Another Bad DWI Idea in Austin


A backlog of thousands of Texas court cases. Drunken drivers convicted on lesser charges. Repeat DWI offenders who don’t have a record of a related conviction or treatment.
Those are some examples of what’s bringing together a new coalition that includes Mothers Against Drunk Driving, prosecutors and defense attorneys who support a widespread change in how the state punishes first-time drunken drivers.

(Houston Chronicle.)

The change in question? Authorizing deferred-adjudication probation for first-time DWI offenders.

Right now, a person charged with a first DWI in Texas has two, maybe three broad options:

1. Plead guilty to DWI; either a) take a final conviction (with license suspension), maybe do a little jail time (or maybe just time served), maybe pay a little fine; or b) take probation (with no license suspension as part of the probation, though there might have been an administrative suspension);
2a. (In Travis County, and some others, but not in Harris County) Plead guilty to some non-DWI offense (reckless driving, obstructing a roadway), and take deferred-adjudication probation or a conviction;
2b. (In Harris County only) Sign up for the DIVERT program, a sort of deferred-adjudication probation with—maybe, depending on how the issue shakes out in the courts—the possibility of expunction after two or three years; or
3. Plead not guilty to DWI; either be acquitted (resulting in no punishment), get the case dismissed (ditto), or lose at trial and get punishment very similar to that if he had pleaded guilty.

The DIVERT program has been in effect for 16 months, and I still haven’t had a client sign up for it: the only benefit it seems to offer the accused, beyond those that a defendant gets if he goes to trial, loses, and takes probation, is the possibility, as yet unproven, of expunction in the future. For most people charged with a first DWI, this purely speculative benefit is not worth giving up the right to make the State prove its case in a jury trial, with attendant 95.9% probability of dismissal or acquittal.

What would deferred-adjudication probation add to defendants’ options, either in Harris County or elsewhere?

A deferred-adjudication probation is not, as the Chronicle article would have it, an acquittal. It cannot be expunged. In most non-DWI cases, deferred-adjudication probation has two advantages over straight probation: 1) it is not, for purposes of Texas criminal law (but is, for purposes of Federal sentencing and immigration law, among other things), a conviction; and 2) it can be sealed from public view with a petition for nondisclosure at some point after the probation is successfully completed.

Nondisclosure is important because of the opprobrium that attaches to many criminal convictions. Try renting an apartment with a felony drug offense on your public record; try getting hired when the boss finds out about your misdemeanor theft deferred. While deferred is not technically a conviction, there is nothing to stop private individuals from treating it as one, so they do.

But nondisclosure would be less important in DWI cases because the stigma of a DWI conviction is not nearly that of a crime involving dishonesty, violence, or even drugs. It would not be unimportant—there might be some employers reluctant to hire (or eager to fire) employees with DWI—but I’m betting that if deferred adjudication becomes available for DWI, nondisclosure will be unavailable for DWI (as it is for sex-offender-registration and family violence offenses, among others). So deferred adjudication will not provide an advantage to DWI defendants over straight probation.

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.

But if you’ve been paying any attention at all, you wouldn’t need an analysis of the benefits of deferred-adjudication probation over straight probation to know that making deferred available for DWI is going to wind up screwing the accused. Here’s how we know it won’t be good for our DWI clients: MADD is supporting it. Because MADD is never going to go for something that really gives the intoxicated driver a second chance.

Deferred adjudication in Texas is almost entirely in the hands of the State. If the State doesn’t want a judge to give an accused deferred-adjudication probation, the State can insist on a jury trial; once the accused has been convicted by a jury, deferred adjudication is no longer available (some North Texas lawyers have, with the cooperation of judges fed up with the unreasonable State, maneuvered around this rule). Allowing deferred for DWIs would put another tool in the State’s toolbox, not ours.

So cui bono? Here’s prosecutor Alpert again: “It would give people who want to take responsibility an incentive to plead guilty, as opposed to setting these cases for trial.”

The State benefits and the courts benefit. Instead of rationalizing the law on the front end, they can get more people to plead guilty on the back end. Defendants don’t benefit. Most first-time DWIs should be set for trial; that’s the nature of the cases. For the informed client, deferred adjudication will be at most a feeble incentive to plead guilty.

Will criminal-defense lawyers benefit? Some lawyers—civil lawyers seeking to make a quick buck, and other hacks—will see this as another way to sell a guilty plea to their clients; they will tell lies and half-truths to their clients (I occasionally overhear lawyers in the courthouse explaining to their clients—incorrectly—that deferred adjudication will result in their case being “dismissed” and then “off their record”) to bleed ’em and plead ’em; these people will benefit by making more money with less work. But these people are pale imitators of criminal-defense lawyers, and their clients—assuming that they can’t afford to hire real lawyers—are probably better off getting the case over with before they do even greater harm.

For the real lawyers, deferred-adjudication probation for DWI will be a good idea only very rarely (and you can bet that, if the case is so bad for the defense that a conscientious defense lawyer thinks deferred is a good idea, the State won’t offer it); in most cases it will be just another offer to convey to the client on the way to dismissal or trial.

The Chronicle article alleges that defense lawyers support the change, but doesn’t cite any actual criminal-defense lawyers or organizations doing so. It wouldn’t surprise me terribly if TCDLA supports it, though it’s a change that would not benefit people charged with DWI in Texas. “Supporter[s] say the plan, a legislative proposal to allow deferred adjudication for first-time offenses, would ease the court backlog and improve efforts to track and punish repeat DWI offenders.”

Does that sound like something the defense bar should support?

[Update: Guest and Kennedy weigh in as well; neither seems as antipathetic toward the bill as I am. Kennedy has a link to the bill, HB189, which, sure enough, makes nondisclosure unavailable for DWI offenses.]

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2 responses to “Another Bad DWI Idea in Austin”

  1. Having a DA is no different than that of a conviction. I find this odd especially seeing that SCOTUS specifically remarked that a DA is ‘wiped’ from the record after successful completion. The state disagrees obviously.

    I am no fan of convicted DWI offenders, they are dangerous in my mind. That being said, DA for DWI is only a tool to get more defendants to plead out and give the State an easy win.

  2. Mark excellent article. I cannot tell you how confusing the deferred adjudication law is to many. For instance I asked a defense attorney, “My question is HOW can they use it for enhancement purposes after a person completes his or her probation?”

    His comment: 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.

    In your article you say: it cannot be used for enhancement (ninth paragraph)

    I agree with you, everything I have read including the statute; the only thing I found that be exactly this is against sex offenders. And no I have not read ALL the amendments within this statute.

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