Plano DWI Lawyer Blog

To reflect changes made to the Texas Transportation Code effective September 1, 2011, the state Department of Public Safety has amended both the DIC 23 and DIC 24 (as well as the 54).

The DIC 24 is a document that is more commonly known as the statutory warning.  It is a script that Texas police officers are required to read to Driving While Intoxicated suspects prior to requesting a breath or blood sample.  Essentially, is informs the suspect of their statutory rights, and the consequences of refusing to submit to the request for breath or blood.   The new form includes language explaining to the suspect that if he or she refuses to submit, the officer may request that a judge issue a search warrant for the person's blood.

Similarly, the document known as the DIC 23 has also been amended to reflect new legislative changes.  The DIC 23 will no longer need to be sworn to by a notary. 

This legislative session in the Texas Legislature saw a flurry of bills related to Driving While Intoxicated. I blogged about many of them here, here and here.  Some of the proposals including creating a brand new crime for failing to install an ignition interlock device when ordered by the court, mandatory ignition interlock devices for those convicted of even a first driving while intoxicated offense, and deferred adjudication for Driving While Intoxicated.

 In spite of the apparent focus on passing new legislation, none of the proposals had enough support to become law except one.  HB 1199 passed both houses of the Texas Legislature and was sent to the Governor.  This new law, known as the Abdallah Khader Act changes the law in two ways. 

First, the law elevates Driving While Intoxicated from a Class B misdemeanor offense to a Class A misdemeanor offense for those having an alcohol concentration of .15 or more "at the time the analysis was performed."  In addition to raising the punishment range, I am concerned that depending upon how this new law is read and applied, it may effectively criminalize having an alcohol concentration of .15 or more "at the time the analysis was performed" regardless of what the person's alcohol concentration was at the time of driving.

For example, let's assume  a person consumed a large quantity of alcohol within fifteen minutes to a half hour of driving.  Let's further assume that they are stopped by the police soon after driving.  In that situation, it is very unlikely that the person could have been over a .08 at the time of operation, but could be over .15 by the time the alcohol is fully absorbed at the time the analysis is performed. 

Second, the law elevates the punishment range from a Third Degree Felony to a Second Degree felony for an Intoxication Assault case where the victim suffers a brain injury that leaves them in a persistent vegetative state

Among the DWI bills being considered by the Texas Legislature this session is one I nearly overlooked. Rep. Stefani Carter, R- Dallas has introduced H.B 982 , which would create an a new class A misdemeanor for failing to install or maintain an Ignition Interlock device on a car when ordered to do so.   An Ignition Interlock device is a machine that is installed in your car that is designed to indicate the presence of alcohol and disallow the car from starting if alcohol is detected.  

The bill was referred to the Criminal Jurisprudence Committee   in February and there has been no additional action taken since then according to the Texas Legislature Online.  

Rep. Todd Smith has introduced H.B. 189, which would authorize people charged with a first driving while intoxicated case in Texas to receive deferred adjudication.  Texas law does not presently allow for deferred adjudication in Driving While Intoxicated cases. In a deferred adjudication situation, no judicial finding of guilt is made and and the end of the deferral period the case is dismissed 

On its face then, the idea that deferred adjudication might be authorized for those arrested for Driving While Intoxicated in Texas might seem appealing to a person charged with Driving While Intoxicated. The law appears to have law enforcement support, and even M.A.D.D. has publicly endorsed the bill, at least in concept.  Sounds like a win, win doesn't it?   Often, the devil is in the details.

If H.B. 189 becomes law, it will require persons placed on deferred adjudication for DWI to have an Ignition Interlock device installed on any car that they own or operate.  An Ignition Interlock device is a machine that is installed in your car that is designed to indicate the presence of alcohol and disallow the car from starting if alcohol is detected.  This Ignition Interlock device is not presently a requirement for people convicted of DWI unless their alcohol concentration is over a specified amount, but it apparently will be for those placed on Deferred.

The new proposed bill would also prevent those that successfully complete deferred adjudication for DWI from sealing their record.  For most misdemeanor cases, when a person succesfully completes deferred adjudication they are eligible to petition the Court to seal their record.  This sealing is known as an Order of Non Disclosure and a person's ability to seek an Order of Non Disclosure is controlled by the Texas Government Code.  H.B. 189 specifically amends the relevant section of the Government Code to prohibit people who were on deferred adjudication for DWI from receiving an Order of Non Disclosure.

Finally, the first time dwi deferred will be used to enhance the punishment range of subsequent DWI convictions.

I understand the rationale behind the bill.  The goal is to remove a large number of DWI cases from the crowded dockets in Collin and Dallas County and all around Texas.  The thought is that if deferred adjudication is an option, many people with first time DWI cases would opt for the deferred. Under the bill as written however, I don't see the incentive.  You will need an Interlock that is not required by law if you were convicted.  You can never non disclose the deferred, and your deferred case can form the predicate for subsequent punishment enhancements. 

