Proponents of HB 189, which would allow for deferred adjudication in DWI cases, are not supporting the bill our of the goodness of their hearts. They aren't supporting the bill because they believe that motorists accused of drunk driving deserve a second chance. They aren't supporting it because they came to the realization that the penalties imposed for DWI in Texas are out of proportion to the seriousness of the offense.
Currently a motorist accused of driving while intoxicated has two choices -- plead the case or take it to trial. In some counties the threat of trying the case is enough to receive an offer of a plea to a "reduced" charge of reckless driving or obstruction of a highway. In Harris County, if you have a clear record and no mental health issues you can enter the DIVERT program - if you can stomach the requirements and believe the promised result.
Due to the sheer volume of DWI cases around the state, prosecutors are doing what they can to reduce trial dockets and this means, in many counties, doing whatever it takes to get that DWI case off the books.
Casting aside, for the moment, the fact that DWI is an opinion crime and that the vast majority of motorists charged with drunk driving did nothing more than commit a minor traffic offense, imposing ridiculously high surcharges and license suspensions all because a motorist failed to signal a lane change and had alcohol on his breath is beyond absurd. Motorists should be given another option to resolve their cases.
The fact is the majority of drunk driving cases are very triable. Generally the worst possible outcome for a first-time offender is a lengthy probation and an ignition interlock device. Absent some very bad facts or intervening circumstances, there's no reason to plead out a case.
While I support the concept of deferred adjudication for motorists accused of DWI, I have qualms with the particulars of HB 189.
As I pointed out yesterday, the proposed legislation would forbid a person from obtaining an order of nondisclosure on a DWI deferred. Quite frankly, that makes the proposal a non-starter from the beginning. The carrot in a deferred is that you can obtain an order of nondisclosure that prevents anyone outside law enforcement and the agencies and entities listed in the statute from seeing information related to the arrest.
The problem is employers, landlords and others treat deferreds the same as convictions. If a person has completed their probation and done everything required of him by the court, he should be able to obtain an order of nondisclosure. Potential employers and landlords don't need to know he was arrested for driving while intoxicated.
HB 189 would also require that an ignition interlock device be placed on the car of anyone on a deferred probation for driving while intoxicated. While I think that is an extreme measure, it is well within the purview of the court to order an ignition interlock device as a condition of probation. This type of a one-size-fits-all plan, however, doesn't always work and isn't always appropriate. Let's be real, people plead to cases for a variety of reasons - and not always because they are guilty.
I don't have a problem with the provision stating that, for enhancement purposes, a deferred on a DWI will be considered a conviction. After all, when a person enters a plea in exchange for a deferred, the judge will state that based on the evidence before the court he finds that there is sufficient evidence to enter a finding of guilt but that he will defer that finding pending the completion of the probation. One concern would be whether a DWI deferred could be used as a conviction to enhance any other misdemeanor.
Another area of concern, raised by a colleague of mine, is what happens to a motorist who holds a commercial driver's license? Will CDL holders be eligible for a deferred on a DWI? Will it matter whether or not they were driving a commercial vehicle or a private car? Will the DPS consider that deferred to be a conviction for the purpose of suspending the motorist's license?
The proposed legislation is not perfect and I would not support it in its current form. I do believe, however, that a sea change may be taking place and that at some point in the near future a more amenable bill may be submitted.
"MADD endorses deferred adjudication for first-offense DWI" Grits for Breakfast (12/28/10)
"Another bad DWI idea in Austin" Defending People (12/27/10)
"Deferred for DWI?" Dallas Criminal Defense Lawyer Blog (12/27/10)
"The DWI deferred conviction - House Bill 189" Dallas Criminal Defense Lawyer Blog (12/27/10)