Dallas Criminal Defense Lawyer Blog

Thanks to Houston Defense Lawyer Paul Kennedy for tracking down HB 189. I had some tepid enthusiasm after reading the Statesman article. The devil is in the details.

What's wrong with HB 189? Three quick points.

1. It's deferred, but still counts a conviction?

From 189

A deferred adjudication for an offense under Section 49.04, 49.05, 49.06, or 49.065 is considered a conviction for purposes of enhancement of penalties under this section or Subchapter D, Chapter 12

The whole point of taking deferred probation is that it does not result in a conviction. That's why defendants give up their right to trial. DWI convictions can be used to enhance forever and creates a new legal animal, the deferred "conviction".

2. Interlock lobby gets theirs-

(

o)AAA judge granting deferred adjudication to a defendant
for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, shall require the defendant to have an ignition interlock device installed under Subsection (i), regardless of whether the defendant would be required to have the device installed if the defendant was convicted.

I'm not sure how much lobbyist cash the interlock lobby is throwing around Austin these days, but it's paying off with this bill. A few thousand more interlocks devices installed annually, even for cases where the defendant wasn't drinking.

Let's say your doctor switches your prescription from drug A to drug B. Drug B leaves you without the normal use of your physical and mental faculties. You learn this fact after driving home from the pharmacy where you took your new meds. Officer Friendly pulls you over and arrests you for DWI.

You want to plead the case because a doctor's prescription is not a defense to DWI, your lawyer tells you that deferred is a great deal, and a trial fee is going to be expensive. Despite your case having nothing to do with alcohol, you still have an interlock ordered as a condition of probation. Nice.

3. No non disclosure.

The bill also prevents a motion for non disclosure, the only other real benefit in a deferred case. MFND's allow a partial sealing of records from public view. In an internet age it's impossible to un-ring the criminal case bell without a full fledged expunction. MFND's provide a small measure of relief for defendants who successfully finish deferred probation, but even that paltry measure isn't available under 189.

So the two main benefits of deferred probation; no conviction and a motion for non disclosure, aren't available with this "deferred" bill.

Who benefits from this bill? Prosecutors, interlock providers, phony DWI lawyers, and some defendants who were going to plead anyway.

Prosecutors love plea bargains, it saves them from putting their case together, and glosses over possible reasonable doubts, and sloppy police work/junk DWI science.

There could be some small benefit to DWI defendants who were going to plead anyway. Not much, it's deferred in name only. But you can still tell your friends you were only sort of convicted for your DWI, and you can avoid the nasty DPS surcharge for DWI. However, given the expense of the interlock machine that's a negligible financial plus.

Just like plea bargains gloss over a junk case. Plea bargains also gloss over subpar defense work. "DWI lawyers" who don't really understand or try DWI cases, will convince some defendants who should be on the trial docket, into pleading for "deferred".

Beat your spouse, sell some drugs, look at kiddie porn, steal a few Xbox's from Wal Mart and you can get deferred probation in Texas. (Deferred probation does not result in a conviction if you finish probation). But, catch a case for DWI and deferred is not available. It has been this way since the 80's when MADD hysteria brought us this dumb on crime law.

The result- DWI is the most common criminal case tried in Texas. Backlogs are common in big counties, and weak DWI cases are often pled as "obstruction of a highway" or "reckless driving".

A bill has been filed to allow deferred for DWI first timers (I can't find a text of this bill). From the Austin Statesman

A backlog of thousands of Texas court cases. Drunken drivers convicted on lesser charges. Repeat DWI offenders who don't have a record of a related conviction or treatment.

Those are some examples of what's bringing together a new coalition that includes Mother s Against Drunk Driving, prosecutors and defense attorneys who support a widespread change in how the state punishes first-time drunken drivers.

Supporter say the plan, a legislative proposal to allow deferred adjudication for first-time offenses, would ease the court backlog and improve efforts to track and punish repeat DWI offenders.

First-time offenders could be acquitted of the offense if they complete supervision and treatment. If the offense were repeated, it would become grounds to boost future punishments.

"Generally we do not support deferred adjudication bills, but we are going to support this one," said Bill Lewis, public policy liaison for the Irving-based nonprofit group MADD. "Right now, we are hearing that many cases are not getting prosecuted for DWI but for a bogus charge. We hope the practice of reducing charges will be reduced if this bill does indeed pass."

MADD's support of the measure is somewhat shocking. I've never seen MADD support repealing any tuff on DWI legislation.

TDCAA has come out in favor of the bill. Lest you think prosecutors in Texas have gone soft, this bill does nothing to limit their discretion or power. ADA's aren't really giving up anything by having deferred as an option.

Deferred probation gives them one more chip to bargain away your right to trial. The more cases the State can get to plead, the more they can bury dog cases and bad police work without being exposed at trial.

Some defense lawyers are going to oppose this bill for the wrong reasons. Less DWI trials = less DWI trial fees. Some defense lawyers are going to oppose this bill for the right reasons. That is, more DWI pleas = less DWI acquittals. Defendants are going to plead for deferred because it saves them the expense of trial, and because most DWI defendants have no problem with probation (besides marijuana possession, DWI defendants are the least "criminal" defendants in the system).

In case you missed it, Pat Robertson, yes that Pat Robertson, is questioning the wisdom of cannabis prohibition. I'm amazed it took this long for a Christian Conservative leader to come out against arresting and prosecuting adults for smoking weed. It seems to violate the Golden Rule/ "love your neighbor as yourself" ethos to lock said neighbor in a government cage and steal their money, children, and freedom for consuming a plant.

It also speaks to the glaring inconsistency in mainstream Republican thought. Fiscal conservatism is based on the idea that individuals should be responsible for their own behavior and decisions, and that central planning and oppressive government regulations are bad for America. Free markets, free trade, Adam Smith, self interested rational actors, invisbile hand etc all speak to the idea that individuals, not the State, make better decisions on how to spend money.

Unless you spend that money on "drugs". Then fiscal conservatism Hulks out and becomes the evil twin, big government social conservatism.

Social conservatism embraces the polar opposite set of values as fiscal. Oppressive government and central planning are great (DEA/FDA), and individual responsibility is to be found by locking individuals up for a few years. Liberty is to be found in home invasion SWAT raids to protect "family values". The best decisions are made by bureaucrats, cops, prosecutors, and the DEA, not individuals.

Really, it never made sense to me that you could be against Obama Care, but for a War on Drugs. I've never met a conservative who could satisfactorily explain how that is anything less than a bipolar cluster of incoherence.

On to the video-

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