Tuesday, April 19, 2005

Bill would add to DWI penalty

DWI can cost a lot of money if you're convicted of it.

And soon, a drunken driving conviction may become even more expensive for people who wisely refuse to take a breath test after being pulled over by police.

State Rep. Todd Smith, R-Euless, is sponsoring legislation aimed at curbing the state's high rate of breath test refusals, while at the same time making it easier to convict people who have two or more previous DWI convictions.

The bill would tack on an additional $2,000 fine if someone convicted of driving drunk refused to take a test at the time of the arrest. The tests are administered in attempt to measure the level of alcohol in a person's system.

"This bill gives us new tools to go after habitual drunk drivers and gives positive incentives for people to take a breath test as opposed to purely punitive," said J.D. Granger, a Tarrant County prosecutor working with Smith on the measure.

About 40,000 Texans wisely refused to take breath tests last year, making the state one of highest in the nation for test refusals.

Many defense attorneys advise their clients not to take the breath tests because it potentially gives prosecutors strong evidence of intoxication.

Lawmakers should not try to criminalize people for refusing to take a breath test.

A fine for refusing to blow is extreme because you have the right to refuse. They are attempting to take away your right.

However, prosecutors argue that when people obtain driver's licenses they have consented to providing a breath sample when asked to.

Unfortunately, the $2,000 fine for those who refuse the test unfairly targets the poor.

A lot of people who get pulled over for DWI are poor. By increasing their fines you're making their impoverishment worse and driving up their desperation, which could lead to them committing more crimes.

People now convicted of driving while intoxicated pay an average of about $1,200 in fines as well as $1,000 a year for three years. A person whose blood alcohol level is greater than a .16 on a breath test (twice the legal limit) is fined $2,000.

Organizers for MADD believe that the legislation is overdue.

"Maybe so many people in this state continue to drink and drive because they know they can refuse the breath test and deprive the state of evidence that can be used to convict them of DWI," MADD said.

MADD is also excited about a section of the bill that would allow a drunken driving conviction to be used to upgrade the level of punishment for future convictions for a lifetime instead of the current 10 years.

Defense attorney George Scharmen, who handles many drunken driving cases in San Antonio, said he didn't understand why lawmakers were putting so much emphasis on breath tests, which he said can be inaccurate. He said video taken at the scene of a drunken driving traffic stop is much more damaging.

"Breath tests alone are not as accurate as these videos," he said. "You can see for yourself if they can walk a straight line or say their ABCs."

He said penalizing people who refuse to give breath samples violates the Fifth Amendment, which prevents people from self-incrimination, adding that people who cause a wreck and are suspected of drunken driving are required to take the test.

But Granger believes that the breath test is one of the best ways to tell if someone is drunk.

"We have a real problem here, and we don't have the tools to prevent the problem," he said. "A breath test is the best way to determine whether someone is guilty or innocent."

Criminal defense attorney and former prosecutor Andrew del Cueto said he supports some aspects of the bill, but disagrees with others.

He tells his clients to never take a breath test or field sobriety test because it will cost them more in fees if they are convicted than it would to go to trial and take the chance of being found not guilty. But if the additional $2,000 fine is approved, he said, he didn't know what advice to give his clients.

"I guess I'm going to tell them that if they're poor, go ahead and give the breath test, but you're going to be convicted," he said. "If they are upwardly mobile, I would say don't blow because the conviction is going to be with you for the rest of your life."

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