The stakes are higher for citizens charged with Driving While Intoxicated (DWI) in Texas.  Stealing from the gambler's mantra that 'the house always wins,' Texas now has a law that tacks on a "surcharge" to the license of every person convicted of DWI who was arrested on or after September 1st , 2003. [1]  The practical effect of this law will be that more motorist driving will be without a license or insurance, and that there will be an explosion of court dockets as judges try to grapple with an increased number of trial requests and Driving While License Suspended filings.

1. How it is Applied

The amount of the "surcharge" depends on two factors:
a) whether the individual takes the breath test and his/her score; and,
b) any prior DWI conviction history.  The length of the term of any assessment is three years from the date of the conviction. [2]

Working with the numbers in the statute, the following fees will be assessed:

a) $1,000 per year for a person with no prior convictions for DWI;
b) $1,500 per year for a person who has been previously convicted of a DWI within a 36 month period preceding the date of the relevant conviction;
c) $2,000 per year for a person who gives a blood, breath, or urine specimen, which shows an alcohol concentration of 0.16 or higher, regardless of any useable DWI convictions.

 Taking the three year maximum term of assessment to its logical end, this equates to a total possible "surcharge" on a DWI person's license of $3000, $4500, and $6000, respectively.

2. Notice of the "surcharge" and failure to pay.

According to the law, the Department of Public Safety will send notice to the convicted driver of the surcharge assessment by first class mail. [3]   The notice will be sent to the person's most recent address as shown on Department of Public Safety records.  Most likely, this will be the address listed on the person's current driver license.  The statute does not specifically answer the question of when a person is deemed to have received notice, but one should expect the application of the same general rule dealing with notice in driving while license suspended cases, which creates a presumption of 'notice' if mailed "in accordance with law." [4]   Additionally, the statute does not indicate when, after the conviction, the person will be notified of the surcharge or what will happen in the event the person decides to appeal.  The only guidance provided is that the surcharge applies to all "final convictions," regardless of probated sentences. [5]   Here, it must be noted that DWI convictions are not "final convictions" under Texas law, so it appears that the surcharges will not be proper if the case is on appeal.

Once the Department of Public Safety "sends" notice, the person must pay the surcharge or enter into an installment agreement to pay before the 30th day after the date notice is sent. [6]   Again, the statue only notes the Department of Public Safety obligation to send notice and does not address problems associated with delays in receiving such notice.  It's certainly foreseeable that a person will be sent notice and not receive it until well within the 30 day time period; therefore, creating a shorter period of time to pay the surcharge or enter into an installment agreement.  Failure to pay the surcharge or enter into an installment agreement within this 30 day period will result in an automatic license suspension. [7]   The license will remain suspended until the balance of the surcharge is paid. [8]

The new surcharge law may not be constitutional for at least two reasons.  First, if the surcharge is deemed to be really a "fine" by another name, then the state and federal constitutional prohibitions against being placed in jeopardy twice should preclude the imposition of another fine since one was already assessed in the DWI case after a conviction there.

Second, a .16 BAC test result creating an increase in the surcharge may be subject to a constitutional challenge because it presents a penalty for non-criminal conduct.  The Texas Penal Code makes it illegal to have a .16 BAC or higher in one's body at the time of driving, not at the time of testing.  The BAC factor in the statute that triggers the increased surcharge amount is result specific, regardless of The Department of Public Safety's inability to relate the BAC score back to the time of driving.  Accordingly, the increased penalty assessed for a .16 BAC actually creates a "status offense" and may violate the due process/due course clauses because it provides for cruel and unusual punishment in violation of the state and federal constitutions.  Moreover, because the surcharge cannot be assessed until after a conviction, the use of general verdicts in DWI prosecutions may violate state and federal constitutional protections relating to double jeopardy.  For example, if the surcharge is indeed a fine, then a general verdict will not establish a double jeopardy bar where a DWI conviction was based on loss of normal use and .08 or higher.  The reasoning is that there would be no way to know which theory of intoxication the fact finder relied upon to decide guilt, i.e., loss of normal use of mental and/or physical faculties, a BAC of .08 or higher, or both. [9]   Clearly, there will be more litigation in the future on surcharges and their affect.

[1] See Tex. Transportation Code, Chapter 708, Subchapter C §708.101.  The original language in the statute assessed the surcharge retroactively to DWI " convictions that became final" on or after September 1 st , 2003.  HB-2, a byproduct of the 3 rd Legislative Special Session, eliminated the retroactive language in the statute to make the surcharge applicable to DWI convictions with "an offense [date] committed" on or after September 1 st , 2003.  Accordingly, the legal department of the Department of Public Safety has indicated that they will not enforce the surcharge on persons convicted of DWI wherein the offense date was prior to September 1 st , 2003.

[2] See Tex. Transportation Code, Chapter 708, Subchapter C, §708.102(d).

[3] See Tex. Transportation Code, Chapter 708, Subchapter D, §708.151.

[4] See Tex. Transportation Code, Chapter 521, Subchapter S, §521.457(d).

[5] See Tex. Transportation Code, Chapter 708, Subchapter A, §708.003.

[6] See Tex. Transportation Code, Chapter 708, Subchapter D, §708.152(a).

[7] Id.

[8] Id. at §708.152(b).

[9] A general verdict does not allow a jury to report a finding of acquittal on a specific theory of prosecution.  From a fundamental fairness analysis, it would seem to violate due process for a jury to acquit on .08, convict on loss of normal use, and have DPS assess an increased surcharged amount based upon a .16 BAC.