Against Drunk Driving spoke favorably about TCJC's written testimony (see his remarks at the 3:23:50 mark), which overall seemed well received by the members. He supports the surcharge because part of it pays for uncompensated care at trauma centers in Texas hospitals, which play a huge role in saving drunk driving victims. But he was open to subsidizing hospitals in other ways - e.g., potentially a small, additional dedicated tax on alcohol. He acknowledged that the surcharge has no deterrent effect on DWIs, in part because nobody knows about it (he called it "virtually a secret program"). Others testifying reiterated that most drivers know nothing about the program and many people pay tickets for no driver's license or no insurance without understanding they'll later face three years of surcharges. Lewis suggested that judges be given flexibility to reduce or waive surcharges in DWI cases.

One unintended consequence to the surcharge received more attention at yesterday's hearing than it has in the past, though the problem has been ongoing: Judges and prosecutors who consider the surcharges unjust have been allowing defendants charged with DWI to plead to lesser charges to avoid them. Rebekah Hibbs of DPS told the committee about a county that called them to ask if the charge of "obstruction of a roadway" carried a surcharge. She told them "no" and they replied that, in that case, they were going to begin pleading all their first offense DWIs to that charge to keep the surcharge from applying.

Retired Judge David Hodges (see his testimony @ 4:08:55), who now conducts training for judges on behalf of the Texas Association of Counties, told the committee that the surcharge law caused a 30% reduction in DWI convictions from 2003 to 2013, even though the number of arrests for DWI has increased. He said an officer from the Bryan-College Station area told him just last week that first-offense DWIs in his county were being charged as obstruction of a roadway for just that reason. Hodges suggested that, if the surcharge were eliminated, the state would likely see more additional fine and court cost revenue from DWI cases than it was gaining from the surcharge, suggesting that some of that money could be designated for trauma centers.

Hodges also suggested that reinstating deferred adjudication for DWIs might help the situation, since deferred cases don't formally result in a conviction and thus wouldn't incur a surcharge. Deferred adjudication was eliminated for DWIs a few years back in one of the Lege's reflexive spasms of tuff-on-crime demagoguery.

MADD's Bill Lewis offered particularly remarkable testimony regarding the surcharge-driven decline in DWI convictions, declaring that his group "agree[s] that DWI surcharges may actually hinder DWI prosecution." But, said Lewis, "when you get right back down to it, we've made the judgment that it's more important for the trauma centers to be there and to be well funded than it is to be disposing of DWI cases." Just think about that! The idea that MADD is willing to tolerate fewer successful prosecutions for DWI to keep trauma hospitals funded struck me as downright amazing. Obviously, he'd prefer those cases were successfully prosecuted, referring to the account of counties pleading the charges down as "horror stories." The surcharge has placed MADD in a Catch-22 situation, forcing them to choose between prosecuting drunk drivers and maintaining a robust trauma care system to deal with the aftermath of crashes caused by drunk driving.

But the star of the show was Williamson County Justice of the Peace Edna Staudt (@ 3:34:36 on the video), who launched an impassioned jeremiad against every aspect of the program. Of all the speakers, including those from the hospitals, she was the only one who refused to offer reform suggestions, insisting that the program was so badly broken that nothing but abolition would suffice. "This program creates more havoc and more mess than its worth," she told the committee. "It is an unjust system."

She told the committee that the income thresholds on the indigency and incentive programs were too low to help average, working people who still couldn't afford to pay their surcharges and needed driver's licenses to be able to work and feed their families. She also complained that the surcharge usurped judicial authority and was creating a "debtors prison" situation where people who couldn't pay would lose their licenses, then later be charged with a crime for not having a license and end up in jail. Suggestions by DPS to crack down even harder for nonpayment of surcharges, she said, would make the situation even worse.

The truth is, Judge Staudt is 100% right. TCJC offered suggestions to mitigate harms because the Lege has been unwilling to confront the issue head on. But even in our written testimony, we emphasized that, "The Texas Criminal Justice Coalition hesitates to suggest reforms that might make the Driver Responsibility surcharge sustainable, even temporarily, because the program is fundamentally unfair and suffers from deep, abiding flaws. The Legislature should eliminate it entirely and pay for trauma hospitals out of general fund revenue or some other source."

The only serious pushback against reform at this point comes from trauma hospitals that receive millions in funding from the surcharge. Their situation has become even more tenuous after the state refused to expand the Medicaid program under the federal Affordable Care Act, as they're losing millions because of reductions in Disproportionate Share Hospital funding that pays for uncompensated care. (The ACA reduced that funding on the grounds that Medicaid expansion would cover most of those uninsured patients.) So if the Legislature were to abolish this program, they'd need to find an alternative funding source to subsidize trauma hospitals. Chairman Picket likened the task to the scene from Raiders of the Lost Ark where Indiana Jones swapped a bag of sand for an idol, but said it needed to be done in such a way that did not result in a giant stone ball hurtling toward their backs.

Even the hospital reps, though, acknowledged that changes must be made to address unintended consequences facing drives, supporting a more robust Amnesty program and other reforms tinkering around the edges of the program. From my own, private conversations with the hospital folks, it's clear to me they wouldn't mind if the surcharge went away entirely so long as they continued to receive subsidies for uncompensated care. They just can't afford to lose the surcharge money at a time when federal subsidies for uncompensated care are being cut and the state seems unlikely to expand Medicaid anytime soon.

Grits was cautiously encouraged by the committee's reaction to yesterday's testimony. For perhaps the first time, this committee seems to have fully grasped the profound failings of the Driver Responsibility surcharge and appears to be forging a consensus that it must be either eliminated or subjected to radical reform. The main barrier to abolition will be finding money for the trauma hospitals, but that's not insurmountable. As I told the committee, the program is "a train wreck" and even its supporters can see it's not viable in its current form.

MORE (April 16): See an El Paso Times staff editorial advocating abolition of the program.They conclude, "Clearly, the Driver Responsibility Program is a failure. The Legislature should acknowledge that and repeal the law next year."

See prior, related Grits posts:

• Could Texas Driver Responsibility Surcharge become an election issue? Examining reform suggestions 
• DPS announces 'incentive program' rollout on driver surcharges
• Be thankful: Incentive program all the fix we're getting for now on surcharges
• Lege committee looking to tweak Driver Responsibility program; incentive program about to gear up
• Piling on: TPPF offers more reasons to abolish Driver Responsibility surcharge
• House rep promotes abolition of Driver Responsibility surcharge
• Is 2013 the year legislators axe Orwellian-named Driver Responsibility surcharge?
• Did the Driver Responsibility Surcharge cause Texas' voter ID law to be rejected?
• Few defendants getting surcharges waived by judges based on indigence
• Grits to DPS: Enact incentive rules for Driver Responsibility surcharge now
• Amendment tells DPS: Implement incentive rules for Driver Responsibility surcharge
• Hospitals: Driver Responsibility surcharge an unreliable funding source
• What's the one thing John Whitmire and Leo Berman have in common?
• Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge
• Federal suit filed to declare Driver Responsibility surcharge unconstitutional
• DPS Director: No public safety benefit from Driver Responsibility Surcharge
• Prosecutors altering charging decisions to avoid Driver Responsibility surcharge
• Driver surcharge boosting Texas joblessness
• Unexplored costs from DPS surcharge harm safety, the economy
• Driver Responsibility surcharge 'devastating' for court system
• Bill author says 'overly punitive' Driver Responsibility surcharge a 'mistake'