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 marijuana to a Class C misdemeanor. The bill never made it to the house floor for a vote.
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.
Since a possession of marijuana case is often much more objective than a very subjective DWI offense, it is generally relatively straightforward for both the prosecutor and defense attorney. Generally “you had weed or you didn’t” is much easier to determine that “you were intoxicated or you weren’t.” So, why does it make sense financially to smoke more weed and cut out the booze? Well, the plain and simple truth is that you are likely going to pay significantly less in legal fees and do much less probation if caught.
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.
So, for the time being, it’s not unfair to say that those who feel like feel like trading a beer for a joint can often expect far less punishment than those who choose to drink one too many beers and drive home. And by a joint, I mean more than 2 ounces of marijuana but less than 4, roughly two standard Ziploc bags of marijuana completely full. Getting caught with this amount of marijuana yields the same punishment as driving with a BAC >.15 (a Class A misdemeanor: maximum $4,000 fine and 1 year in jail), the difference being that you can receive deferred adjudication for having two Ziploc bags of weed on you but that DWI will stay with you forever. If in either case someone is arrested, it’s undeniable that those facing an alleged possession of marijuana offense will likely fare much better in their punishment and their pockets than those facing an alleged DWI offense in the majority of cases across the state.