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What is Fair Punishment on a DWI?

What are judges and prosecutors concerned with on a DWI? One of their main concerns is recidivism. Contrary to popular belief, the average rate of repeat for a first time DWI is approximately 21%[i]. Most first time DWI offenders made a mistake and will never be back in the system. In fact, most are going to punish themselves far greater than what a court or prosecutor could do to them.

Does BAC (blood alcohol concentration) on their DWI predict their propensity to reoffend? The answer is “no.” A study published in 2013 in Criminology and Public Policy[ii] determined this. The interlock industry has managed to pass laws nationwide (including in Texas). Of those laws, many demand first time offenders to install an interlock system. This is overreaching for the vast majority of first time offenders. For example, Texas requires interlock as a condition of probation if a person’s BAC is .15 or above. Also, many judges order the devices as conditions of bond. However, this assumes that every first time DWI offender has a substance abuse problem.

 The problem with punishment for first time offenders

What about the soccer mom who had one too many margaritas who will never get arrested again? The hard working young adult who let things slip out of hand out of character at a bachelor’s party? Passing laws on the basis of BAC does not address the problem of a person’s propensity to reoffend. The vast majority of first time offenders will never face arrest for DWI again. As a matter of fact, requiring an interlock has little effect on future lifestyle choices. For example, a North Carolina study proved that interlock programs may control a driver’s behavior while a condition of an occupational license, but may not serve to change drinking behavior over time[iii]. Technological devices cost money, need monthly calibrations, and time. Thus, to order everyone to install one does not equate. So, what is the best way for a judge to determine a person’s recidivism potential and fair punishment?
According to a California study, this involves screening and evaluating personality factors[iv]. For example, psychological attributes of addictive personality disorders, coping mechanisms, and impulse control. These factors are more important in assessing fair sentencing recommendations than “office policies”. DWI is not a one size fits all offense. Unlike crimes of moral turpitude, most intoxicated drivers do not intend harm. The DWI defense lawyer must understand these principles. These principles help to communicate and negotiate what is fair for their clients. The jail punishment range for a first time DWI in Texas ranges from 0 to 3 days (depending on alcohol level). The legislature constructed a fair punishment for people who made mistakes.


Why Victim Impact Panels are not effective

Not everyone needs to hear from victims or receive substance abuse counseling. The judges and prosecutors have misplaced their good intentions. Once again, California studied the recidivism rates. Of those accused of DWI who attended a MADD Victim Impact panel, they found “no differences . . . in recidivism rates between the VIP group and either the no-show group or the two control groups[v]. In short, this is not in line with what is fair or logical. Juries seem to know this when assessing punishment

Mimi Coffey – DWI Defense Lawyer in Dallas County, DWI Lawyer in Tarrant County, DWI Lawyer in Wise County, DWI Lawyer in Johnson County, DWI Lawyer in Parker County, DWI Lawyer in Collin County, DWI Lawyer in Denton County

[i]  S C Lapham, BJ Skipper, G L Simpson, “A Prospective Study of the Utility of Standardized Instruments in Predicting Recidivism Among First DWI Offenders”, Journal of Studies on Alcohol and Drugs, 58(5), 524-530 (1997).

[ii] Dugosh, Karen L.; Festinger, David S.; Marlowe, Douglas B., Overview of: “Moving Beyond BAC in DUI: Identifying Who is at Risk of Recidivating,” Criminology & Public Policy, 12(2), 179 (2013)

[iii] Popkin, Carol Lederhaus, et al, “An Evaluation of the Effectiveness of Interlock Systems in Preventing DWI Recidivism Among Second-Time DWI Offender,” Cologne: Verlag TUV Rheinland (1993), Alcohol, Drugs & Traffic Safety T92 Ed.

[iv] S C Lapham, et al., supra note 1

[v] Shinar, D., Compton R P, “Victim Impact Panels: Their Impact on DWI Recidivism”, Alcohol, Drugs & Driving, 11, 73-334 (1995).

About Mimi Coffey

Mimi Coffey
Mimi Coffey is a trial attorney with 24 years experience. She is the founder of The Coffey Firm, serving Dallas, Tarrant and Collin counties. She is board-certified in DWI by the National College of DUI Defense (NCDD) and is a Regent of the NCDD. Mimi Coffey also listed on several “top” directory listings such as DWI attorneys Tarrant County, DWI Lawyer Fort Worth, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. I am very involved with the community DFW caring DWI lawyer, Texas Tech School of Law foundation and I enjoy using the skills I have developed to give back to the community. She has also appeared numerous times as a legal commentator for CNN, National Fox News, as well as local Dallas/Fort Worth stations on DWI-related stories. She is also a frequent speaker at both national and statewide seminars. She is a prolific trial attorney with a proven trial record. She has tried over 300 cases, with 80% of them being jury trials in her 18-year career. Her success includes everything from .21 breath tests, blood tests to 3 car accident cases just to name a few. Mimi’s cases have also made good case law for the State of Texas. For example, in Tarvin v. State, it was found that weaving within your own lane was not a traffic violation. In Lajoie v. State, the courts determined that the defendant’s request to have his attorney must be suppressed as opposed to used as evidence of guilt. She is the author of Texas DWI Defense: The Law and Practice. She is also the author of three nationally-published articles and four statewide articles. Mimi has twice attended Indiana University’s Borkenstein Course for state toxicologists both on alcohol and drugs. She has also completed the NHTSA SFST Course, SFST Instructor Course and the 12-Step DRE Mini-Course Program. She is also one of the first attorneys in the United States to attend the Axion Labs Gas Chromatography Training. Her minor in college was Geology lending her a comprehensive and disciplined scientific mind when it comes to scientific and mathematical issues such as blood and breath testing. Mimi has won the President’s Heart of a Champion Award presented by the Texas Criminal Defense Lawyers Association (TCDLA) numerous times. Mimi also led the effort to get the State Bar of Texas’ Board of Legal Specialization to recognize the NCDD’s DWI Certification. Mimi has been active in 4 legislative sessions in fighting against bad DWI laws. Her efforts prevented the breath/blood test refusal as being a separate crime. She has advocated for true deferred adjudication for DWI. Mimi also sued a Dalworthington Gardens police officer for illegally drawing blood. Since her lawsuit, the 2nd Court of Appeals ruled against police officers drawing blood. (The Court of Criminal Appeals overturned this). Mimi also sued the Texas Department of Public Safety for its double jeopardy surcharge program. Since the initiation of her suit, Texas DPS has instituted amnesty programs based on one’s earning potential.

If you would like to contact the author, please visit: https://www.mimicoffey.com

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