Harris County DA's Office Changes Tune on DWI DIVERT Program

The Harris County DWI DIVERT Program has turned into exactly what I expected at the inception of the program.  Despite the promises by Roger Bridgwater when the program was first created, the standard line that we are now hearing from prosecutors is, "If we evaluate the case for trial, the DWI Divert Program is no longer on the table as an option in this case."

A little background might help explain.  Roger Bridgwater, the Assistant Harris County District Attorney who came up with the DWI DIVERT Program, told members of the defense bar last year that the prosecutors in the courts would evaluate each Harris County DWI case on the merits.  He went on to say that the evaluation of the DWI case would not disqualify anyone from participating in the DWI DIVERT Program.

Because we are hearing it more and more often, I have to assume the DA's office has a new policy that they have yet to share with the defense bar and has gone back on its original promise.

Harris County Judge Questions Houston DWI DIVERT Program

Harris County Court Judge Bill Harmon questions the legality of the Harris County DWI DIVERT Program.  Does that sound familiar?  Seems like he is not the only one questioning it.

Judge Harmon tells 11 News of the controversial DWI DIVERT Program, "It's illegal."  He goes on to say of the Program, "All 14 of my colleagues are doing it. And certainly I could have gone along with this illegal program, and if I had, you wouldn't be sitting down here today." 

He is not alone in his thinking.  The legislature has made DWI one of the only crimes in Texas that is not eligible for deferred adjudication probation - that's right, one of the only crimes.  Murder, Aggravated Robbery, Burglary - all eligible for deferred adjudication probation, but not DWI.  The legislature took deferred adjudication away as possible outcome on a DWI back in the early 1980's.  Maybe its time the legislature revisited the idea of allowing deferred adjudication for those charged with DWI.

Houston DWI DIVERT Program - Preferential Treatment for Professional Athletes?

Do professional athletes get preferential treatment in the Harris County DWI DIVERT Program?  Don't get me wrong, I'm very happy for this individual and don't blame him.  I would only hope the preferential treatment would extend to all of the rest of those in the Harris County DWI DIVERT Program.  I would like to see the same courtesy to all, not just the professional athletes.

The Harris County District Attorney's Office officially started the DWI DIVERT Program in August of 2009.  According to the District Attorney's office, the minimum contract period for anyone in the DWI DIVERT Program is one year.  Therefore, it seems that none of the people in the DWI DIVERT Program could possibly have been finished with the program and had his case dismissed, right?  WRONG!!!

Let's take a look at the chronology of a local professional athlete's case. 

  • March 2008 - Professional athlete arrested for DWI in Houston.
  • August 2009 - DWI DIVERT Program started by Harris County District Attorney's office.
  • September 22, 2009 - Professional athlete placed into the DWI DIVERT Program.
  • April 1, 2010 - Professional athlete's DWI case dismissed by District Attorney - Just over 6 months into program.
  • September 20, 2010 - Day the case was originally scheduled to be dismissed.

Because we are less than a year into the program, I suspect this case is the only DWI DIVERT dismissal that has taken place so far.  So I ask you again, is there preferential treatment for this professional athlete by the Harris County District Attorney's Office?

Thinking About the Houston DWI DIVERT Program? Have a Concealed Handgun License?

Is your concealed handgun license important to you?  If so, the Harris County DIVERT Program may not be for you.  You see, if you have a pending charge for DWI, DPS may send you a notice that they are going to try and suspend your License to Carry a Concealed Handgun.

So how does this relate to the DIVERT Program?  While you are a participant in the DIVERT Program, your DWI case is still "PENDING" in the Harris County court system.  Beware, the entire time your DWI case is pending you may not be eligible to carry your concealed handgun license.  If you are concerned, ask your DWI lawyer about the ramifications of the DIVERT Program on your concealed handgun license.

Just one more potential pitfall with the Harris County DIVERT Program that no one told you about.

Smart Start Is Not the Only Game in Town Anymore - Thanks for the Comment Smart Start

I received the following comment from Neil Guerrier (an assistant manager with Smart Start - unbiased, no doubt!) a couple of days ago regarding my post related his company and the DWI Divert Program,

If any other company offered and IID with a camera that worked, perhaps offenders would have a choice, as it stands however....

Also, Dane, you lose any credibility by mentioning that you have a friend that works for a competitor.

The point is with the Divert program is that a device with a camera is required. Any other client is given a choice of what provider they wish to install with.

For years, judges and other court officials been screaming for positive id on the person blowing into the device. Smart Start beat other companies to the punch with their devices.

Also, if i remember correctly, there was an incident in Houston a few years ago where a Judge was part owner or investor in an Interlock company, was ordering clients to install with that company only...

Actually, I'm glad he left the comment because I have needed to write an update to my previous post. 

What Neil failed to point out in his criticism of me is that Smart Start is not the only company that now has a contract with the Harris County DWI DIVERT Program.  In fact, my friend's company (the one that made me biased presumeably) EZ Interlock is now an approved provider of services for the DWI DIVERT Program.  Apparently the cameras are working now.

I would like to think my post had something to do with EZ Interlock getting approved to be a provider for the DIVERT Program - competition is good for all, right Neil?

