Wednesday, February 20, 2008

Good Sense On DWI

Somebody is finally talking some good sense in the Brazos County race for County Attorney. My comrade and fellow Brazos County criminal defense lawyer, Lane Thibodeaux, commented in the Bryan Eagle about how featherbrained the legislative bar is against deferred adjudication for DWIs in Texas. A product of the MADD lobby, I'm afraid. In any case, Lane is right and we hope somebody in Austin is listening.
Currently, DWI is one of only a handful of crimes for which deferred adjudication probation is not, by law, a punishment option. The hypothetical 21-year-old college student with no prior criminal history is therefore not eligible for consideration of this type of probation. The lack of this option handcuffs prosecutors dealing with this common scenario. It also is a financial boon to criminal defense attorneys such as me.

This defendant, if convicted, will most likely receive probation in the typical DWI case. No real incentive to plead the case exists. Additionally, although members of the community are all about punishing DWI in the abstract, when in a jury box, facing down a 21-year-old engineering student whose life could be inalterably changed by a guilty verdict, their views understandably soften.

When faced with these realities, prosecutors become creative. They use other penal statutes to charge the defendant on a deferred eligible crime that addresses rehabilitative needs rather than risk the possibility of an acquittal and no supervision.

Rather than forcing prosecutors to engage in charade, the Legislature should allow the option of deferred adjudication for first time offenders of DWI, but also allow it to be used as an enhancement to any subsequent DWI prosecution.

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