Monday, December 27, 2010

Bill introduced that would end ban on deferred adjudication for DWI's

A bill has been introduced in the Texas Legislature to allow courts to place motorists accused of driving while intoxicated on deferred adjudication probation - a practice currently barred by statute.

The proposed legislation, HB 189, was authored by State Representative Todd Smith (R-Euless), would make the use of an interlock device mandatory for anyone placed on deferred adjudication for DWI. The bill would also add intoxication offenses to the list of crimes for which nondisclosure is not permitted.

Under the proposed legislation, a deferred adjudication for drunk driving would be counted as a conviction for enhancement purposes.

The bill has the support of MADD, who wants an end to the "masking" of DWI's by "reducing charges" to reckless driving, obstruction of a highway or public intoxication.
"Generally, we do not support deferred adjudication bills, but we are going to support this one. Right now, we are hearing that many cases are not getting prosecuted for DWI but for a bogus charge. We hope the practice of reducing charges will be reduced if this bill does indeed pass." -- Bill Lewis, MADD public policy liaison
According to the article in this morning's Houston Chronicle, when a house committee held a hearing on what to do about DWI's last August, there were over 122,000 cases pending throughout the state. Permitting courts to offer deferred adjudication on drunk driving cases should ease the pressure on prosecutors and courts throughout the state as it would give prosecutors and defense attorneys another tool with which to resolve cases.

It would also ease the financial burden on motorists since there would be no conviction for DWI, there would be no surcharge imposed.

My quibble with Rep. Smith's proposal is barring nondisclosure in DWI cases since law enforcement and state licensing agencies have access to the arrest records of defendants whose cases were disposed of through deferred adjudication.

While I think it unlikely at this juncture that the legislature would pass HB 189, the odd pairing of prosecutors, defense attorneys and MADD may very well be enough to get the proposed legislation before the fair-haired one.

4 comments:

blanfear said...

Comment and question: Texas Criminal Code 42.12 Section 5(c):

"...Except as provided by Section 12.42(g), Penal Code,
a dismissal and discharge under this section may not
be deemed a conviction for the purposes of disqualifications
or disabilities imposed by law for conviction of an offense..."

My question is HOW can they use it for enhancement purposes after a person completes his or her probation???

Houston DWI Attorney Paul B. Kennedy, said...

They can do it because that's what the statute says they can do. That's how domestic assault deferreds are treated. On the Class C side, alcohol offenses are treated that way.

blanfear said...

Paul sorry but after reading this I am really confused:
http://blog.bennettandbennett.com/2010/12/another-bad-dwi-idea-in-austin.html#more-3397

What about the fact that a DWI deferred would not, for purposes of Texas criminal law, be a conviction? The only real effect of a deferred not being a conviction is that it is not available for enhancement, as a conviction would be, if the accused gets charged with something else. The supporters of DWI deferred have a plan to wire around that: “[I]f they do reoffend, it can be used to enhance their punishment,” says Tarrant County prosecutor David Alpert.

blanfear said...

This is very confusing after reading this:

What about the fact that a DWI deferred would not, for purposes of Texas criminal law, be a conviction? The only real effect of a deferred not being a conviction is that it is not available for enhancement, as a conviction would be, if the accused gets charged with something else. The supporters of DWI deferred have a plan to wire around that: “[I]f they do reoffend, it can be used to enhance their punishment,” says Tarrant County prosecutor David Alpert.

http://blog.bennettandbennett.com/2010/12/another-bad-dwi-idea-in-austin.html#more-3397