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”.