Mandatory DWI Fines

DWIs in Texas Just Got a Whole Lot More Expensive ... Maybe

In September 2019, The Texas Legislature finally axed the Surcharges Program that caused so many problems for the less wealthy Texans that were caught in that trap. But this came with a big caveat for those now charged with DWI. DWI final convictions now carry MANDATORY fines, and they aren’t small.   $3,000 for the first one, $4,500 for a second, and $6,000 if BAC level is over .15. Here’s why that’s a big deal. These fines are not “up to $6,000”, there are MANDATORY figures. It’s the full $6,000 if your BAC is up over .15. For a first time conviction, the fine is the FULL $3,000. The prosecutors and judge have no discretion to lower it.

What does this mean? First of all, let’s clarify. The statute uses the term “finally convicted” This is a legal term of art that probably means that it does not apply to probation. If you take probation and successfully complete it, then you are not “finally convicted”. However, if your probation is revoked (like, by picking up new charges or violating other conditions.) then you are finally convicted and you’re on the hook for the fine. You are also “finally convicted” if you accept a jail sentence instead of probation.

This is going to affect how plea negotiations go. Most criminal charges are dealt with before trial with a plea agreement, but these agreements are still largely governed by the statutes. Here, the new statute will make it much less appealing to take a “jail plea”. For DWIs before September 1, 2019, it was often a good idea to take a jail sentence instead of probation – that is – spend a day or two in jail rather than spend a year or more paying probation fees and meeting probation requirements. Now, that option will come with a huge fine attached. I will be more likely to steer my clients toward probation if a big fine is something that would be difficult for them.

Let’s look at the statute:

(b)  Except as provided by Subsection (c), in addition to the fine prescribed for the specific offense, a person who has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated shall pay a fine of:

(1)  $3,000 for the first conviction within a 36-month period;

(2)  $4,500 for a second or subsequent conviction within a 36-month period; and

(3)  $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

Notice the “and” which I have bolded? I believe that means these fines are additive. Meaning, if, for example, you are charged with a first time DWI and your BAC is over .15, then you face BOTH fines – a total of $9,000. I’m not sure this was the intent of the legislature, but that’s how the statute reads. Keep in mind, also, that these fines are in addition to the normal Misdemeanor fines – up to $2,000 for class B misdemeanors and up to $4,000 for Class A.

All of this looks like the DWI fines got a whole lot nastier, so you may be wondering why I included “maybe” in the title. The reason that it’s not certain is that these fines have not been challenged in court yet. Experienced appellate attorneys are already gearing up to challenge the law on at least two grounds. First, there is double jeopardy – you’ve already been fined once. You can’t be fined again for the same crime. Second, there is potentially a claim that these fines are excessive and disproportionately affect the poor. It remains to be seen whether these challenges will be effective in appellate courts, but they are not groundless objections.

Before concluding, I’ll just address a couple of practical concerns. First, if a person is indigent, they may be able to get the fines waived. Second, if you do fall into the category where you are paying the mandatory fine, you can make the payments for up to 36 months. It’s not clear how courts will handle the situation where payment has not been made by the time probation has been completed.
If you are facing a DWI where the only plea offer includes a final conviction, it would be a good case to fight all the way to the appellate level and Texas Supreme Court if necessary. When there is uncertainty like this, it is especially important to have an aggressive lawyer willing to fight for your rights. If you’ve been charged with a DWI after September 1 in Travis or surrounding counties, contact our office for a free consultation. 512-677-5003.  You can also check out my free DWI guide tailored for Travis County here.

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