As an attorney representing DWI clients, I don't see the value right now, and ultimately for this proposed law to have its desired effect of unclogging dockets and moving cases, it will have to be written in a way that makes it an attractive alternative to trial. 

The law treats Driving While Intoxicated cases differently from any other type of case, particularly for misdmeanor DWI cases. One of the ways that the law treats Driving While Intoxicated cases differently than other misdememeanor cases, is that the law currently does not authorize deferred adjudication in DWI cases.
In a deferred adjudication situation, a person enters a plea of guilty or no contest, but the judge does not make finding of guilt. Instead, the court defers making a finding of guilt for the period of time specified in the agreement. If the person successfully completes the deferred period, the case is dismissed and no finding of guilt is made.

For most types of offenses, the discharge and dismissal results in the eligibility to seek an Order of Non Disclosure, essentially sealing the record from public view. Presently, this type of an arrangement is not available for DWI cases. That may be about to change however. Recently, Todd Smith, R-Euless  proposed legislation that will change the law,  making  deferred adjudication an option in DWI cases.

The question comes to mind though, is this a good thing or a bad thing for those accused of Driving While Intoxicated in Collin or Dallas County?  Well, like most things, it depends.  One consequence of the no deferred adjudication law in DWI caes is that many cases with marginal evidence of intoxication are tried to juries, sometimes resulting in not guilty verdicts for the accused person.  If deferred adjudication is an option, many people may be tempted to resolve their case with deferred adjudication.  Why?  This is because with deferred adjudication, the accused will likely still have the option to have the case dismissed, and potentially seal the record.  If the accused is convicted by a jury following trial, the person receives a final conviction, with no possibility to seal the record.  For many people then, the temptation to choose the route that, on the surface anyway, seems safer may be strong.

If the legislature is considering amending the statute to authorize deferred adjudication for Driving While Intoxicated cases, the amendment will be meanignless unless they amend the statute that regulates deferred adjudication to authorize Orders of Non Disclosure for successfully completed DWI deferred adjudication, and authorizes immediate eligibility with no waiting period.

As far back as May of this year, I wrote about Texas State Senator Jane Nelson's stated plan to introduce legislation in the upcoming 82nd Texas legislative session that would effect a lfetime driver's license suspension on those convicted of driving while intoxicated for the second time.

Now, opposition to this proposal is coming from the unlikeliest of sources.  Public policy liason for the Texas chapter of Mothers Against Drunk Driving  Bill Lewis, speaking aout the proposal, stated his opposition.

  Mr. Lewis, in effect, echoed the opinion of many that the passage of legislation which would have the effect of supending a person's dirver's license for the rest of their life upon conviction for driving while intoxicated a second time would do little to prevent driving while intoxicated.

Finally, there appears to be relief on the immediate horizon for Collin, Dallas and Denton County Motorists who are subject to the so called Driver Responsibility Program.  The Driver Responsibility Program was established in 2003  as a means of increasing revenue by requiring persons convicted of Driving While Intoxicated in Texas to pay a surcharge for the first thirty six months following a DWI conviction or face a driver's license suspension.

 The amount of the surcharge is not insignificant.  For example, a person convicted of DWI, first offense is required to pay $1,000.00 surcharge annually for the first three years.  People convicted of a second offense or those who show an alochol concentration of .16 or higher face a much larger annual surcharge.

By almost every measure, the Program has failed. The anticipated revenues are not materializing and the compliance and enforcement have been large problems.  For some time, the failure of this initiative has been known to the Texas Legislature, generally.   I have written previously on a few occassions about the plans that were afoot to change the law.  

It appears that now we may be seeing the first concrete steps in that direction.  On October 21, 2010 the Texas Public Safety Commission agreed to adopt rule changes directly affecting the Driver Responsibility Program.  The rule changes are scheduled to take affect in November.

Among other features of the program:  For those who receive amnesty

their license suspension will be rescinded while amnesty payments are being made.

payments will be reduced to ten percent of the total amount owed.

Please click HERE  to see a copy of the official press release

There may be a new more restrictive law on the way; one that would criminalize the operation of motor vehicle with an alcohol concentration below the legal limits. The proposed law would criminalize driving with an alcohol concentration below the legal limit even if the person was not intoxicated.

At least that it what may be in store for Collin and Dallas county motorists if Austin Police Chief Art Acevedo has his way. Acevedo is proposing the misnamed "Driving While Ability Impaired" law aimed at motorists whos drive with an alcohol concentration of between .05 and .07.  I completely fail to see how this is any different than lowering the "legal limit" for DWI to .05.   I say that because the Collin County District Attorney's office can and does routinely prosecute people for Driving While Intoxicated when the person has an alcohol concentration well below .08, even when there is no evidence of intoxication by drugs. 

What then is the point of creating a separate offense for alcohol concentrations of .05 to .07,when the DWI law as presently written and applied frequently prosecutes people with alcohol concentrations in that range or lower with Driving While Intoxicated.