Houston DWI Law Blog : Houston DWI Lawyer & Attorney : Johnson Johnson & Baer Law Firm : Texas DUI Defense & Criminal Law

Pre-trial diversion is now being offered by the Harris County District Office.  What this means is that if you live agree to live by the DA's rules they will dismiss your case.  Sounds great - Right?

As Paul Harvey would say, and now for the rest of the story.  Simultaneous to implementing this new policy, the new policy of the DA's office is to only offer 30 days in jail on a 1st DWI.  Previously in most DWI 1st offender cases, the DA would offer a defendant a deal that would allow them to pay a fine and go about the defendant's business.  Now, however, the DA is essentially coercing some to enter into this pretrial diversion to avoid a 30 day offer by the DA's office. 

Don't get me wrong, for some individuals charged with a Houston DWI, the pretrial diversion program is a great plan.  However, imagine you have a DWI case and you believe you are innocent and your choices are do the program or face a possibility of 30 days in jail.  Does that seem like it is a bit heavy handed?  You bet it does.

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After a meeting with the higher ups at the Harris County District Attorney's office about the new DWI Pre-Trial Diversion program, we are left with more questions than answers.  According to Roger Bridgewater, the "higher up" in the Harris County DA's office, to qualify for the DWI DIVERT / Pre-trial diversion program, a citizen would be required to enter a plea of guilty while deferring  a finding of guilt as long as the citizen abides by the rules of the pre-trial diversion.

A brief history about DWI law.  In 1984, our legislature made a defendant charged with a DWI ineligible to receive a special type of probation called "deferred adjudication probation."  Therefore, It is not permissible to receive deferred probation for a DWI.  Texas Code of Criminal Procedure defines community supervision (probation) as:

"Community supervision" means the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which:

(A) criminal proceedings are deferred without an adjudication of guilt; or

(B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.

The Legislature goes on to define deferred probation in the following manner:

....the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision.

Taking these provisions together, under this new DWI pre-trial diversion program, the defendant enters a plea of guilty to the DWI charge, and is required to complete a "continuum of programs and sanctions, with conditions imposed by the court for a specified period."  It sure does sound like a illegal deferred probation to me (remember, the legislature made a DWI ineligible for a deferred probation on DWI cases in 1984.) 

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I ran into a lawyer friend and colleague, Mark Bennett, at the Harris County courthouse and we were discussing Harris County DWI arrests and conviction rates.  Mark Bennett writes:

94.5%. That’s the fraction of the 713 people in Harris County whose cases were resolved in the first five months of this year after they refused to plead guilty who beat their cases—got them dismissed or got acquitted.

Wow, this is an amazing number that surprised me when I heard it.  The number, unfortunately, is directly related to the DWI lawyer that you hire to represent you in your DWI.  What do I mean that the number is related to the attorney you hire.  Well, there are many lawyers that represent clients on DWI cases that never go to trial on those DWI cases and never require the government to produce witnesses and provide evidence.  If you are looking to challenge your DWI and win your case, you need to hire a lawyer that is going to go the distance with you and have a jury trial if necessary to protect your DWI rights. 

There is an old phrase out there, "Good things happen when you go to trial."  If you stand in front of a Judge and plead guilty to a DWI, you are 100% of the time going to be found Guilty.  According to the statistics, however, if you stand up and say "Not Guilty" you have a great chance of winning your Houston DWI case.

Image: Eleutheromanic

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The most recent Texas Legislature has again given the State more power over its citizens to invade a persons body without a search warrant.  Senate Bill 328 allows the police to take your blood in a Texas DWI case WITHOUT a search warrant in the following situations:

1. When an individual involved in a wreck causes any bodily injury to another person;
2. When an individual is arrested for DWI with a child passenger under 15 years of age;
3. When an individual has 2 or more convictions for DWI; or
4. When an individual has been previously convicted of DWI with a child passenger under 15 years of age, intoxication assault or intoxication manslaughter.

