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Austin police frustrated with DWI conviction rates

While DWI arrests continue to rise in Austin, the city's top cop doesn't think enough offenders are convicted of the crime.

AUSTIN -- While DWI arrests continue to rise in Austin, the city's top cop doesn't think enough offenders are convicted of the crime.

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"Life is about accountability. It's about paying the price for making a poor choice," said Austin Police Chief Art Acevedo.

Yolanda Mason agrees. A drunk driver hit her in 2012. According to police dashboard camera video, the driver who hit her was so drunk he couldn't stand up to do the sobriety test.

Court records show the driver, Richard Rivera, had a .246 blood alcohol level -- more than three times the legal limit.

"I said, 'Have you been drinking?' and he said, 'Yeah.' You couldn't deny it, you could actually smell it," said Mason.

It was Rivera's third DWI arrest. It should have automatically qualified him for a felony conviction, which carries two to 10 years in prison, but court records show a 1983 DWI conviction got "set aside," essentially dismissed, after he agreed to serve probation.

So, the courts considered Rivera's last conviction a misdemeanor. He received two years probation.

Nearly two years later, Mason still suffers from neck, back and shoulder pain.

"I took one for the team I guess, right? I got hurt, but he could've killed someone," said Mason.

DWI arrests in Travis County are up nearly 24 percent over the past three years, yet KVUE News discovered more than a third of cases did not receive DWI convictions.

According to records provided by the Travis County Attorney's office, 37 percent of all first time DWI cases are re-filed as other charges, like obstruction, received deferred prosecution or a dismissal.

Those numbers are a frustration for officers like Officer Bob Mitchell in Austin's DWI unit.

"Because what's that person learned? They've learned that they can go out, they can get caught and they can still get away with it," said Mitchell.

For Acevedo, the numbers reflect a long history of weak prosecution.

"Last time I checked, we're not known for being the toughest county on crime," Acevedo said.

David Escamilla is the Travis County Attorney.

"It's a challenge we face across the state with prosecutors," Escamilla said.

His office's biggest challenge includes prosecuting thousands of DWI cases a year with limited staff. Each prosecutor reviews each case independently, as opposed to other county courts within San Antonio and Houston, where DWI cases get automatically filed as different charges if defendants qualify.

"It's not a perfect system by any means, but we found that rather than doing the cookie-cutter approach in Harris and Bexar [counties], on a case by case basis, we think we have a better understanding of the defendant in front of us and make a better judgment whether they're likely to re-offend," said Escamilla.

Escamilla also points to cases when law enforcement makes arrests with little to no evidence.

One of those cases includes a 2013 DWI arrest from last year made by APD. According to the dashboard camera video of the arrest, the county attorney's office says it's clear to them the woman undergoing a sobriety test is clearly not intoxicated.

Not only can she walk and talk perfectly, tests later showed she had no alcohol in her blood. The county says it gets cases like this at least once a week from law enforcement.

"Law enforcement's job is to arrest when have they have probable cause. Our standard is much higher," said Escamilla.

Acevedo says those cases are rare.

"There's no doubt in my mind that there are occasions when our folks make an arrest where maybe in hindsight it wasn't under the influence, but I know, because I've seen plenty of cases, that's the exception, the rare exception, not the rule," said Acevedo.