Bill would impose moratorium on driver surcharges in Texas

Anyone who has dealt with the world of low-level traffic offenses knows the consequences of the Texas Driver Responsibility Program. The DRP imposed surcharges on driver license renewals for certain traffic offenses and suspended legal driving privileges for those who didn't make the payments.

Then, when those same drivers picked up new moving violations their licenses were suspended (again) and more surcharges were imposed. The entire program became a downward spiral that left many motorists with no way to ever regain their legal driving privileges.

Now it appears that relief might be on the way in the form of HB104 - a proposed bill that would place a two-year moratorium on the imposition and collection of surcharges under the DRP.

The DRP was created in 2003 partially as a funding mechanism for trauma centers in the state. The promise was that folks who drove without insurance or on suspended licenses would cough up some money that the state would collect and distribute (hmm, sounds like a tax to me). Over the years, however, the program has not generated the funds lawmakers had expected.

Being that most folks ticketed for driving without insurance or on suspended licenses tend to be on the poorer end of the spectrum, the state has only collected about 40% of the surcharges levied on motorists. So, not only did the program not generate the amount of revenue expected - it couldn't even collect half the surcharges levied.

The bill would allow the DPS to begin imposing and collecting surcharges after September 1, 2013 provided the state had not yet found a mechanism to fund trauma centers at the level they are currently funded. Whether this will encourage lawmakers to come up with a new funding mechanism or just sit on the hands has yet to be determined.

For way too long the state legislature (and governor) have resisted devising equitable mechanisms to fund this state. The sales tax is regressive. The lottery is a scam directed at the poor. The DRP is yet another attempt to impose higher taxes on the poor while reducing the tax burden on the wealthy.

Imposing a moratorium on the DRP rather than abolishing the whole thing may be a baby step - but at least it's a step in the right direction.

Holy piece of junk, Batman!

There were some folks who thought I was a bit off the mark when I dared to criticize HPD's BATmobiles. Turns out I was right.

We've got vans with wiring problems that renders the breath test machines inoperable. The air conditioning doesn't work in one van and that's not good for a machine that's temperature sensitive. Yep, that's how we take care of our "instruments" here in Space City.



The police won't even acknowledge the problems to the Harris County District Attorney's Office -- of course that cat's out the bag by now. Heaven forbid folks find out that the money used to purchase and maintain (sort of) the BATmobiles might as well have been used to light the charcoal in the grill.

The lieutenant was worried about having to, quote, "explain what these problems can do to pending court cases."


"The lieutenant may think there's a problem, but I don't see that there's a problem," Driskell said.


And the DA's office has never been told of any of the maintenance problems we've uncovered.

"It's not that we're trying to hide it, but I don't see a need in telling them that. If they wanna know that, we'd be glad to share that information," Driskell said.

It's not about getting drunks off the streets. It's about raking in that grant money. We're churning and burning, baby, just send the check. The DPS is in on the scam, too, charging motorists $3,000 for a DWI conviction. Budget shortfalls -- let's just increase the user fees on our roadways. Just think of all that fine money and surcharge payments.

But it's all right because it's all in the name of public safety. Isn't it?

Lawyer files suit to end surcharge program

I've written in the past of Texans caught in the Kafka-esque nightmare of the DPS Driver Responsibility Program that imposes surcharges on drivers convicted of certain offenses such as driving while intoxicated and driving without insurance.

Fort Worth defense attorney Mimi Coffey has also had enough. Ms. Coffey filed suit in federal court seeking to end the surcharges on the grounds that the imposition of the surcharge violates the principle of double jeopardy. The argument goes that the person has already had a penalty imposed by the court as a result of the conviction -- be it a fine, jail time, probation or a license suspension - and that the imposition of another financial penalty is, in effect, punishing the motorist a second time.

"You can't deprive property without due process," Coffey said. "I think it's time somebody do something about this."

The situation worsens if a motorist cannot afford the surcharge as the sanction for failing to pay the surcharge is a license suspension. And this is where the program becomes a never-ending cycle for those caught up in its vortex: if you can't pay the surcharge your license is suspended and, should you be ticketed for driving on that suspended license you'll get hit with another surcharge and yet another license suspension.


The author of the original bill putting the program into place, Rep. Mike Krusee of Round Rock, thinks the Driver Responsibility Program needs to go. Even MADD says it's time to scrap it (provided the state find another way to fund trauma centers).

"We have seen nothing that shows the program helps deter drunken driving."  Bill Lewis, MADD public policy liaison

Others have proposed repealing the program as is and enact new legislation that would hit motorists convicted of DWI for surcharges. Let's see, a motorist convicted of drunk driving has a criminal conviction on his record that can never be expunged, he spent at least a night in jail and will likely be under court supervision for at least 12 months -- I think reasonable people would agree that's adequate punishment.

State changes course on driver surcharges

The Texas Department of Public Safety has finally come to the conclusion that hitting motorists with surcharge after surcharge is not working. The Public Safety Board has decided to implement a plan by which those with incomes less than 125% of the poverty level who are in default will have their surcharges reduced to 10% of what's owed up to $250. Once arrangements are made for payment the license suspensions will be lifted and the motorists will not be in danger of picking up additional surcharges and suspensions for driving on an invalid license.

Of course the program doesn't apply to motorists who have been paying their surcharges, nor does it apply to anyone making more than 125% of the federal poverty line (approximately $27,562 for a family of four).

The real solution to the mess is to rescind the Driver Responsibility Program altogether so that motorists don't fall into an endless cycle of surcharges and suspensions.

Sometimes the cure can be worse than the ailment

The powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy; to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. -- Texas Constitution, Art. II

Texas State Senator John Whitmire recognizes that there is something wrong with the manner in which Texas handles motorists accused of drunk driving. He understands that the surcharges imposed by the Department of Public Safety are onerous. He gets that motorists don't want a DWI conviction on their records because of the surcharges or because it may cost them their job.

What he doesn't get, apparently, is the separation of powers clause in the Texas Constitution. Sen. Whitmire is upset because different counties handle DWI cases differently. In Galveston County, it's not unusual for a motorist accused of drunk driving to plead guilty to obstruction of a highway. In Harris County, a person accused of DWI who has never been in trouble with the law before can enter the DIVERT program and (cross your fingers) have the matter expunged after completing their probation (more on this later). Get pulled over in Fort Bend County and if the case is not dismissed, plead guilty or go to trial.

Sen. Whitmire wants to put together a "working group" to figure out how to ensure that DWI's are handled the same across the state. No word on whether that working group will include defense attorneys or not.

My question, however, is who cares if Tom Green County treats first-time DWI's one way, Cameron County treats them another way and Jefferson County treats them a different way. No one questions why for so long capital crimes were handled one way in Harris County and, seemingly, another way across the rest of the Lone Star State. No one seems concerned that every county has a different policy toward pretrial diversion on nonviolent offenses such as shoplifting or possession of minor amounts of marijuana.

In Bexar County, District Attorney Susan Reed dealt with a backlog of cases by allowing first-time drunken-driving defendants who meet certain parameters to plead instead to a charge of "obstruction of a highway – intoxication." Defendants must undergo treatment and abide by conditions, including locks on their vehicles.

Reed said her goal was to get to offenders quickly and impose strict requirements because she believes that is the way to keep people from repeat drunken driving: "It's really got teeth in it for trying to stop the behavior." Besides avoiding the surcharge, she said, the absence of a formal DWI charge keeps people from possibly losing their jobs over the matter.

Whitmire voiced concern that allowing such a charge would hide a defendant's first drunken-driving offense, allowing him to avoid enhanced penalties if he offends again.

"We're losing a record of what that person's actual offense is," he said. -- Houston Chronicle (7/8/2010)

Allowing defendants to plead to a different charge? Really? C'mon, Senator, you are well aware that it happens every day in courthouses across this state and across the country. That's why it's called a plea bargain. Why the concern when it happens in a DWI case? The records will still indicate that the person was arrested and charged with driving while intoxicated regardless of what the person actually pleads to.

Here's an idea for you, Senator. Why not allow deferred adjudication for those accused of DWI? Even with a nondisclosure order, law enforcement (and prosecutors) will know about the prior arrest and can treat any subsequent offense accordingly. Allowing those accused of driving while intoxicated to clear their case without a conviction, without a license suspension and without the onerous DPS surcharges can move dockets -- if judicial economy is what we're really concerned about.

