Plea Bargains that Involve a Reduction of Charges: DWI to Obstructing a Highway, for instance…

Robert Guest wrote about a series of cases he has defended of late where the result was a reduction by the state to Obstructing a Highway for a plea instead of taking a DWI to trial….

I’ve had some recent DWI cases plead to Obstruction of a Highway. In each case my client was charged with a DWI, and the case had problems. The choice was between having a DWI jury trial, or pleading guilty to Obstruction.

What is Obstructing a Highway? Read this earlier post.

I usually, if not always, recommend taking the Obstruction plea rather than go to trial on the DWI.


1. A DWI Lasts Forever
In the past, a DWI conviction had a ten year limitation for enhancement. That is, if you got 3 DWI’s that were each 11 years apart, the State couldn’t enhance your case to a felony (DWI 3rd is a felony in Texas).

Not any more. The lege changed the law so that a DWI conviction can be used against your FOREVER. That is, if you get a DWI in 2008, and another in 2028; then the original 2008 conviction will be used to "enhance" your 2028 case. That is, the punishment is worse (from Class B to Class A misdemeanor). Every client I’ve had with a DWI charge states they will never drink and drive again. However, forever is a long time.

2. Surcharge

A few years ago a doltish majority in Austin found a great way to balance the budget. Instead of cutting spending the lege invented millions of dollars in revenue from "surcharges" they would collect from those convicted of DWI. In theory those convicted of DWI are supposed to pay at least $1,000 a year to keep their license. In practice, most of these fees are never collected.

These "surcharges" should be unconstitutional (double jeopardy) in that they punish a person twice for the same offense. DWI suspects already face fines, fees, court costs, and forced donations to MADD (victim impact class). Unfortunately Texas appellate courts are more than willing to justify constitutional violations in DWI cases.

By pleading to OAH, clients don’t risk the possibility of paying thousands in extra "surcharges" just to keep their DL.

3. Jury Trials
One of the services I offer is taking an uncertain criminal situation and providing guidance and direction to my clients. I am in the certainty business. When my clients are offered and OAH plea I can guarantee the DWI will be dismissed (not expunged though). With a jury trial, there are few things I can guarantee. Most defendants aren’t exited about the idea of having a jury trial. They would much rather take the certainty of an OAH charge.

Even with a strong case for the defense I can’t guarantee a jury will find a client not guilty. The State has professional coached witnesses, and jurors are inundated with DWI propaganda. With those factors working against the innocent, an OAH plea can be a great resolution to a DWI case.

Having set out Robert’s entry in its entirety, my comment goes to the State’s attitude in offering these sorts of "deals".  Like Robert pointed out, for a client to be offered a plea bargain where they do not take a hit on their criminal history for Driving While Intoxicated, the case usually "has problems".

These problems could be with the officer’s evidence (bad video or audio), or it may be that the client does extremely well on the SFST’s and the only evidence against the client is what the officer observed, allegedly, in the eyes while conducting the horizontal gaze nystagmus (HGN) test.  Or, the problem could be with any other combination of factors.  Setting those possibilities aside…

It troubles me that most State prosecutors will not just dismiss the case, if it has problems.  They are out to get something from the client … even if it is this reduced charge with reduced penalties.  To be clear, I am not complaining about reductions in general, but the attitude that often accompanies the reduction…"well your guy is getting lucky today". This happens in Assault Family Violence cases all too frequently.

While it is a heck of a deal to avoid a DWI conviction, if the evidence is lacking, for whatever reason, shouldn’t the prosecutor just acknowledge that and move on? Aren’t we tired of allowing political lobbyists to dictate what our prosecutors can and cannot do (thank you M.A.D.D.). The burden of proof is on the State and as such, I wish more prosecutors would acknowledge that fact rather than insisting on "just getting a conviction" and being so "stat driven".

And one other point, we all must be careful in how these "agreements" are prepared, because as I read the law, Obstructing a Highway, which is a very common plea agreement for a DWI is not a lesser included offense of the original charge and therefore could allow an overzealous prosecutor to refile the original charge….See, Hill 521 S.W.2d 253, 255 (Tex.Crim.App. 1975).