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such a life altering hardship if convicted. Even spending a few days in jail versus reporting to a probation officer for two years seems to be a viable option for resolution of his case.

He’s learned a valuable lesson from the arrest, but has much different considerations about a conviction in his case. Namely, he is worried about his insurance rates and his future employability with a DWI conviction on his record. The price of a conviction is much higher than the possible punishment.

This client also presents an additional interested party: the parents. Parents are charged with looking after the best interests of their children. If Johnny is convicted of DWI, all of the money spent on college may have been spent in vain. Even if parents believe their child has an alcohol problem, they want them to be given a break. After all, in their early adult years, police used to look out for them and either call their parents or give them a ride home. Parents do not typically appreciate that those days are no longer here.

Each of these clients presents many aspects of punishment considerations under current DWI laws in Texas. Without learning the personal characteristics of each client, neither the justice system nor the client will be served.

We need to begin considering the unique consequences of a DWI arrest and conviction from the point of view of the offender, not the Lawyer, Prosecutor or Judge. By evaluating DWI from the offender’s viewpoint, we can not only more adequately deter repeat offenders, but also more properly (and less emotionally) punish an individual for the crime that has been committed.

A short list of consequences is:

1. Criminal conviction;

2. Loss of driver’s license ($125 fee);

3. Community Service (24-100 hours);

4. M.A.D.D. Victim Impact Panel (3 hours);

5. Fines and Court Costs ($1,000);

6. Monthly probation reporting;

7. Monthly probation fees ($25-60 per month);

8. Ignition Interlock Device ($75 per month);

9. A night in jail ($500 bail);

10. Trip to the impound lot ($85);

11. Embarrassment and/or loss of self-esteem;

12. Loss of social standing;

13. Multiple Court Appearances;

14. "Home Visits" by probation officer;

15. Interference with employment such as time missed from work;

16. Future employability and/or continued employment;

17. Increased Insurance rates and/or cancellation of Insurance (300% for 4 years);

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18. Stress and anxiety of pending case; and

19. Paying our fee.

Because the prompt and successful resolution of criminal cases is high on the priority list for all parties involved, closer attention should be paid to the particulars of the DWI client. Judges want to move more cases, Prosecutors want to advance in their respective offices and Defense Attorneys want to help their clients and receive payment for their services. Prolonging the life of a DWI case does not serve any of these purposes, but thoughtful and proper punishment does. Therefore, I believe that we should all pay closer attention to the client/accused’s concerns for a more efficient resolution of these cases.

There is one other point to make here. Successful investigation and advice for a DWI case is timely. The client must be interviewed, the facts investigated, the Prosecutor’s case reviewed, the Administrative License Revocation Hearing prepared for and presented, the videotapes retrieved and reviewed the client advised and consulted with and letters drafted.

Another matter, from the Defense Attorney’s point of view is fees. Most clients do not have all of the money it will take to resolve their case when they hire a lawyer. Most have never used an attorney before and are totally unaware of the time and costs involved for competent representation. Most attorneys accept a deposit toward a total flat fee. The remainder is financed over the life of the case. Being paid for representation is key in any business and necessary for continued existence.

In Texas, Judges are elected. They are therefore ultimately responsible to the voters for their jobs. One of the most touted election promises is "prompt and efficient resolution of cases." The other "vote getter" is the promise to be stern with "drunk drivers." Judges see the facts in the trials before them and should be aware that most DWI Defendants are not "drunk drivers."

Judges have an "angel" sitting on each shoulder. "Discretion" and "harmless error" are their names. Harmless error is most helpful in the appellate process and discretion reigns supreme in the Courtroom. I believe that Judges should understand that DWI is a unique crime and use their discretion in fashioning the most appropriate punishment for each offender before them.

The first opportunity a Judge has to exercise discretion in a DWI case is upon release from jail and whether to require a deep lung ignition device (DLD) on the offender’s car.

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I understand that all Judges are sensitive to "bad press." The last thing any Judge wants to do is open the morning paper to a story about a violent car wreck in which a mother and children were killed by "another drunk driver" who is "out on probation" in his or her Court! But this requirement is quite punitive, embarrassing and expensive to the offender and this requirement is allowed under our law where a person is

The specific statute (Code of Criminal Procedure Article 17.441) is vague and does not specifically "require" a DLD on everyone who has ever had a prior DWI or alcohol related case. The statute states that it is required when there is a "subsequent offense" under Chapter 49 of the Penal Code. The language of the prior statutes (Vernons §6701l) is omitted. This implies that if the "former" DWI is remote in time a DLD is not a mandatory requirement of bond.

The Judge also has the power and authority to not require such a device when it would not be in the best interest of justice. Judges should ask probing questions and rely on their wisdom and experience to effectively execute this powerful discretion.

Judges are lawyers too and should recognize and be aware that DWI laws are quite harsh. One such reality is the inability to grant deferred adjudication.

Deferred adjudication is a very tempting offer and a gracious order by the Court in other cases. It provides the Defense Attorney with a real alternative other than trial in severe cases.

Typically touted as leaving no record, modern databases for criminal records do not make a distinction for jail time, regular probation and deferred adjudication. Deferred adjudication is a major victory from the client’s perspective in any other criminal case.

Deferred dispositions also increase the confidence in the Defense Attorney and convey a message of reasonableness, understanding and justice from the District Attorney’s office and criminal justice system. Deferred adjudication is a "win-win" method of disposition that is legally unavailable for the DWI offender.

I understand that granting deferred adjudication is not within the Judge’s discretion. Some Judges however frown upon a District Attorney recommendation for a DWI reduction or dismissal as a policy. Judges should be reminded that the Prosecutor and Defense Lawyer are much more familiar with the facts of the case and have dealt in proper negotiation. These agreements are not presented on a regular basis. Judges should rely on the Attorneys’ wisdom and experience.

Another opportunity for judicial discretion is the specific conditions of probation. First of all, they should revisit the length of the probationary period ordered.

The Code of Criminal Procedure, Article 42.12 Section 3(c) states that, "The