Turning drunk driving into a money-making enterprise

A former state district judge from McLennan County, David Hodges, has joined the growing chorus of reasonable minds that believe the costs of the Texas DPS' Driver Responsibility Program are greater than its benefits. Mr. Hodges argues that court dockets are backlogged with DWI cases that are tried, in large measure, because of the steep surcharges assessed by the DPS. He's also upset that some counties are trying to reduce their drunk driving docket by offering pleas to charges such as obstructing a highway and reckless driving (not that I have a problem with it).

Mr. Hodges' theory is that a good number of motorists charged with drunk driving would be more than willing to plead guilty to DWI if it didn't mean staring at a $3,000 charge from the DPS. Now I think the stigma of a criminal conviction plays a large role in this backlog. After all, DWI is the one crime that almost anyone can be charged with (sorry about the dangling participle, but I'll be damned if I can think of a better way to word the sentence). I've often told clients to look around the courtroom and find someone who doesn't belong -- that person's probably charged with drunk driving.

"Our criminal justice system is supposed to be about changing behavior and making our streets safer, but there is no evidence that this program is making our streets safer." -- David Hodges, judicial liaison for the Texas Center for the Judiciary.

The Driver Responsibility Program was sold as a way of providing additional funding to regional trauma centers who, as the story goes, expend a mountain of resources treating people injured as a result of someone's bad driving. Surprisingly enough, the trauma centers have yet to receive the amount of funding they were promised when the program was instituted.

There are currently 1.2 million Texans who haven't paid their surcharges and are risking arrest every time they get behind the wheel . The balance due? Over a billion dollars.

At the same time that the state legislature has restricted the constitutional rights of motorists in Texas, legislators have been working to make DWI prosecutions into a profit-making activity. After all, who wouldn't trade off 4th, 5th and 6th amendment rights for the promise of $3,000 plus reinstatement fees?

Texas taking a second look at surcharges

Today's Houston Chronicle ran an excellent article on the trouble people find themselves in as a result of the Texas Department of Public Safety's Driver Responsibility Program. The program created surcharges for various traffic offenses that drivers must pay in order to prevent their driver's licenses from being suspended.

If you are convicted of driving while intoxicated, in addition to whatever penalties handed out by the court, you will face a $3,000 surcharge payable over three years from the DPS. Should you fail to make your payments, your privilege to drive will be suspended -- regardless of whether your license was suspended as a result of the conviction. Pick up another DWI conviction and the surcharge doubles.

HOW DPS SURCHARGES CAN SNOWBALL

Convicted offenders must pay these fines for three years to keep their driver's licenses:

• DWI first offense: $1,000 annually

• DWI subsequent offense within three years: $1,500 annually

• DWI with alcohol concentration of 0.16 or more: $2,000 annually

• Driving with no car insurance or a suspended driver's license: $250 annually

• Driving without a valid license: $100 annually

Money collected by program

Surcharges imposed, collected by end of November 2009

• Total fines billed: $1,721,383,578.00

• Total revenue paid: $672,150,803.95

• Fines still unpaid: $1,049,232,774.05

Drivers facing surcharges

Convicted offenders hit with surcharges as of April 2009

• Number of drivers billed: 1,641,183

• Drivers who have paid: 543,612

• Drivers who failed to pay: 1,097,571

Add in surcharges for driving without insurance, driving on a suspended license or driving without a valid Texas driver's license and the state is raking in the bucks -- that is, if the motorist can afford the payments.

Most motorists are shocked to find out about the surcharge program. There's no indication on a traffic citation that you'll get hit with a surcharge for the any offense and the prosecutor conveniently fails to mention it to unrepresented defendants. Hire an attorney without any experience in traffic court or handling DWIs and you're not going to find out either.

The program creates a cycle that some folks just can't find their way out of -- incurring a surcharge for one offense can lead to a suspension and a subsequent surcharge for driving on a suspended license.

