The San Antonio Express-News reports today about a new program in Bexar County designed to reduce the DWI caseload there. Basically, people accused of DWI will have those cases dismissed in exchange for pleading guilty to "Obstructing a Passageway-Intoxication" and being put on a more heavily supervised form of probation. DA Susan Reed noted that the two-year backlog in DWI cases has led her office to create the program. Maybe that's because the Bexar County DA's office doesn't offer reductions in borderline or bad cases for the State. So in essence, this is a problem that her own policies have created, but she wants to cast this as something caused by defense attorneys or defendants (How dare they insist on a trial!!!!).
Beyond her misunderstanding about why there is a 2 year wait for jury trials, there are several problems with her program:
- First, there is no crime of "Obstructing a Passageway - Intoxication". Section 42.03 of the Texas Penal Code outlines the offense which is basically blocking a road. The charge is popularly used by County and District Attorneys as a reduction from a DWI (along with Reckless Driving) on those plea bargains where the State knows it would have a difficult time proving a DWI. In their mind, it's better to put folks on probation and be able to monitor them than run the risk they walk out the door with an acquittal. For defendants, it's sometimes a good deal because you avoid all of the direct and collateral consequences of a DWI conviction (The $3000 DPS surcharge, the stigma of a DWI conviction, a possible criminal license suspension, higher insurance rates, and maybe the defense attorney's jury trial fee). However, there is nothing in the statute or the Code of Criminal Procedure that allows for a finding that the person was also intoxicated while doing so. This would be akin to saying "Failure to ID - Leprechaun" or "Providing Alcohol to a Minor - Unicorn". It's fantasy language that has no legal bearing.
- Second, I don't this policy will operate as smoothly as DA Reed seems to think it will. Section 49.09 of the Penal Code specifies that a DWI charge can be enhanced "if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated." Now I don't have the legislative history for this, but the descriptive language of 49.09 is likely there so that out-of-state convictions for crimes that aren't called Driving While Intoxicated (e.g. Driving Under the Influence, Operating Under the Influence, Operating While Intoxicated) can nevertheless be used to enhance that new charge to a Class A Misdemeanor. (In Texas, this enhancement is no small thing; a DWI-2nd carries many higher penalties and includes mandatory jail time even if the defendant is given probation.) But it does not mean that an offense like "Obstructing a Passageway - Intoxication" can be used to enhance a subsequent DWI arrest to a DWI-2nd. Pay attention to 49.04(c), which limits those offense to actual DWI convictions.
So what, right? Well, what this means is that people who have Obstructing a Passageway convictions (even if with some language indicating an intoxication "finding") cannot be enhanced on a second DWI arrest; they can only be charged with a DWI 1st. This is what will ultimately kill any support of MADD (the spokesperson quoted in the article seemed to think this was still a possibility), and hence the long term viability of this program.
- Third, the program requires an IID. I have less of a problem with IID for someone who's pleaded guilty, but I still say it's a very unreliable machine and any failures fall at the feet of the probationer, so I'm not entirely thrilled about it being a mandatory condition.
- Fourth, the scheme proposed by Bexar County is time sensitive; you must apply for the program within 30 days of the date of your arrest. In Austin, the video of your arrest isn't available until about 60-75 days after you have been arrested. Assuming San Antonio takes at least 31 days, this program has the effect of pressuring the accused to forfeit their right a trial (and a lot of the concomitant rights that go along with that) on a ticking time bomb. What if the video would have shown that the officer was misleading or lying about bad driving? What if the behavior and alleged "clues" are equally misrepresented or lied about in the officer's probable cause affidavit? This is the same dilemma that the accused who languish in jail (get out today without knowing all the facts or stay in jail and fight the case for a few more weeks) and it really troubles me to think that this DA's office is just refusing to engage in any reasonable sort of good faith negotiations after 30 days.
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