New DWI Laws Coming September 1. Surcharges Program Eliminated!

There are some important changes to Texas DWI law that will come into effect September 1 of this year.  They will relate directly to the fines levied against those convicted of DWIs.  Whether this is good or bad news for people charged with DWIs will depend on exactly how courts interpret the new laws, as I will explain below.

First, the good news.  Texas is FINALLY eliminating the surcharges program (Also known as the Texas Driver Responsibility Program, or DRP).  For the uninitiated, the DRP has been in effect since 2003.  Drivers who accumulate traffic tickets or get certain charges (most notably DWI) are required to pay surcharges to maintain their license.

It seems straightforward, but the huge cracks in the plan began to reveal themselves quickly.  Low-income drivers could easily get caught in a trap.  Once they could not afford to pay their surcharges, they might get pulled over again and receive a DWLI (Driving with License Invalid), which would lead to – you guessed it – more surcharges.  It was not uncommon for low-income drivers to rack up many thousands in surcharges. 

The end result was that many people would simply drive without a valid license.  This poses a number of problems.  Many jurisdictions have the policy to arrest anyone found driving without a license, impounding the car in the process (now add towing and storage fees on top of any fines, plus a few nights in jail and additional legal fees.)  In some cases, throw in an additional Class B misdemeanor conviction for good measure.

At this point the cycle should seem obvious.  Likewise it should be obvious that this cycle disproportionately affects those of lower socioeconomic status.  No one wants unlicensed drivers on the road and this program actually encouraged the normalization of unlicensed driving.

The elimination of the DRP is great news.  Not only are surcharges eliminated moving forward, but all past surcharges will be forgiven as well!  Any suspensions that are only the result of the DRP program will be immediately lifted on September 1!  Importantly, this will not apply to the fines levied by the individual counties.  If your license is suspended because of a fine you owe to a county or municipality, the elimination of the DRP will not help you.  If you have any questions about whether you owe fines, you can check the status of your DL here: https://txapps.texas.gov/txapp/txdps/dleligibility/login.do

Now, for the bad news.  The surcharges program was a major funding source for EMS Services, which is a major reason the program wasn’t ditched sooner.  They had to replace that funding and decided to get it from the pockets of those convicted with a DWI.  Additional fines are not only authorized by the new law, but made MANDATORY.  This means – at least on the surface – that not even a judge has the authority not to order the FULL fine for anyone convicted.  The mandatory fines are $3,000 for a first-time conviction, $4,500 for a second DWI in 36 months, and $6,000 if BAC is over .15.

There are a few ways that defense lawyers can attack the new law.  One way to challenge the law is to assert double jeopardy.  Double jeopardy is a concept that many people know from television and movies.  If someone has been convicted for a crime, they cannot be tried again for that same crime.  It could also be implicated in a slightly different way here.  Texas Criminal Statutes already contemplate a fine for DWIs (not mandatory, but discretionary – meaning a judge or jury decides whether to include the fine as punishment).  Adding a second fine could be seen as a second punishment for the same crime, which would violate the constitution.

Second, there is some case law, including Supreme Court decisions that seem to call into question mandatory fines of these amounts because they disproportionately affect lower income folks.  This could be another way to challenge the law.

Short of challenging the validity of the law, the new changes also include a provision to allow for deferred adjudications on DWIs (this was previously allowed for other crimes but not DWIs.)  The language seems to be written so that a mandatory fine is not required when a driver receives deferred adjudication for a DWI.  However, there is some debate amongst the defense bar whether the legislature made a mistake in drafting the bill so that those who take a deferred adjudication would still face the fine.  Only time will tell.

It is not entirely clear how the new laws with shake out in the courts.  I will be following the developments and will post updates once the situation becomes more clear.  In the meantime, if you have been charged with a DWI and have questions, you can call 512-677-5003 for a free phone consultation.

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