The Bexar County “system” has apparently abandoned a years-long attempt to get misdemeanor defendants to court quickly by setting their first appearance within seven days of arrest.  Years ago, misdemeanor arrest cases were set thirty days from arrest, which seemed to work fairly well. The misguided attempt to move up the settings to seven days resulting in many resets, simply because the arrest report and other required paperwork would not migrate from the police department to the District Attorney’s office fast enough to arrive in court on the seventh day.  Preliminary experience with the new (old) deadlines indicates that the District Attorney will extend the deadline to plead to obstruction of a highway to the first setting, even if it occurs after the announced thirty day deadline.

Because of the many and varied negative consequences of a DWI conviction discussed in my last post, the motivation for accused individuals to seek an acquittal through the mechanism of a jury trial has increased dramatically over the years.  The resources devoted to arresting people who “drink and drive” have also increased, resulting in ever larger numbers of arrests. In San Antonio, the Bexar County District Attorney’s office has traditionally taken a hard line on DWI cases, declining to reduce them to anything else, or offer a pretrial diversion program to allow people to avoid a DWI conviction on their first arrest. The inevitable result of the convergence of all these factors has been hugely overcrowded court dockets and long delays in getting cases resolved.  Increasing population growth in Bexar County has compounded this problem.

Earlier this year, however, the Bexar County District Attorney’s office announced a new policy with respect to first time DWIs. Certain DWI cases which met designated critieria were to be offered a plea to obstructing a highway instead of driving while intoxicated (in typical government Orwellian fashion, this is entitled “The Take Responsibility Program,” perhaps intimating that those individuals who exercised their Constitutional right to a jury trial were attempting to dodge responsibility for their actions). The DA’s offer is:  180 days, probated for 12 months, at least a $500 fine, the normal DWI conditions of probation (alcohol treatment evaluation, DWI Education class, Driver Impact Panel) and either ignition interlock or (for individuals not owning a motor vehicle) antabuse or the SCRAM bracelet. Let’s analyze the advantages and disadvantages of such a plea bargain.

First of all, it’s important to realize that the offer involves a conviction, not for DWI but for the Class B misdemeanor offense of Obstructing a Highway.  A conviction cannot be expunged or sealed from an individual’s record, short of a pardon from the Governor.  For those who have no previous criminal record, this is a major disadvantage.  A second and quite significant handicap with this offer is that the ignition interlock is simply not feasible for some people who have to drive other vehicles for work, or who use their vehicles in conducting business (e.g., real estate agents and the like).  The non-negotiable aspect of the plea bargain means that it must be accepted completely or it will not be offered (so far, the Bexar County judges have uncharacteristically eschewed their traditional independence from the DA’s office and gone along with all aspects of this program).

On the other hand, it’s clear that the major advantage of the plea offer is that it avoids a conviction for DWI.  Consequently, it would not be possible to use the conviction for Obstructing a Highway as an enhancement for a subsequent DWI.  For a prosecutor to give up this possibility is a significant concession, because there is a certain percentage of individuals who will eventually be charged with a second, and perhaps a third DWI.  Also, the draconian drivers license surcharges associated with a DWI conviction do not apply to a conviction for Obstructing a Highway.  The prospect of saving $3000 or more in drivers license fees is not an insignificant factor for many people.

On balance, the new policy in San Antonio with respect to DWIs is somewhat of a mixed bag: some individuals may find that the offer fits their goals for their case, while others may not.  It’s important to carefully consider this option and make an informed decision, particularly since, at this time, the DA’s offer is only good for the first 30 days after arrest.  Any competent criminal defense attorney should be able to advise clients of the details of this offer, preferably on the first meeting with the client.

Even before I recieved my law license in 1987, DWIs were becoming a hot issue in the state of Texas. Pressure groups such as MADD (Mothers Against Drunk Drivers) successfully promoted increasingly harsh penalties and consequences for those convicted of DWI. In 1983, deferred adjudication was prohibited for DWIs. This means, in effect, that beating your wife, carrying a weapon, or possession up to 4 ounces of marijuana could qualify for probation without a conviction, but not driving while intoxicated (see: San Antonio DWI). Any probation for DWI is a final conviction and will stay on your record forever. Other changes over the years have included lengthening the time of drivers license suspensions for refusing a breath test, lowering the limit for blood alcohol concentration (beginning at .15) from 0.10 to 0.08 (there is a movement to lower it further, to 0.05), prohibiting pleading down DWIs to public intoxication, adding mandatory jail times as conditions of probation for DWIs, adding alcohol treatment evaluations and DWI education courses as mandatory conditions of probation, and, most recently, the draconian drivers license surcharges, starting at $1000/yr for three years for first time DWIs, and rising to as much as $2000/yr for three years for breath test results of 0.16 or higher.

The effect of all these increased penalties has been, predictably, to vastly increase the incentives for those charged with DWI to contest their cases in court, ultimately through demanding a jury trial. Since the criminal justice system cannot function effectively without 90% or more of the cases moving through it pleading out or being dismissed, these incentives threaten to undermine the foundations of the system. In San Antonio, for example, all criminal county courts at law are backlogged to some extent. Some courts have typical delays of three years or more for cases to be tried. Of course, since the State has the burden of proof in all criminal cases, delays typically tend to benefit the defense. For example, a few weeks ago, I had a client’s DWI case, which had been reset numerous times, came up for a contested motion to suppress. The State was forced to dismiss the case (which had a very high breath test result 0.20!) when they discovered that the arresting officer had been sentenced to prison for intoxication manslaughter. Not the sort of thing that happens often, but similar situations have occurred more than once.

One response to this overcrowding of court dockets in San Antonio has been the Bexar County District Attorneys offices new plea bargain policy of offering a conviction for obstructing a highway instead of driving while intoxicated. The details of this policy and the pros and cons will be discussed in an upcoming post.