Thursday, December 30, 2010

What I would change about HB 189

Today Grits for Breakfast asked what changes I would like to see in HB 189. Here goes.

I support the idea of making deferred adjudication an option for motorists charged with driving while intoxicated. While I don't think deferred is the greatest thing since sliced bread, in some cases it may be the best way to resolve a case.

My main problem with HB 189 is that a person who successfully completes his deferred probation is not eligible for an order of nondisclosure - leaving his arrest for DWI out there for all to see. The other offenses that are not eligible for nondisclosure are crimes of violence; for the most part those charged with drunk driving did nothing worse than commit a minor traffic offense such as speeding.

It's not like a nondisclosure order will prevent the police or the courts from discovering a prior DWI arrest -- law enforcement agencies have access to records under a nondisclosure order. Maybe the arresting officer won't know about the prior DWI arrest at the time of the traffic stop, but that information will be available to prosecutors.

The carrots in a deferred are the dismissal and nondisclosure. Since we're talking about a crime that's just one step removed from a traffic ticket, I think nondisclosure should be available.

I would also like to see the bill address the issue of how motorists who hold commercial driver's licenses will be affected. If we are allowing the deferred to count as a conviction for enhancement purposes, what effect will they have on a CDL? Will the DPS take advantage of that provision and impose surcharges for drivers who take deferred adjudication in a DWI case?

I would like to see language to the effect that there will be no civil penalties imposed by the DPS for any motorist who takes deferred probation in a DWI case. That means no surcharge, no license suspension and no disqualification from driving a commercial vehicle. If you want to disqualify CDL holders if they were arrested for DWI while driving a commercial vehicle, that's fine.

I also think the requirement that a motorist on deferred probation install an ignition interlock may be overkill. However, since judges routinely require an interlock as a condition of granting an occupational license, I can live with that. I do think, though, that it should be up to the judge whether the device should be required. One size fits all solutions from Austin rarely work as planned.

In short, while I am opposed to HB 189 as written, I do think it's a step in the right direction.

No comments: