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drunk driving

Austin gives early approval to Uber and Lyft

It’s temporary pending a second Council vote and further study.

Uber

After nearly four hours of testimony and debate, council members gave initial approval shortly after midnight to new rules that would temporarily legalize ridesharing companies such as Uber and Lyft, whose drivers have been providing rides-for-hire for months in defiance of city code. The measure, which could still be amended before a second vote next week, would last for a year while permanent rules are drawn up.

Simply legalizing the ridesharing services, which connect passengers with drivers through a location-based smartphone application, is no trivial matter. As council members discussed a range of details, they kept returning to an essential question: Should the city treat those drivers the same way it treats cabdrivers?

The proposed ordinance would allow ridesharing companies to operate without having to adhere to many of the regulations the taxi industry abides by, such as fares approved by the city, disability-friendly vehicles, city-performed background checks and exhaustive vehicle inspections.

[…]

Lyft

The council did vote to make some changes to the ridesharing ordinance — for instance a Tovo amendment requiring that ridesharing companies report data about their pricing, rider pick-up and drop-off patterns, and driver information monthly instead of quarterly.

But for the most part, efforts to add stronger regulations failed, either because of a lack of votes or because the council wanted more time to examine such complex issues as insurance requirements before coming back for a second vote. Some council members warned they might change their votes of support when the ordinance comes up for a final vote.

A lot of the same issues as in Houston came up – insurance, background checks, access for disabled riders. One interesting twist on the safety argument was noted by BOR:

Traditional taxi supporters argue TNCs are a public safety hazard because drivers are not required to have a chauffeur’s license, but many supporters of TNCs, including the Austin Police Association believe the public safety priority remains reducing the number of drunk drivers on the road.

That’s definitely a concern in Austin. For the rest of it, they can look at what Houston and plenty of other cities have done. Check back in a year when a new City Council adopts a final ordinance.

UPDATE: The Trib has a story today about the Austin Uber/Lyft debate.

One person’s experience with deferred adjudication for DWI

After I posted about the bill to allow deferred adjudication for DWI, I received the following email from a reader, who gave me permission to publish it.

Deferred adjudication (D.A) ….My brother had it because of a DWI in the early 1990s and failed miserably through it. The conditions of D.A. are so onerous that it’s easy to trip up. One time he had a substance abuse relapse, and missed going to the parole officer because he knew his drug test would not be clean (and didn’t pay his fine for the month either). As a result, the Harris County parole officer issued a warrant for his arrest which eventually sent him to prison for 2 years. I tried to intervene and suggest a way that he might turn himself in voluntarily and pay a fine in exchange for the 1 missed visit. But the parole officer said, once the warrant was issued, there was no rescinding it. In other words, there was no incentive for my brother to turn himself in, so he found a retail management job and worked there for a year. For a year, he supported his family without any further drug relapses until the police finally caught up with him (they always do because they can find a work address through your IRS/W2 information). Ironically, despite the fact that my brother was working legitimately and raising a family without drug or alchohol relapses, after he was re-arrested for missing the parole visit, the state sued him for child support even though he was still married. Apparently when he was locked up, his wife applied for food stamps and CHIP for the children. The State of Texas wanted that money back. Of course, he eventually had to explain to the court that the only reason he couldn’t support the children was because the state had locked him up in the first place.

During those two years when he was in prison for breaking the terms of his deferred adjudication, the mother and her children also went basically homeless, having to double up with various family members.

This year my brother had another DWI (after one he had 14 years ago). Due to some fluke in the law, he ended up being classified as a repeat offender and rather than take 5 or 10 years of hard time, he plea bargained for 1 month jail time + 6 months rehab + probation. That was considered “lenient” in Texas.

The result: he lost his well-paying management job, and his wife and 3 young kids lost their house as a result. For the last 2 months, they are basically homeless (now living temporarily with a friend and for a month with my mom). The oldest girl is in school but can’t get HISD to give her a ride to school (that may be resolved by January, I don’t know). (That’s why your other post about homeless children rang true to me). My mother and my brother’s siblings are now having to support his family while the wife looks for a job and tries to find more permanent housing. We are very gloomy about his chances of getting a job that pays as well as the one he had before the release.

My brother is borderline pathological, he lies sometimes and occasionally drinks too much (though no drugs anymore). But he’s been a law abiding citizen for the past 3 years and a good dad. His track record of following all the procedures of parole/probation/D.A. has been poor; it almost seems as though he is being imprisoned not for DWI or drugs but simply failure to pay his monthly fines or meet his parole officer. In theory it sounds reasonable to require that a person see his parole officer regularly, but he has always been busy driving kids to doctor’s appointments and school events (not to mention going to work). That doesn’t include the AA meetings he is usually required to attend (which eventually he stops doing ). Also, we all have strong feelings about the earlier decision to take deferred adjudication. Maybe it would be helpful for some people, but there are so many conditions attached that it entangles you permanently in the system. My brother just kept making minor infractions (not paying the monthly fine, skipping a meeting with the parole officer, not going to AA, etc). It was probably my brother’s worst decision to accept that; in retrospect, he should have just done the jail time and get it over with.

Off-topic: why can’t breathalizer ignition systems be mandatory on all cars? After the 2nd DWI they put a breathalizer on his car, and I thought that would be it. But Texas wanted to lock him up as well. I understand the need to prevent drunk people from getting in front of the wheel, but isn’t it enough to cripple the individual’s car until he takes a breathalizer test?

As my brother says, he knows what incarceration is about. He has been there before. He feels genuine remorse for the trouble he has caused. He is used to having to start over again after prison. But each career interruption lowers his income potential and disrupts the life of his wife and children. It ends up costing the state of Texas more money, and it has cost his family lots of money and heartache.

This is a nonviolent case which never needed to require prison. Even deferred adjudication can be a disaster if the terms are so onerous as to make messups inevitable. The problem with parole and probation is that usually you don’t have the right to contest the charge, and the panels can act arbitrarily and has full discretion. Once my brother signed up for D.A./parole/probation, he was completely at the mercy of the penal system whose solution for everything seems to be imprisonment.

Obviously, no one person’s case is representative of everyone, but the issues cited about how onerous probation can be are well known. Seeing it personalized like that was very compelling, and I thought it was a story that was worth sharing. I am very thankful to the reader who sent it to me and allowed me to publish it.

Deferred adjudication for DWI

There are thousands of drunk driving cases on district court dockets around the state. To try and help get them cleared out, a bill has been filed to allow first time offenders to get deferred adjudication.

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.”

The proposal, filed by Rep. Todd Smith, R-Euless, marks a shift away from a long-standing notion in Texas that all drunken drivers should face fines and jail time. Deferred adjudication for such offenses was abolished in the state in the mid-1980s when opponents, including MADD, argued that prosecuting offices and judges were accepting the form of probation for repeat offenders.

Supporters say the plan could ease court backlogs by routing cases out of courtrooms, give prosecutors a new negotiating tool and remove the threat of jail that makes some first-timers refuse guilty pleas in DWI cases.

By the time a House legislative committee held a hearing on the issue in August, more than 122,000 misdemeanor DWI cases were pending in state district courts. Prosecutors argue they are too limited in the options they can offer first-time offenders.

“Our alternatives that we can offer have diminished such that our bargaining positions have weakened, and cases are backing up,” testified Richard Alpert, a 24-year Tarrant County prosecutor who has become a key figure in the fight against drunken driving.

The bill in question appears to be HB 189. My initial impression on reading this story was that it sounded like a good idea. But I’m not a defense attorney, and no one from the criminal defense bar was quoted reacting to Rep. Smith’s bill. Someone should have called Mark Bennett for an opinion, because that would have significantly changed the way this was presented:

What would deferred-adjudication probation add to defendants’ options, either in Harris County or elsewhere?

A deferred-adjudication probation is not, as the Chronicle article would have it, an acquittal. It cannot be expunged. In most non-DWI cases, deferred-adjudication probation has two advantages over straight probation: 1) it is not, for purposes of Texas criminal law (but is, for purposes of Federal sentencing and immigration law, among other things), a conviction; and 2) it can be sealed from public view with a petition for nondisclosure at some point after the probation is successfully completed.

Nondisclosure is important because of the opprobrium that attaches to many criminal convictions. Try renting an apartment with a felony drug offense on your public record; try getting hired when the boss finds out about your misdemeanor theft deferred. While deferred is not technically a conviction, there is nothing to stop private individuals from treating it as one, so they do.

