Untangling how to charge a DWLI

Perry Cunningham

Assistant Criminal District Attorney in Dallas County

Transportation Code §521.457 might be intimidating at first (and eighth) glance, but it’s not as bad as it looks, especially with a couple of handy flow charts and this simple explanation.

Say you’re faced with drafting the misdemeanor information for a Class B Driving While License Invalid (DWLI) charge under Transportation Code §521.457. Not exactly the stuff that prosecutor dreams are made of, but it must be done. A quick look at 521.457 and—what!? There must be 10 subsections to this thing! A Class B misdemeanor can’t be this complex!
    The good news is that it’s not as bad as it looks. Just keep in mind that a Class B misdemeanor under §521.457 requires two paragraphs: one for the base, Class C offense and another for the Class B enhancement. I have developed a couple of flowcharts that should help: one explaining the process for the first paragraph (on page 23) and the other for the second paragraph (on page 24).

The first paragraph
The source of the first paragraph will come from subsections (a)(1)–(4) and subsection (b). That is, there are five different ways to charge the base Class C offense, because DPS can 1) cancel, 2) suspend, 3) revoke, 4) deny renewal of, or 5) issue an order prohibiting the defendant from obtaining a driver’s license. DPS calls these disabilities “enforcement actions” (abbreviated as EAs). How do you know which subsection of the statute to use as the first paragraph? Take a look at the defendant’s driver history summary and determine what disability (or disabilities) the defendant’s driver’s license was subject to at the time of the offense (i.e., which enforcement actions were in an “ACTIVE” status on the offense date). (There’s a sample of someone’s driver history summary on page 20.) If multiple active DPS enforcement actions were in effect, then there may be more than one way to draft the first paragraph. Any of these conditions existing at the time of the offense can form the basis for the Class C (first) paragraph. I have included a handy chart that cross-references the particular enforcement action to the section of the Transportation Code from which it came; check it out on pages 21 and 22. In Dallas County, we reference the applicable code section in the text of the first paragraph.
    But what if the defendant doesn’t have a driver’s license? Can I still charge him or her with DWLI? Yes—because the reach of §521.457 extends to the defendant’s privilege to drive; see subsection (a)(2). DPS will attach enforcement actions, if necessary, to an ID card or even to a driver with no ID card.

Driver’s History Header Section
The PDF below (labeled Driver’s History and EA Sections) shows a sample of a defendant’s driver’s history. Always note, if the defendant has a driver’s license, whether it was expired on the date of the offense. If so, and the driver’s license expired under a period of suspension, the first DWLI paragraph may be charged using the “expired” language under §521.457(a)(3).
    The “REC STATUS” field shows the defendant’s eligibility to drive in Texas. For DWLI, this status should be “NOT ELIGIBLE,” meaning that there is at least one active DPS enforcement action against the defendant’s driver’s license. An enforcement action is any action taken by the Texas DPS (suspension, revocation, denial of renewal, order of prohibition, etc.) against the driver’s Texas DL or ID. (Remember, the defendant’s privilege to drive in the State of Texas may be suspended or revoked under §521.457(a)(2); such a suspension or revocation can and will take place even if defendant has only an ID or no ID at all.)

Driver’s History Enforcement Action Section
The status of each enforcement action is provided in the Driver’s History Enforcement Action section (again, see the Driver’s History and EA Sections PDF below). Here are the options for a driver’s status:
ACTIVE: The enforcement action is in effect.
EXPIRED: An action with a definite end date has expired and is no longer in effect.
LIFTED: The department has removed the action, and it is no longer in effect.
PENDING:     The EA is pending; it is not in effect.
NEGATED: ALR hearing decision in the defendant’s favor.

Begin, End, and Lift Dates
On the same line as the EA status are the fields denoting “BEGIN,” “END,” and “LIFT” dates. The “BEGIN” date is when the EA goes into effect. The “END” date is when the EA is no longer in effect for those EAs that have a defined duration. The “LIFT” date is when the EA is no longer in effect for those EAs that do not have a defined period.

EA types
The most common enforcement actions are shown in the tables in the PDF below (Enforcement Action charts); they  cross-reference the EA to its originating Transportation Code section. Note that when the defendant has multiple “ACTIVE” enforcement actions, there may be more than one that can be used in the charging paragraph.
    In the PDF below (“Driver’s History and EA Sections PDF”), the driver’s DL has four EAs in effect: two each of “Suspended—Surcharge Due No Driver License” and “Suspended—Surcharge Due No Ins.” Any of them may form the basis for the first paragraph of the charge.
    Also note that the Driver’s History provided in the NCIC/TCIC report is a summary only. In some cases, the agency may submit the complete record obtained from DPS, but this is rare.

DWLI Flowchart (First Paragraph [Class C Offense])
Remember that charging a Class B DWLI requires two paragraphs: The first defines the Class C offense of Driving While License Invalid under Transportation Code §521.457(a) and (b). The second paragraph is the one that supports the Class B enhancement. Also, there may be more than one way to charge the first paragraph, e.g., where there are multiple active suspensions on the defendant’s DL and it expired during a period of suspension. You then have a choice on which first paragraph to use. See the flowchart, titled First Paragraph flowchart, below.


DWLI Flowchart (Second Paragraph [Class A or B Offense])
Now that you’ve got your first paragraph, let’s look at the enhancement paragraph. There are four possible ways to get to a Class B enhancement. One of the four is rarely seen, so there are three conditions that you will usually look for:
1)    a previous DWLI conviction (subsection (f)(1)),
2)    whether the defendant was operating without financial responsibility (subsection (f)(2)), or
3)    a previous suspension for an “offense involving the operation of a motor vehicle while intoxicated” (subsection (f-1)).
    Once in a great while you may see an enterprising peace officer charge a defendant with a violation of what became known as “Eric’s Law,” that is, §521.457(f-2). This is the lone Class A offense provided for in the statute, and it requires failure to maintain financial responsibility as the base Class C offense and a defendant who “caused or was at fault in a motor vehicle accident that resulted in serious bodily injury to or the death of another person.” In that instance, your second paragraph will be drafted from subsection (f-2).
    On this flowchart (which is below; it’s called “Second Paragraph flowchart”), start at the block marked “BEGIN HERE” in the top left. However, you may start your review for the second paragraph in the offense report, criminal history, or driver’s history if desired. Note also that there may be more than one option for the second paragraph; the terminations are not exclusive. If no termination is achieved (that is, you find no enhancement), then the offense is a Class C misdemeanor and should be filed as such.
    It is possible to charge the first paragraph of a DWLI without the DL history, e.g., where the offense report states the active suspension(s). However, it is always best to have it and review it before beginning your selection of charging paragraphs.
    Once you’ve got both paragraphs, you’ve just become the division DWLI expert. Not so bad after all. Good luck—and teach those traffic scofflaws a lesson!