New Harris County DWI DIVERT (Pre-Trial Diversion) Program - Is it Legal?
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.)