But nondisclosure would be less important in DWI cases because the stigma of a DWI conviction is not nearly that of a crime involving dishonesty, violence, or even drugs. It would not be unimportant—there might be some employers reluctant to hire (or eager to fire) employees with DWI—but I’m betting that if deferred adjudication becomes available for DWI, nondisclosure will be unavailable for DWI (as it is for sex-offender-registration and family violence offenses, among others). So deferred adjudication will not provide an advantage to DWI defendants over straight probation.

What about the fact that a DWI deferred would not, for purposes of Texas criminal law, be a conviction? The only real effect of a deferred not being a conviction is that it is not available for enhancement, as a conviction would be, if the accused gets charged with something else. The supporters of DWI deferred have a plan to wire around that: “[I]f they do reoffend, it can be used to enhance their punishment,” says Tarrant County prosecutor David Alpert.

(Note: Mark linked to the Chron reprint of this story.) Doesn’t sound so appealing now, does it? Well, it likely would help clear out that backlog, but not in a way that is helpful to anyone facing a DWI charge. I think this bill has enough support from the usual suspects that it has a decent chance of passing, so it’s worth keeping an eye on it. Grits, who reacts favorably to the story, has more.

The DA’s new DWI program

The Harris County District Attorney’s new driving while intoxicated diversion program appears to have some problems.

Under the new program, those accused of a first-time DWI will be offered the diversion program or 30 days in jail and a $750 fine. Defendants who do not want either choice can take their cases to the judge or to trial.

Currently, some first-time DWI defendants are given the option of pleading guilty, paying a $100 fine and taking three days in jail, plus two days, which they do not have to serve if they behaved during the first three.

Known around the courthouse as a 3/2/$100, the deal will not be offered after the diversion program begins.

Those who take the diversion program will plead guilty and get a maximum of two years probation, including treatment and community service. If they successfully complete the probation, their records will not show a conviction for driving while intoxicated. If they fail, they will be sentenced to at least 30 days in jail under a contract signed when they take the deal.

JoAnne Musick, president of the Harris County Criminal Lawyers Association, said the program is coercive and appears to thwart the intent of the Legislature, which prohibits deferred adjudication for DWI offenses.

“It could have been a good program. It could have been an exceptional opportunity for people who have made a mistake and driven when they shouldn’t have,” Musick said. “At the same time, I think it’s very poor planning and execution on how to conduct the program.”

She said the plan is coercive because defendants have to waive their rights, sign a contract and plead guilty. She said defendants could be sent to jail at the smallest amount of evidence of a mistake or if they fail to fulfill every requirement.

Problem One, as Musick points out, is that this looks an awful lot like a deferred adjudication program, which the Lege outlawed for DWI infractions back in the 90s. Problem Two, as noted later in the story, is that it’s not clear this will actually reduce the jail population, which would seem to be the point and which constitutes a deal-breaker for me. Remember, a lot of defendants prefer to choose jail time over probation now because the probation requirements are so onerous. Problems Three and higher are enumerated by Grits, Mark Bennett, Paul Kennedy, and Murray Newman; I’ll leave it to you to see what they have to say. I’m thinking this one needs some more time on the drawing board.

Blow before you drive

MADD wants to make it harder for people with a drunk driving conviction to get behind the wheel.

Mothers Against Drunk Driving is again pushing Texas legislators to require ignition interlocks for people convicted of their first driving while intoxicated offense.

The ignition interlock device tests a driver’s breath to confirm he or she hasn’t been drinking before the car will start.

“We really want to see this on first-time offenders in order to prohibit the third or fourth time down the road,” said Hope Rangel of Humble, executive director for MADD’s Southeast Texas region.

Proposed legislation, including bills filed by state Sen. Rodney Ellis, D-Houston, and state Rep. Bill Callegari, R-Katy, calls for the interlock to be installed for offenders convicted of their first DWI who are placed on probation.

Two similar measures filed in the last legislative session in 2007 died in committee.

Callegari has HB1110. Ellis has SB170, which has a companion bill in the House, HB379 by Linda Harper-Brown.

Current Texas law requires interlocks as a condition of probation only for repeat offenders or those with a blood-alcohol concentration of 0.15 in any alcohol-related driving offense.

