Wednesday, April 21, 2010

The Assistant has An Intractable Problem

Last week, DAC talked about his difficulty in crafting an appropriate
punishment for DWI defendants who were illegal immigrants. This week I
want to talk about my intractable problem- DWLS, or driving with
license suspended.

In Texas, the first time you’re charged with DWLS
is usually a Class C misdemeanor, a fine only misdemeanor. However, it
is a Class B misdemeanor if a defendant has been convicted of DWLS
before, doesn’t have insurance, or their license was suspended due to
a DWI breath test refusal. In these cases a defendant is facing up to
a $2,000 fine and 6 months in jail, which is no small potatoes.

Here’s the problem. For many people, their license is suspended as
the result of a DWI or for not having insurance. Then after they’re
convicted of that offense, in addition to the fines and court costs,
the State imposes a “driver responsibility fee.” This Orwellian named
program requires payments of $200 to $1,000 a year for three years in
order to reinstate the defendant’s driver’s license. If you don’t pay
the fees, your license is suspended. This creates a Catch-22 that
Grits for Breakfast
has covered in more depth than I could possibly
give here.

So you see how this plays out- Joe Citizen gets pulled over and
doesn’t have insurance because he doesn’t think he can afford it. Joe
pays his fine and court costs on the ticket, but then can’t pay the
driver responsibility fees, so his license stays suspended. On top of
that, he still doesn’t buy insurance. So a few months later, Joe gets
pulled over again, and this time arrested for Class B DWLS. He sits
across my desk after announcing that he wants to plead guilty and…

Any conviction is going to: 1) Have more fine and court costs, 2)
either place him on probation with a $35 a month fee OR send him to
county jail for a while and risk losing his job, 3) impose another
driver responsibility surcharge he can’t pay, and 4) push him further
away financially from being able to get a valid license and insurance.
At the same time, Joe’s conduct is blatantly criminal and in my
estimation very blameworthy. Joe knows he’s not allowed to drive, and
chose to anyway. By driving without a license and insurance, he’s
essentially shifted ALL the risk of driving a motor vehicle to other
people. It doesn’t matter how poorly he drives, someone else is going
to pay for it. On a personally infuriating note, the cost of my car
insurance coverage for uninsured motorists is HIGHER here in Texas
that it was on the urban east coast.

So here’s what I usually work out. Joe pleads not guilty, and has the
case set for trial in a month or two. I tell Joe that if he can bring
me proof that he’s gotten his license re-instated, then I’ll dismiss
the case. The goal of the law is to make sure that people who drive
have a license, so I figure if we can accomplish that goal, then
there’s no need to proceed with the criminal case. This way, Joe can
use the money he would have otherwise paid in fines and court costs on
this case to pay off his surcharges and buy insurance. This,
theoretically, should also help my too-high insurance rates.

Next time around I want to talk about breath-test refusals, and how
they’re an entirely different animal. In the mean time, does anyone
else have any bright ideas of what to do here? Repealing the driver
responsibility fees would probably be a start, but I can’t personally
make that happen. Ignoring the law and simply not prosecuting these
offenses isn’t an option either. So what is?


  1. Who do you serve?

    I'm not a lawyer, I'm just a tax payer. I read your blog to learn more about the day-to-day workings of the law. And maybe I'm naive, but the attitude displayed here is - quite frankly - shocking. The citizens of your fair state passed laws. They passed them for reasons even you admit are good. They're just as sick of high insurance rates as you are. And yet... you want to repeal those laws, or failing that, find some way to work around them.

    Who do you serve?

    The law-abiding citizens, or the criminals? I realize you directly interact with the latter on a daily basis, while the former are only an abstraction. It's easier to empathize with people who are right in front of you. You don't see the single mom who scrapes together her inflated insurance payment month after month, foregoing things for her kids so that she can follow the law. You're not reminded of her troubles day after day. But that doesn't mean they don't exist. That doesn't mean she's not worthy of consideration.

    Who do you serve?

  2. Well, to be quite honest, I serve The State of Texas. And the State says that my job is "not to convict, but to see that justice is done." I could, I guess, take every single one of these cases to a jury trial, costing the county for calling 30+ jurors each time, and upon conviction ask that the court sentence the defendant to 180 days in jail at an approximate cost of $7,000. But that doesn't seem like a good use of taxpayer dollars either. The driver leaves jail still unlicensed, your working mom's insurance rates are as high as ever, but now her sales tax rates are going up too in order to pay for the latest jail expansion. Believe me, I want every driver to be licensed and insured, but simply prosecuting each of these cases to the hilt is going to make the overall liscensure rates in my county go DOWN, not up.

    That's essentially the choice that I face- the more harshly I punish any particular defendant, the less likely they are to be able to reinstate their drivers license. I try to find solutions that solve problems rather than only punish. If you were in a car accident tomorrow, which of these would you rather have? 1) The other driver had a case dismissed against him but now has a license or insurance OR 2) the other driver has no license and no insurance, but by god he spent a month in county jail for driving without a license before.

