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.