There's finally a little bit of good news - or, at least, potential good news - regarding DWI surcharges.

Since I started defending people accused of DWI, I have noticed that most of my clients know that they are looking at a possible fine and jail sentence from the courts, but very few of them know about Texas's Drivers License Surcharges that come along with DWI convictions.

As it stands right now, if you're convicted of a first-time DWI, Intoxication Assault, or Intoxication Manslaughter, you will have to pay $1,000.00 a year to the Texas Department of Public Safety for three years in order to keep your license. If you're convicted a subsequent time, it shoots up to $1,500.00. And if your breath or blood test comes back at 0.16 or greater, it spikes to $2,000.00.

The surcharge system - which extends beyond DWI, incidentally, to driving without proof of insurance, driving with license suspended, and more, albeit with lower fees for those charges - results in a number of people who live in poverty, including some of my clients, driving around without a valid driver's license. A thousand or more dollars a year is a huge portion of a lot of people's income. And this puts them (and the public) at greater risk - without a license, they can't get insurance, and they're also susceptible to arrest for Driving While License Invalid, which both result in - yeah - another surcharge. It's a cycle that never quits going for people who don't make enough money to keep up. But what's the alternative? If they quit driving, most of them won't be able to get to work, and then they'll never pay off the fines. (Furthermore, you can't just quit driving for the three years, then go back and get your license once the fee period expires - when you try, you'll still be liable for the $3,000-$6,000 in back fees you racked up over those years.)

But there is good news. The DPS actually seems to understand the burden this puts on people, and the cyclical nature of the problem that means that this system makes an innocent driver's chances of being in an accident with an ininsured motorist more likely, as well as making people who've only really been convicted of one thing liable for more crimes. The minutes from the DPS meeting is on the DPS Officer's Association blog, and they feature a pretty cogent grasp of the problem as we see it:

One in nine people have warrants out for them in El Paso (11%) due to this program. The numbers were similar in Travis County (Austin). A one-time infraction costs $1,000. Suspended license – $1,000. We have a 70% non-compliance rate, since many violators are not able to pay the surcharges. The LBB said that it has lead to more uninsured drivers on the road. It fails to make roads safer. More than 1,080,000 drivers cannot pay.
[...]
Elizabeth Earle, County Court Judge, Travis County [...] We hear “I will never be able to climb out of this hole; Just put me in jail.”

Their proposal is encouraging. The full details are at Grits for Breakfast, but the short form is that those who qualify could replace the $1,000 annual payment with a $500 one-time fee; those whose fees would be $1,500-$2,000 annually would see them replaced with a single $1,000 charge. Qualification would require passing a Drug Court program, the details for which are unspecified right now. But at the very least, this is a step in the right direction.

Labels: dps, dwi, dwi surcharges, money

posted by Kristi Couvillon   permalink   1 Comments

Imagine being told that you must register as a sex offender for life for something that is not a even a crime in Texas, let alone a registerable offense. Well, that is exactly what happened to a client of mine when he moved from out-of-state to Texas to live near his mother. When I consulted with this young man I thought surely this is a beaurocratic mix-up with Texas Department of Public Safety that can be resolved with a few phone calls right? Wrong. What ensued was a series of Kafka-esque conversations with DPS employees, culminating in a year of litigation after we had to sue DPS to have our client removed from the sex offender registry.

The situation all started when my client was convicted of a misdemeanor in his home state for having consensual sex with his seventeen year old girlfriend when he was twenty-one (the longer back story was that the girlfriend's father was upset so he called the cops to report this "crime"). Unlike Texas, where the age of consent is seventeen, in my client's homestate, the age of consent was eighteen. When he moved to Texas, however, authorities told him that because his "offense" was "substantially similar" (more on that in a second) to the Texas offense of Sexual Assault of a Child, he would have to register as a sex offender for life. Despite the fact that courts have held that sex offender registration is a "collateral consequence," and "non-punitive", having to register as a sex offender is as close as you can get to a lifetime sentence if you ask me.

The legal basis DPS was relying on to make my client register was a provision under Article 62.003 of the Code of Criminal Procedure which allows DPS to make a determination whether an out-of-state offense is "substantially similar" to an offense here in Texas. If they say yes, then you will be forced, with threat of prosecution for the third-degree felony of failure to register as a sex offender, for the rest of your life. Thankfully, 62.003 also contains a provision that allows a person to appeal this determination by DPS. As I mentioned, this is exactly what we had to do in this case.

The result? The Court thankfully sided with us and found that my client's previous offense was not "substantially similar" to any offense in Texas (imagine that, something that is not a crime in Texas is not "substantially similar" to a crime in Texas). Moreover, the Court ordered DPS to immediately remove my client from the sex offender registry and to contact all agencies that they have previously disseminated this information to.

Interestingly, in some logistical discussions with DPS post-hearing, I was told that this was the first case ever brought successfully in Texas under 62.003. What this tells me anecdotally is that my client can't be the only one in this situation. If I had to guess, I would suspect that there must be hundreds, if not thousands, of people in Texas who are currently on the sex offender registry that should not be.

Labels: dps, public perception, sex offender registration

posted by Kristin Etter   permalink   0 Comments