    At the moment, something like 1.2 million Texans have their DL suspended because of driver responsibility surcharges. That system is broken. It imposes collateral financial consequences that are in some cases more severe than the statutorily allowable fine. When John Bradley, the DA in Williamson County and noted law enforcement hardliner, says of the driver responsibility fees "It ain't working", well, then it ain't working.

  3. Also, for a more complete picture, a dismissal for licensure isn't something that's automatic with me. I'll only offer that as a solution when the defendant is obviously in deep with their responsibility fees, but has no other criminal record. Additionally, that's a one shot deal. If someone has multiple instances of DWLI, then they're probably looking at a few days of county jail time. I think that's appropriate, but again, I don't know what real good it does. It costs about $40 per day for someone to serve county jail time, and the conviction adds another driver surcharge.

    This is really the reality that prosecutors face in all driving-related offenses. Sure, i can take someone's license away for DWI, but short of chopping off their limbs, they can still get behind the wheel and drive.

  4. I think you've got the right attitude about these cases. The DRP has been a public policy disaster, and needs to be repealed. At the very least, the Public Safety Commission needs to adopt amnesty and hardship rules that will collect some money that's not being collected now at the same time that they allow more people to get into compliance with the really important stuff like licensure and insurance.

    On top of everything else, I think it's really distasteful to have the state police agency sending out debt collection letters. Even if we're not imprisoning people for their civil debts, here in Texas that's at least what we're threatening them with under the letterhead of the state police. It's kinda medieval, if you ask me.

  5. Assistant, I'd strongly encourage you if at all possible to come to Austin to communicate those sentiments to the Public Safety Commission on Monday at their public hearing. They need to hear from prosecutors regarding how the DRP plays out on the ground.

    If you can't, maybe you know some folks closer to the capital who you could convince to attend, I know you're a pretty good ways from here. The amendments we've proposed (see Appendix A to Grits' public comments) would provide a path to legality for the 1.2 million drivers who lost their license over the DRP, and IMO would help mitigate many of yall's problems with it, too.

  6. If a law's not saving the public more in prevented damages than it costs, then what's the point?

    And if a law is bad, and you genuinely want to change it, maybe the solution is to enforce it exactly, so that voters are faced with a real choice. By trying to blunt the consequences of a bad law - rightly or wrongly - you're just allowing it to limp along, inflicting its costs year after year. But not so high that there's any serious incentive to change them.

    When a boss makes a bad business decision, conscientious employees will often try to mitigate the impact, taking extra steps in certain unasked-for areas, slacking off on steps that would be actively destructive. And lots of companies limp along like this, at less than full efficiency, with the management thinking they're geniuses, and the employees stressed out and risking getting fired for insubordination if they're ever found out. Sometimes you have to follow instructions to the letter. Not because they're good, but because that's the only way the boss will ever learn from his mistakes.

    And that's equally true if the boss is the voter.

  7. "And if a law is bad, and you genuinely want to change it, maybe the solution is to enforce it exactly, so that voters are faced with a real choice."

    Well, frankly, if the voters are faced with a DA or CA who chooses to strictly enforce bad laws to the point that it starts causing real pain to the county budget, then they're going to vote out that prosecutor- not change the law. That's partly a factor of voter power as voters in one jurisdiction can throw out their CA or DA, but can't change the laws all by themselves. It's also an indictment of how truly dysfunctional our Ledge is that legislation so rarely bears any relationship to public need or will. The actions you're proposing would impose significant costs, but not lead to any solutions.

    And again, that sort of attitude directly conflicts the statutory duties of my job- "to do justice." You're essentially asking that I throw a whole lot of people in jail or fine the hell out of them just to prove a point. That doesn't sound like justice to me.

  8. I wrote up your "intractable problem" on Grits this morning, btw. See here.

    There's an extent to which Jason is right, though I agree completely, Assistant, with your approach on these cases. Abraham Lincoln said the best way to get a bad law repealed is to enforce it strictly. We have done so with the Driver Responsibility surcharge, and the result was 1.2 million more unlicensed, uninsured drivers than we would otherwise have.

    Ironically, efforts like yours, Assistant, might actually save the fee politically. (Not that that's a reason to change what you're doing: Your job description demands you grapple with the realities of the situation, not should-bes and would-bes.) There are many at the Lege in both parties who would kill it the DRP if they could figure out how to make up the revenue, for just the reason Lincoln described. Unlike the driving public, legislators know that it was always just a gimmick to raise money while claiming they weren't taxing people; its enforcement from the beginning has been more bane than boon.

  9. "There are many at the Lege in both parties who would kill it the DRP if they could figure out how to make up the revenue, for just the reason Lincoln described."

    And there we have the crux of the problem; as long as the budget is balanced on the back of the criminal justice system (at any level of government), "seeing justice done" becomes harder for all of us.

  10. I'm as right-wing wacko as anyone here in Williamsom County, but I find our host's approach to this problem to be reasonable.

  11. I hate to quote Bradley, but this IS "taxation masquerading as a public safety initiative". It's a bad law, which needs to be flushed. Not that we do that here in Texas. Sadly.


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