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APD Chief Acevedo’s recommendation for new criminal charge DWAI

DWAI (Driving While Ability Impaired) criminalizes driving with a blood alcohol content for .05 to .07.  Chief Acevedo has gone on the record supporting the legislative enactment of DWAI.  This proposed legislation is simply unnecessary and absurd.  There is not one valid reason to support this proposal.  Chief Acevedo comes from California, where they have a similar offense commonly known as a “Wet Reckless”, which is commonly used to reduce the charge of Driving Under the Influence or what we call here in Texas, Driving While Intoxicated.  The way it works is, if the State/Prosecutors don’t feel confident in their case to prove it at trial, or for other reason are not willing to go to trial, they offer to dismiss or reduce the DUI/DWI to a “wet reckless” or a DWAI hoping to facilitate a plea bargain.  In jurisdictions that have a “wet reckless” or DWAI like California and Colorado, the punishment is generally less severe than the underlying charge of DUI/DWI.

Two problems immediately reveal themselves with this idea.  One, a first offense DWI in Texas is a class B misdemeanor, it carries a 180 days in jail, a $2,000 fine, and a litany of collateral consequences to your driver’s license, insurance, employment prospects, etc.  In Texas today, where prosecutors do not have a DWAI to negotiate with, offers of Obstruction of a Passageway or a Reckless Driving, both also class B misdemeanors, are common substitutions.  The difference between DWAI and Obstruction/Reckless, is the no mentioning of alcohol, and accordingly, none of the common collateral consequences associated with DWI.  I would be very hesitant to advise a client to plea to a charge of DWAI because there is seemingly no incentive or benefit.  Driving While Ability Impaired does not sound any different than Driving While Intoxicated to someone who is not a lawyer or a member of the criminal justice system as opposed to Reckless Driving or Obstruction of a Passageway which have no mention of alcohol involvement.  Chief Acevedo stated that people who plea in Texas to Obstruction/Reckless do not get the alcohol counseling they need.  This is simply false.  Ask any judge or prosecutor in Travis County, and they will tell you people on probation for these charges take the EXACT same classes as people on DWI probation.

Another problem with the proposed DWAI, is how will the state classify it? A class B misdemeanor like DWI, is the lowest misdemeanor that carries any jail time.  It is irrational to classify DWAI a class B, since it criminalizes BAC levels at .05-.07 the same as DWI which criminalizes BACs greater than a .08.  If we make DWAI a class C, then it carries a fine only punishment, in other words, it is just like a Speeding ticket.  This does not serve any punishment rationales such as deterrence, retribution, or rehabilitation.

Further, criminalizing people for driving below the legal standard of .08 is criminalizing responsible conduct.  There are no scientifically peer-reviewed studies that suggest dangerous impairment at BACs from .05-.07.  This is precisely why the legal limit was reduced a few years ago from .10 to .08, because no dangers were found below a .08.

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