At first glance, this new law seems to make sense.  However, let's look a little closer.  What the statute allows our government to do is force you to give your blood - yes, strap you down and forcibly take your blood without a search warrant.  There will be no independent review of the officers actions before they force this blood draw. 

My concern for our citizens is that a police officers will use this DWI statute to make marginal arrests and force individuals to give blood without a search warrant when they otherwise would not have made an arrest at all. We are giving the police more and more power every day.  Now the interested party - the arresting officer - makes the decision to draw our blood, not a Judge as was previously required.

Anytime we let an officer invade, probe or take fluids from our bodies, there should be a warrant required.  We all have a protected interest in our bodies and the legislature has deprived us of our right to require at a bare minimum a search warrant that is signed by a detached and neutral judge.  Instead, we are allowing an interested party, the police officer making a DWI arrest, to make a decision with no oversight.  Shame on our legislature giving the police the ability to search and seize our blood without a warrant.

The hope is that through DWI lawyers fighting this type of legislation, the legislature will realize the threat to our constitution and change the law or that the judiciary will strike the law down as an unconstitutional invasion on our right to be free from unreasonable searches and seizure.

Image:  Sharon Gott 

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Since the announcement by Pat Lykos about the Harris County District Attorney's office offering pre-trial diversion on DWI cases, there has been a buzz around the courthouse.  Some lawyers seem to like the idea, while other attorneys seem to be very critical of the idea.

As a Houston DWI Lawyer, my concern is for my clients that are not guilty of DWI.  We have had hundreds of DWI cases dismissed over the years.  My concern is that the representatives of the Harris County District Attorney's office will think they are doing each of our clients a huge favor by offering a pre-trial diversion.  But what about the people that would have had their cases dismissed, but for, this new policy?  I'm concerned that the number of Houston DWI cases that are outright dismissed may be reduced significantly.

Why should someone have to jump through all of the pre-trial diversion hoops to get their case dismissed when the case would have been dismissed before this new policy?  These are the people that are going to be hurt by this new DWI pre-trial diversion policy. 

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I was at dinner with my family last night and saw on the MSNBC ticker that New York Representative Peter King openly criticized Michael Jackson after his death, labeling him a "pervert", "child molester" and a "pedophile."  

Today I have had the Michael Jackson Farewell on in the background and heard Houston Representative Sheila Jackson Lee speaking.  Fortunately, there are at least some in the House of Representatives that still fully understand what our Constitution means.  During her remarks, Jackson Lee paraphrased our Constitution saying, "We are innocent until proven otherwise." 

Hey Mr. King, what crime is it that Michael Jackson was found guilty of?  Oh yeah, he never was convicted of any crime.  In fact, he was acquitted in 2005 of the charges of molesting a child.  I guess that is just not good enough for you.  It sure is a good thing that our founding father's gave us the Constitution to protect our rights and that we do not rely upon lawmakers like Mr. King.  Mr. King - great forum and timing on the criticism of Michael Jackson.

Unfortunately, as a Houston DWI Attorney, I see jurors on a regular basis in my DWI cases that have similar views.  Many of these jurors believe that where there is smoke there must be fire and that because an officer arrests a suspect for DWI they must be guilty.  This is simply not true.  Based on my 12 years of lawyering experience, it is my opinion that more people are falsley accused of drunk driving, DWI and DUI than any other crime.

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Before requesting a breath sample or blood sample in a DWI case, an arresting officer is required to provide information about the consequences of the breath test.  Section 724.015 of the Texas Transportation Code requires the officer to inform a DWI suspect that his license can be suspended for 180 days if the person refused a breath test and that that refusal can be used against the person in court.

Lately, however, it seems the police have been asking "You going to give a breath test?"  When the client says "No", the police mark it as a refusal.  The cops seem to be getting lazy and not following the law.  I have heard this story far too many times lately for it not to be true.  This can be a reason to get a DWI case dismissed. 

