DL Suspension Continues to Draw Scrutiny

| Aug 3, 2018 |

The U.S. Court of Appeals for the Fourth Circuit revived a lawsuit which a Virginia district judge had dismissed due to a technicality. The lawsuit involves the practice of suspending drivers’ licenses because of unpaid court fees.

Critics say this practice forces people into a deepening cycle of poverty. They point to people like Brianna Morgan. The Virginia single mom has not had a drivers’ license in three years because she cannot pay $400 in unpaid court fees. Ms. Morgan, who supports three children on a monthly disability check, simply said “”I really don’t have a way to pay it.” Texas is one of the forty states that has a similar policy.

Earlier in July 2018, a Tennessee district judge called the Volunteer State’s court fine/license suspension policy “powerfully counterproductive” and invalidated the law.

The DWLI Law

At first blush, Section 521.457 of the Texas Transportation Code is very straightforward. A person commits and offense if he or she “operates” a motor vehicle “during a period that the person’s driver’s license or privilege is suspended or revoked under any law of this state.” All the Driving While License Invalid cases that go to county or district court are Class B misdemeanors.

But there are some nuances here that only an experienced attorney can spot. This law uses the active verb (operates) as opposed to the participle (operating). That may seem like an insignificant detail, but it could be important. The DWI law uses the participle, because operatING could include things like sitting in a parked car. On the other hand, operateS implies that the defendant had actual control over the vehicle and was driving it at that moment.

There’s also an affirmative defense in Subsection (d). The defendant must receive actual notice of the suspension. The DPS always sends these notices to the address in the database. There is a presumption that such notice was sufficient, but it’s a rebuttable presumption. So, if the defendant has evidence of a new address, such as a dated lease or mortgage document, that may be enough to overcome the presumption.

Prosecutors in Tarrant County and elsewhere must always establish every element of the offense beyond a reasonable doubt. So, if even one juror has any “reason” to “doubt” any evidence, the defendant will be found not guilty.

Court prosecutors in both large counties (Tarrant) and small counties (Parker) not only have a high burden of proof to meet. They’re also very busy. Small county prosecutors have smaller caseloads, but there’s also less staff to deal with the cases. So, if the defendant has a decent defense, it is often best to set cases like DWLIs for trial. The prosecutor will not want to take several hours to try a Class B misdemeanor, so a good deal may be forthcoming. That could include reducing the charges to a Class C fine-only, even if the defendant has a prior DWLI conviction.

DWLI prosecutions are difficult, but not impossible, to fight. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. After-hours appointments are available.