Articles Posted in Driving While Intoxicated

I read a good article in the Dallas Morning News earlier this year about the DWI surcharge, and whether the Texas legislature would have the brains to end this failed program. Unintended consequences should always be thoroughly considered before levying a huge “surcharge” on driver’s licenses. I guess it’s kind of hard to think of unintended consequences when you only have six months to pass a bill, but five years of failed policy should at least get the item on the agenda this session.

Contrary to popular belief, the huge “surcharge” or DWI-tax-that-we-can’t-call-a-tax-because-then-it’s-unconstitutional, was passed as a way to raise revenue during a legislative session in which Texas once again found itself overbudget. Unfortunately, DWI defendants, who like most criminal defendants are indigent, failed to be the gold mine that our elected officials envisioned.

Of course, heaven forbid we consider making first-time driving while intoxicated an offense in which deferred adjudication probation is an option, to at least it bring it on par with sexual assault, drug delivery, robbery, and other apparently more “deferred worthy” offenses in Texas. Maybe then citizens who plead guilty to DWI would have more of a chance of keeping or getting a good job, whereby they could pay their outrageous surcharge.

The great “hidden fee” of DWI convictions, which neither the prosecutor nor the judge will tell you when one of them tries to talk you into pleading guilty without a lawyer, is the $1,000 to $2,000 a year “surcharge” tax you will pay for three years to keep your right to drive. As if the arrest, posting bail, shopping for an attorney, fighting the ALR hearing process, getting an occupation license if you are unsuccessful, and going through the Court process wasn’t enough, our legislature added this tax as one last giant hammer to wack those convicted of DWI (the guilty, the innocent, the underrepresented, and those talked into not having a lawyer) over the head with on the way out the door.

The DWI surcharge law, Transportation Code § 708.102, went into effect on September 1, 2003. It states, in relevant part, that

(b) Each year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.

In Texas, should you refuse any breath or blood test requested by an officer if investigated for DWI? Yes. Of course. Every time. They are not asking for your breath or blood so they can “see if you are innocent.” They believe you are guilty and want more evidence to show to a judge or jury to prove you are guilty. The screwups in the machine and the blood draw work in their favor, not yours. Plus, if they take your blood, they will not even have the results for three, four, maybe more months down the road. You aren’t going home, and they will almost certainly not let you go home no matter the result of the test.

You have the fundamental right not be compelled to incriminate yourself. In Texas, you have both the right to remain silent and the right to refuse to consent to all breath and blood testing. There is no separate crime, as in many states, for refusing a breath or blood alcohol test upon an officer’s request. The officer will tell you that he will get a warrant. “Go get one, buddy.” First, he has to find a judge who is awake. Then he must prove probable cause by sworn affidavit. Then he must conduct the search in a reasonable manner. Make them jump through all these hoops. Never be intimidated by the threat of “getting a warrant.” If the officer gets a warrant, or a blood draw statute applies (repeat offender, child in car), he can force a blood draw. But make him get a warrant when that’s all he can do. What do you have to lose?