How is the surcharge legal under ex post facto etc.?

The “surcharge” law includes more violations than DWI, also including Failure to Maintain Financial Responsibility, Driving While License Invalid, Driving Without a Valid License (i.e.; No Driver License, No Commercial Driver License, No Endorsement Violation, No Motorcycle License, Operating with License for other Class Vehicle). The non-DWI surcharges typically run between $100 and $250, which must be paid to avoid a license suspension.

The DWI surcharge law, Transportation Code § 708.102, went into effect on September 1, 2003. It states, in relevant part, that

(b) Each year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.

(c) The amount of a surcharge under this section is $1,000 per year, except that the amount of the surcharge is (1) $1,500 per year for a second or subsequent conviction within a 36-month period; and

(2) $2,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.16 or more at the time the analysis was performed.

The question is whether there could be an ex post facto problem with the statute. Because the statute also on its face applies to those “finally convicted” of DWI prior to September 1, 2003, an ex post facto question is appropriate.

“An ex post facto law: (1) punishes as a crime an act previously committed which was innocent when done; (2) changes the punishment and inflicts a greater punishment than the law attached to a criminal offense when committed; or (3) deprives a person charged with a crime of any defense available at the time the act was committed.” Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002). Your “ex post facto” whether the surcharge is retroactively “greater punishment than the law attached…when committed.”

Our Courts divide consequences of convictions into “punitive” and “remedial.” “Remedial” consequences are general public policy/protective measures such as requiring sex offenders to register, even retroactively. Punitive consequences involve the actual punishment for the crime, such as days in jail and fine for the offense. However, consequences can be punitive even if drafted as civil remedial measures. The question as to whether a license surcharge is “punishment” for Constitutional purposes was answered in Ex parte Drake, 212 S.W.3d 822 (Tex. App. Austin, 2006). Because the Court of Criminal Appeals refused the subsequent petition, Drake is binding statewide.

In Drake, Ashley Drake argued that her driving while license suspended surcharge was “punishment” for Double Jeopardy purposes. The Drake Court first noted that “[w]hen confronted with an attack on the constitutionality of a statute, [it] presume[s] that the statute is valid and that the legislature has not acted unreasonably or arbitrarily.” “The burden rests on the person who challenges the statute to establish its unconstitutionality.” They further noted that:

A court must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference of one label or the other. Even in those cases where the legislature has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.

(citing Hudson v. United States, 522 U.S. 93, 99 (1997)). The Court found nothing in the statutory language that the surcharge was intended to be a criminal penalty, so it moved on to the “so punitive in purpose or effect” question.

The Court stated that the “so punitive” was:

whether the surcharges (1) involve an affirmative disability or restraint; (2) have historically been regarded as punishment; (3) come into play only on a finding of scienter; (4) promote the traditional aims of punishment--retribution and deterrence; (5) apply to behavior that is already a crime; (6) have a rational alternative purpose other than punishment; (7) are excessive in relation to this alternative purpose. … Only the "clearest proof" will suffice to override the legislative intent and transform a civil penalty into a criminal penalty.

The Court found that the surcharge was not a disability or restraint, that a monetary penalty has not historically been viewed as “punishment,” no scienter (intent) was required to be in the program, that the deterrent effect served civil and criminal goals, that the program raises money for medical facilities and deters irresponsible driving, and the monetary sanction was more than nominal but not “excessive in relation to their intended purpose.” They affirmed the appellate Court’s finding that the surcharge was not criminal “punishment” for Constitutional purposes.

This logic would likely be followed in an ex post facto or Double Jeopardy challenge to the DWI surcharge, found in the same statute. The only difference is the much higher DWI surcharge. The Courts would analyze whether the increase is “excessive in relation” to preventing driving while intoxicated. If they did not find “punishment,” there could be no “greater punishment” for ex post facto purposes. Further, if one was were charged with having committed the offense on or after September 1, 2003, there should not be an ex post facto question.