Texas Mulls DWI 'Lite' Category

Prosecutors press for law; bar hoppers and defense attorneys say not so fast.

November 17, 2010, 3:45 PM

Nov. 24, 2010— -- Hot Texas summers. Fall football weekend. Barbecues, tailgating -- and drinking.

Alcohol is an integral part of the Lone Star state culture. Texas is in the Top 5 in beer consumption, per capita, among the states, and is home to internationally award-winning Tito's Handmade Vodka.

But with all that drinking comes dangerous consequences. The Texas Department of Transportation reports the state has one of the highest number of Driving While Intoxicated crashes and fatalities in the country. In 2009, more than 142,000 Texans were arrested as third-time or more drunk driving offenders.

This January, Texas law enforcement officials and prosecutors may have another tool to crack down on drunk drivers as the Texas Legislature considers passing a Driving While Ability Impaired law. The proposed law, dubbed "DWI Lite" or the "buzzed driving law," would create a new misdemeanor charge for driving with a .05-.08 blood alcohol content. The legal limit for a Driving While Intoxicated charge in Texas is .08.

Each year, thousands of drivers in Texas who are arrested for DWI are allowed to plea their charges down to a non-alcohol related offense, such as reckless driving or obstructing roadways. Law enforcement agents said DWAI will be a way to allow defendants to plead out of DWI but still have an alcohol-related offense on their record. Then, if a repeat offense occurs, prosecutors will have the option to enforce stricter penalties.

In Texas, the penalty for a first-time DWI is a fine of $2,000 and a 90-day driver's license suspension. On second offense, the fine doubles and the driver's license can be revoked for up to two years.

"When people are arrested for an alcohol-related offense, it needs to show up on their record," said Austin PD Commander of Highway Enforcement Jason Dusterhoft. "Our No. 1 goal is to keep drunk drivers off the road and keep them from killing people. DWAI would be a way for us to work toward eliminating repeat offenders."

Austin police chief Art Acevedo and the Austin police department are spearheading the campaign for the new DWAI law. Acevedo appeared before the Senate Committee for Criminal Justice in early October, asking lawmakers to consider passing the law when the Senate Committee for Criminal Justice convenes in January. Acevedo said the motivation for passing DWAI in Texas would be to clear the courts, and streets, of the countless DWI cases from repeat offenders.

"Am I Going to Be Breaking the Law?"

The Texas Department of Transportation reported that in 2009 almost one in three people who died in a car wreck were in DUI-related crashes.

While the proposed bill is popular among law enforcement agencies across the state, not all organizations have been so quick to get behind it. Mothers Against Drunk Driving legislative director Bill Lewis told the Austin American-Statesman he did "not see how [the DWAI law] would hurt," but MADD has not officially endorsed the proposed law.

Instead, the organization released a statement, saying it "remains focused on legislation proven to save lives, such as requiring ignition interlocks for all convicted drunk drivers with an illegal BAC of .08 or greater and allowing law enforcement officers to conduct sobriety check points."

Some Texas residents are concerned that the potential law essentially lowers the legal drinking limit and will further restrict responsible drinkers from having a good time.

"I am fairly aware of when I have had too much to drink and don't drive," said 25-year-old Austin resident Jonathan Russo. "But now, if I have one or two beers with dinner and want to drive home, am I going to be breaking the law? Does this give cops more of an excuse to pull me over?"

For a man of Russo's size, about 5-feet-9-inches and 155 lbs., two 12 oz. are enough to potentially raise his BAC to .05, according to data compiled by the National Highway Traffic Safety Administration.

Austin defense attorney Jamie Spencer said the DWAI comes across as a move toward a zero-tolerance policy. Under Texas law, if police officers can prove a driver is impaired behind the wheel, they can issue DUI citations, even if the driver's BAC is under .08. Spencer believes a DWAI statue would allow law enforcement to arrest drivers with even less evidence.

"It may become a situation where every driver with even the hint of alcohol on their breath will be taken to jail," Spencer said. "And with the limit lowered to .05, more people may just assume they are guilty, cave and give in to the charges."

Punishment, or Alternative Transportation?

When drivers plead a DUI charge down to reckless driving or obstructing a roadway, it is not out of pity on the prosecutor's part, Spencer said. Usually he has found that in those situations, the prosecutor's case against the driver is weak or the driver was not actually impaired when arrested.

Colorado and New York are the only other states that currently have a DWAI law on the books, and California has a similar offense, often called a "wet law." Under Colorado DWAI law, prosecutors are only required to prove that defendants are "affected to the slightest degree, so that the person is less able than he or she ordinarily would have been to exercise clear judgment."

The punishment for DWAI in Colorado, which is a class C misdemeanor, includes a fine up to $500, 24 to 48 hours community service, potential jail time but no driver's license suspension. Punishments are similar in New York.

In those two states in 2009, a combined 479 drivers died in alcohol related crash, less than 50 percent of the deaths in Texas, according TxDot.

Law enforcement agents, citizens and defense attorneys are in agreement, however, that even one death related to drunk driving is one too many and something needs to be done. Some would just like to see other options explored.

"[Texas] doesn't have a good public transportation system like New York City," Spencer said. "If you would spend the money to give Texans viable options of other safe transportation methods, I think we would see our DUI wreck and fatality numbers decrease significantly."

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