Flying High: do marijuana offenses generally fare better than DWI’s?

By Jason Lawrence

In 2007, the Texas legislature passed sweeping legislation that essentially made sure that a DWI conviction will stick on your record until you die, due largely in part to a very strong Mothers Against Drunk Driving (MADD) lobby in Austin. As a result, DWI’s are becoming more expensive than ever, taking up the vast majority of misdemeanor prosecutors’ dockets. Another crime that is also clogging most misdemeanors prosecutors’ dockets is possession of marijuana offenses. In the most recent Texas legislative session (2013) there was a bill that proposed lowering the offense of possession of <2 ounces of marijuana to a Class C misdemeanor, punishable by fine only, but the bill never made it to the house floor. Had this legislation passed, most prosecutors would probably agree that their dockets would be significantly unburdened by a plethora of marijuana offenses.

The great marijuana legalization debate aside, the crime that most new prosecutors deal with are DWI’s, mostly because people refuse to stop driving while intoxicated or get just plain unlucky after having one too many. Most first DWI offenders often face an embarrassing night in jail and generally end up paying a large sum of money trying to get either a reduced charge conviction or a pay a whole arm and a leg to take it all the way to trial. Depending on location and experience, attorneys’ fees can vary generally from $2,000-$10,000 for a first offense DWI and that doesn’t include taking the case to trial. Throw in several thousand more dollars for attorney’s fees, possible expert witnesses, and a trial depending on the complexity of the case and $1,000/year ($2,000/year if your BAC was >.15) in mandated surcharges for three years to the DPS just to be able to get your driver’s license back, another $1,000 for an occupational license while your license is suspended for 90 days (180 days if you refused to blow and didn’t request or lost an ALR hearing), thousands in court costs, potential fines, etc… and those seven drinks you had probably weren’t worth the thousands of dollars they ended up costing you.

I would bet my bottom dollar that no District Attorney in Texas would venture to say that they were soft on driving while intoxicated, simply because they would never get re-elected if they took that stance. Subsequently, the prosecutors that work for them do not have the same leverage in plea bargaining that they have with possession of marijuana offenses. Since a DWI can never be expunged nor can deferred adjudication be offered, people have to either take a DWI conviction, or if the state has a weak case, often a reckless driving or obstruction of a highway conviction. Someone who is arrested with 2 ounces of marijuana, however, often receives a much better and attractive plea deal since the state can offer deferred adjudication, essentially delaying the judge’s adjudication of guilt until after the defendant completes a probationary period. If the defendant completes probation successfully without any hiccups, that individual will not have a misdemeanor conviction on their record at the end of probation, unlike their DWI counterparts.

At the end of the day, the many people who have lost loved ones or have been negatively affected by drunk drivers are angry and will always be angry, and that is why most of the attention has shifted to harsher punishments for DWI offenders over the recent years and less attention has been given to those who choose a smokier route to committing a crime. Perhaps it is because over 50% of Americans are now in favor or legalizing marijuana and many states, such as Colorado and Washington, are beginning to legalize consumption. With a strong pro-alcohol lobby in Austin, it is unlikely that DWI checkpoints are going to come to Texas any time soon, despite consistent efforts made by MADD every legislative session. Thus, Texas citizens are going to continue to feel more comfortable driving home after they’ve been drinking than they would if they knew there was a chance of a sobriety checkpoint.

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