“We can't point to anything that says that law has caused a decline in alcohol-related fatalities. We're not going to go nuts if the Legislature decides they want to repeal it.” -- Bill Lewis, MADD

The DPS is taking a hint from Virginia, who repealed their surcharge program after only a year, and may reduce surcharges for motorists whose income falls less than 120% over the poverty line.

Proposed indigence rule

The rule, if approved, would:

• Reduce fines for convicted motorists earning equal to or less than 125 percent of the poverty level

• Allow 90 days to pay the reduced fees in full and provide proof of insurance

• Allow electronic application online or by phone

• Require applicants to submit supporting documents to prove indigency

• Require DPS to mail a letter of approval or denial to any applicant

State Representatives Rodney Ellis (D-Houston) and John Carona (R-Dallas) want to end the program but it's hard for the government to cut off a revenue stream.

State troopers on the prowl for drunk drivers

If you're planning on cruising the highways in the Lone Star State this holiday weekend, you might want to watch your speed, make sure you're buckled in and find a designated driver.

The Texas Department of Public Safety has announced state troopers will be on the lookout for speeders, drunk drivers and unrestrained passengers over the Thanksgiving holiday. Last year over the Wednesday through Sunday holiday weekend, state troopers arrested 252 motorists on suspicion of drunk driving. Let's do some math...

That's 252 motorists whose licenses would have been suspended for either failing or declining a breath test and who would have been charged a $125 reinstatement fee to the DPS. That comes out to $31,500 in potential reinstatement fees. Those same 252 motorists could have faced surcharges of $3,000 for a DWI conviction. That comes out to $756,000.

That means the DPS had the potential to score $787,500 in fees over the holiday weekend. And this figure doesn't even include the possible fines and court costs the counties could have picked up (if we figure an average of a $500 fine and $300 in court costs - that's potentially $201,600 for the counties involved).

Yep, driving while intoxicated is big business in Texas.

Debtor's prison, redux

Even though federal debtor's prisons were outlawed in 1833 and the Texas Constitution forbade them in the Lone Star State in 1836, they are making a comeback today.

County officials around the state are looking at ways to collect court-ordered fines and fees from parolees who have been released from prison.  Some parole officers are filing motions to revoke parole for those who are behind in their payments -- in other words, threatening to put them in prison because they don't have any money.

As a way of raising revenue, the Texas Department of Public Safety thought instituting surcharges on license renewals would be an excellent deterrent (punishment) for driving while intoxicated, without insurance or with too heavy a lead foot. The effect of the surcharge program, however, has been to create criminals out of those who can't afford to pay the king's ransom for the privilege to drive in Texas.

The DPS will hit you with a $1,000 a year surcharge for three years on your first conviction for driving while intoxicated - or else your license is suspended. If you are convicted of driving without insurance, you'll owe the DPS $250 a year for three years. Should you accumulate too many speeding tickets in a three-year period, be prepared to pony up at least $100. And if you can't afford these surcharges and you get caught driving on a suspended license (suspended for non-payment of surcharges) -- open up that wallet because you are on the hook for $250 a year for three years. You are also subject to being arrested and taken to jail for driving on that suspended license.

Worse yet, these surcharges don't even take into account the reinstatement fees for which you are responsible.

In addition to motorists arrested and jailed for not paying their surcharges, the State of Texas can also jail for you not paying your court-ordered child support. In the IV-D courts (child support enforcement courts), if you're behind you could get hit with a contempt order and be subject to jail time for not obeying the court's order. Of course since you're not making any money while in the cooler you're falling further and further behind and digging a hole from which you may very well never find your way out.

And, if that's not bad enough, piss someone off enough and you could find yourself facing a state jail felony for criminal nonsupport. At least there you have the defense that you couldn't afford the payments.

A neverending circle

I came across an interesting e-mail today about the surcharges the Texas Department of Public Safety impose upon Texas motorists. The author spoke of the hole a client of his was in due to over $11,000 in surcharges: surcharges for DWI, no insurance tickets and tickets for driving on a suspended license.

The client couldn't pay the surcharges because he couldn't get a job because the DPS would not renew his license because of the excessive surcharges owed. In his case, the only thing the DPS has accomplished is guaranteeing he will be breaking the law everyday.