Plano DWI Lawyer Blog

According to a press release issued by the Plano Police Department, the Plano Police plan to conduct a so called no refusal weekend over the Memorial Day weekend. The press release is here.

During a no refusal operation, if you are arrested on suspicion of DWI and refuse to submit to a breath or blood test, the police will prepare an affidavit in support of a search warrant application.  The affidavit must recite facts that demonstrate that the police have probable cause to believe that you were DWI and that evidence of alcohol or drugs will be found in your blood.   The police will then present the affidavit to a judge who will review if for probable cause.  In practice, the police rarely appear in person before a judge and swear to the affidavit.  Rather, the typical practice is for them to fax it or recite it over the phone.

Recently, the Fifth Court of Appeals in Dallas sidestepped the question of whether the Texas Code of Criminal Procedure requires that the police swear to the facts contained in the affidavit in the personal presence of the magistrate.

In the case of Swenson v. State of Texas the Court stated that

I have written about this issue previously, but was pleased to see that momentum appears to be building in Texas to address the problems associated with the surcharge program.  For those of you that don't know, the Texas legislature established a series of new surcharges that took effect in 2004.  The misnamed law is referred to as the Driver Responsibility Program. 

    Essentially, a person convicted of driving while intoxicated will be required to pay a $1,000 annual surcharge for the first thrity six months following a conviction, just to maintain their driver's license.  If a person is convicted of a second or subsequent DWI, or their breath or blood test is .16 or higher the surcharge amounts are greater.

Recently, a former District Judge testified before the Texas Public Safety Commission that the effect of the surcharge program has been to actually increase DWI dismissals because so many more DWI cases are being tried to juries since the passage of the surcharge law.  There are approximately 1.2 million drivers in Texas presently who are subject to the surcharge law who are unable or unwilling to pay the surcharge.  

The Public Safety commission convened a hearing in an effort to assess public opinion concerning a partial amnesety proposal to reduce the surcharge amounts for the indigent.  In 2007, the Texas Legislature authorized the Department to create a program to address the indigent inability to pay. This recent hearing appears to be the first step that the Department has taken toward the creation of such a program. 

It is important to remember that under the current state of the law, the Public Safety Commission does not have the authority to eliminate the surcharge. It may only carry out its legislatively authorized mandate to create a program addressing the reality that many of the drivers subject to the law, cannot pay. 

Should the Texas Department of Public Safety fail to address the issue in a meaningful and significant way, there are those in the Legislature who may introduce legislation to change ro eliminate the surcharge. 

It will be if Texas State Senator Jane Nelson R-Flower Mound, has her way.  Senator Nelson, reacting to an Easter morning tragic crash in which three people lost their life, has proposed a change in the law because she feels that "the penalties are not severe enough to change behavior."  She plans to introduce legislation in the 2011 session that would provide for a mandatory lifetime driver license suspenison for those convicted of a second dwi offense. 

Currently, the law provides for a maximum two years suspension for a Driving While Intoxicated, second offense.  A second DWI conviction is a misdemeanor punishable by up to one year in a county jail and a $4,000 fine.  We have all heard of three strikes and your out.  This particular provision, if it becomes law, would essentially operate as a two strikes and you are out law. 

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