The device also is required for those released on bail while awaiting trial if they are charged with repeat DWI offenses or if they hurt or kill someone while driving drunk.

Although the proposed legislation is encouraging, Rangel said, many convicted drunken drivers in Harris County are opting for jail time instead of probation. If an offender chooses to go to jail, no interlock is installed.

Drunken drivers put on probation have to pay for the device — which can average about $150 a month — so they might find jail more appealing, she said.

Actually, there are quite a few other reason why these offenders might find jail more appealing. They were laid out in a Chron story from 2006 on why so many first-time DUI offenders chose jail over probation:

Facing the stiff costs and strict rules that come with probation, thousands of convicted drivers in recent years have decided spending time behind bars is the better option.

And in a county already struggling with crowded jails, that’s a disturbing trend. Sentences can be short enough to mean losing only one weekend and a vacation day, but some end up behind bars as long as half a year.

“Because of the number of sanctions and what the defendants feel is the ‘hassle factor,’ many opt not to go on probation,” said County Criminal Court at Law Judge Sherman Ross. “Financially, it’s more expensive.”

The choice of jail time also may mean fewer options for treating the alcohol problems that land many drivers there.

“Probation has become so onerous that there’s no incentive to take it,” said Bob Wessels, manager of the county criminal courts at law. “If we really want people in treatment, we aren’t providing incentives.”

Of the 6,685 DWI defendants in the county who accepted plea agreements last year, 2,894 (43 percent) took jail time rather than probation, Wessels said. In 2000, fewer than 10 percent (479 of 5,034) chose jail.

Last year’s figure, though significant, did represent a drop from 2004, when it reached 52 percent. Robert Pelton, past president of the Harris County Criminal Lawyers Association, attributes the decline at least partly to lawyers not doing all they should for their clients.

“I think any attorney is doing a disservice to their client by putting them on probation,” he said.

Pelton, a defense attorney for 31 years, said he generally advises clients to take the jail time because probation can be so arduous, financially and otherwise. Probation for DWI carries another risk: If it’s revoked, a judge can pile on even more jail time than originally would have been ordered.

This, added to the fact that Harris County has the highest per capita rate of probation revocations in Texas, means it may make more sense to burn some vacation time behind bars, Pelton said.

Grits blogged about this at the time. It’s yet another reason why Harris County’s jails are overcrowded. It seems to me that if we got serious about this problem and removed some of the perverse disincentives for choosing probation, we could accomplish MADD’s objective without the need for new legislation and do a lot of good for the criminal justice system and the taxpayers of Harris County. Of course, that’s hard work, and passing a new law is comparatively easy. Point is, we could have already achieved this goal, without needing to wait for another opportunity in the Lege.

By the way, the story notes that installing the interlock can already be a condition of bail or probation. It might be nice to know why it’s only done sometimes and not as a matter of course before we require it.

Back to the original story:

Research suggests lawbreakers with prior DWI convictions are a serious problem. MADD claims such offenders comprise nearly one-third of the alcohol-related dangers on the road.

Last year, Texas had 124,662 residents with three or more DWI convictions, according to the state Department of Transportation. The agency reported 18,271 other Texans had five DWI convictions or more.

One person had 22 convictions, the most of any driver in the state, TxDOT said.

Drunken drivers involved in fatal crashes were eight times more likely to have a prior DWI conviction than sober drivers involved in a fatality, the National Highway Traffic Safety Administration reported in 2007.

[…]

Not everyone supports MADD’s proposal.

The American Beverage Institute, a restaurant trade association, is urging the Texas Legislature to reject the bills.

Institute spokeswoman Sarah Longwell said ignition interlocks for first-time DWI convicts “ignore the root cause of today’s drunk-driving problem: hard-core alcohol abusers.”

Well, okay, but one could argue that those hard-core abusers will have a first offense, at which time they will get the ignition lock. For however long that lasts, anyway – the text of the Ellis/Harper-Brown bill only says “The court shall order the ignition interlock device to remain installed for at least half of the period of supervision”, which strikes me as more relevant for probation than for someone who chose jail time. I suppose they’re arguing more money should be put into treatment, and if so I certainly agree. I don’t see how that’s incompatible with this bill, however.

The bottom line is that while I agree with the goal of this effort, I have problems with the means being proposed to attain it. Let’s fix what’s wrong with probation first.