It is a shame that the police are not required to video tape this admonishment.  In fact, it is a shame that everything the police do is not taped.  Through our investigations, we have found that some cops are just not to be trusted.  As Houston DWI Lawyers, we should not have to investigate the cops to see if they have the capability to video our clients.

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All the talk around the Harris County Courthouse lately has been about Pat Lykos' new plan to allow people arrested for a 1st time DWI to receive Pre-Trial Diversion.

What is Pre-Trial Diversion?  Pre-Trial Diversion is similar to a probation.  You as the Defendant agree to live your life according to some predetermined rules for a particular period of time.  If you don follow those rules, your Houston DWI case will be dismissed.

Sounds like a great program, right?  The problem is, nobody has shared what rules they are going to impose upon Defendants.  What if they say you must complete a 30 day in-patient alcohol detox program as a condition of this pre-trial diversion?   What about spending 10 nights in the comfort of the Harris County Jail?  How about having a to wear an ankle monitor (ankle monitor that supposedly measures your blood alcohol level) everywhere you go?  This looks particularly nice in the summer when you are swimming with friends, family and kiddos.

With this being said, if the conditions are not too onerous, the pre-trial diversion program for Defendants charged with DWI could be a great deal for many of our clients.  Being able to ultimately expunge the DWI arrest is very appealing. 

I guess the bottom line is we need to wait and see what the program will require before jumping on the bandwagon of "what a great deal" the pre-trial diversion will be.

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On the eve of our July 4th Independence Day, the Harris County District Attorney's Office has announced another "no refusal" weekend will be in effect.  Understandably, many citizens hear this news and think that it is a great idea to get drunks off the road. However, let's take a closer look at exactly what a "no refusal" weekend really is.

Mandatory blood draws are exactly that - the police now have the ability to literally strap you down and forcibly take blood from a citizen.  I think this is absolutely the type of intrusion into our lives as citizens that should be prohibited by our Constitution.  In fact, the Fourth Amendment to our Constitution says,

the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

First, a citizen has to be arrested for DWI in order to have a search warrant drawn up to draw the blood from that person.  Let me reiterate, the person is already arrested and in custody for Driving While Intoxicated before the search warrant is obtained.  Obviously, if the person is already in custody and under arrest for DWI, the police have removed that citizen from our streets.  Therefore, no more "drunks" are taken off of the streets as a result of this program.

Additionally, our Constitution is designed to protect all of those accused - both those that are guilty, but also those that are innocent.  We have represented clients that have been accused of drunk driving and had their blood forcibly taken from them that are below the legal limit or have had no alcohol in their system at all.  You can't tell me that strapping an innocent person to a gurney and drawing his blood against his will is not protected by our Constitution. 

Finally, Texas has a specific statute (at least for now) that forbids the Government from this type of intrusion on our lives.  Section 724.013 of the Texas Transportation Code says, "a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer."

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This week in the Melendez-Diaz decision, the United States Supreme Court confirmed and guaranteed our Sixth Amendment Constitutional right to confront witnesses. 

Melendez-Diaz was charged with possession of a cocaine.  At his trial, the government relied upon a sworn affidavit by a lab analyst to prove what the substance was, the amount of the substance and the quality of the substance.  The lab analyst was not called as a live witness and the affidavit was used to convict the defendant.  The Supreme Court overturned the conviction stating, the Defendant was entitled to "be confronted with" the persons giving this testimony at trial.

This decision could have far reaching implications for DWI defendants in Texas.  More and more often, we are seeing the government force DWI defendants to give blood pursuant to a search warrant.  Also, there are many cases where the government relies upon hospital blood draws as evidence in a Texas DWI case.  In Houston, Texas, the Harris County District Attorney's Office often relies upon the hospital records and a business records affidavit to prove the results of the blood alcohol test. 

The Melendez-Diaz decision insures, that in these DWI cases where the government is trying to introduce the results of a blood test, that we will have the right to demand the chemist appear in court and justify the results and be subject to cross examination.

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