Thank you Neil for giving me a reason to write this post.

DIVERT Coercion Revisited

In response to Herman Martinez' post and my post about the new rules for the DIVERT Program, Mark Bennett offers another (and I must admit compelling) reason for the changes in the DIVERT Program.

Mark writes,

The DA’s Office is not trying to get more people to reject DIVERT, and is not trying to prevent DWI trials. Rather it’s like a monkey at the controls of a nuclear reactor, pulling levers and pushing buttons without a thought to the consequences.
 

It does seem that this decision to expedite these cases was made in haste without much thought about the practical aspects of the policy. 

My partner had a discussion today with one of the attorneys working in the DIVERT Division and explained how ridiculous this new policy is.  In fairness, there was apparently a meeting about this short reset BS yesterday and the policy is apparently being change.  We will wait and see, but it does seem once again that Mark's conclusion is right on the money.

Less Resets - More Coercion with the DIVERT Program

It seems the new DIVERT Program is again changing without a real reason why.  As of last week, the county court prosecutors learned that the DWI cases that may be DIVERT eligible must now be set up for DIVERT no later than the second setting.  For the record, the first setting is generally scheduled for 1 week after the arrest.  The second setting normally will be approximately 3 weeks later.

The new policy mandates that a person arrested for a Harris County DWI must make a decision about his/her case within a month of the DWI arrest.  Mind you, no person charged with any other offense in Harris County has to make a decision within the first month - only those that may or may not want to participate in the DIVERT Program will be required to make that life altering decision this quickly.

It appears that this is more coercion by the district attorney's office to force people to take the DIVERT Program.  There are cases where we don't have the offense report or video within a month of the arrest.  Without such basic information about the case, how can a person be expected to make a rational decision about his/her case within a month of the arrest?  Wouldn't you expect your DWI lawyer to have all information about your case before having to make that major decision? 

Is it because the Harris County District Attorney's office has lost so many DWI cases recently?  Do they not want us to have the information?  Are they tired of losing so many DWI cases?

My questions to the policy makers:  What is the rush?  Why not let us properly evaluate these cases like the rest of the cases?  What are you scared of?

Smart Start and DWI DIVERT Program - What a Scam

What a scam Smart Start has with the the DWI DIVERT Program.  As it turns out, one of the requirements of the DIVERT Program is that the person who enters into the contract with the Harris County District Attorney's office is required to go through Smart Start to have an ignition interlock device.

So why is it a scam?  Well, many of the Judges in Harris County require as a condition of bond to have an ignition interlock device put in a vehicle as a condition of bond.  There are a few companies that offer this service, including EZ Interlock that is run by a friend of ours, John Burns.  John has been around the courthouse since long before I started practicing law.

If a citizen decides to go through a company other than Smart Start for the ignition interlock as a condition of bond, he/she will be required to switch companies (cost to be paid by client) to Smart Start if they decide to participate in the DIVERT Program.  It seems to me that someone (hint: Smart Start) stands to make a lot of money on this new DIVERT Program.  What is the need for someone that has no problems with the ignition interlock device as a condition of bond to change companies?  why do they need to absorb the additional cost of changing companies?  Seems like a pretty good money maker for Smart Start to me.  Wonder who made this monopolized deal go through and if any money changed hands in that process?

Coercing Defendants to Plea with the DIVERT Program

As predicted, the DIVERT Program is turning into a coercive program

Yesterday, I asked a prosecutor to evaluate a DWI case.  He asked, "for the DIVERT Program?"  I replied, "No, I would like for you to evaluate it for the other 'D' word, a Dismissal."  The prosecutor then told me that he was under orders form the "higher ups" that if they evaluate a case for trial, they will no longer be offering the DIVERT Program.

We, the Houston Criminal Defense Bar, specifically asked the Honorable Roger Bridgewater about the office's position on evaluating cases when the Harris County District Attorney's office initially  spoke about the DIVERT Program.  Judge Bridgewater specifically told us that the cases that need to be dismissed will be dismissed.  How in the hell is the prosecutor going to know if the case needs to be dismissed if they don't evaluate the case?  Am I missing something, or have they changed their policy? 

I hope this prosecutor is wrong.  I hope Judge Bridgewater is standing by what he told us several months ago  that being that his prosecutors are going to first evaluate the merits of the DWI cases before offering the DIVERT Program.

Harris County DWI Acquittals - the reason for DIVERT

According to statistics released from the Harris County Office of Court Management department, the number of Harris County DWI acquittals grew from 3 in 2002 to over 100 acquittals in 2007 and 2008.  These numbers were given to the Harris County Court Judges by the district attorney's office when the district attorney's office was proposing the DIVERT program.

We now have a better idea of why the Harris County DA's office is "offering" the DIVERT program.  The DIVERT program is a creative alternative to the mounting losses the government is sustaining in Houston DWI cases.  Unfortunately, simultaneously, the DA's office changed its offers on DWI cases to only offer jail time.  This seems to create a coercive environment in which a person charged with DWI would accept the DIVERT program. 

The offers are essentially, take our DIVERT deal or we will only offer you jail time.  Sounds pretty coercive to me.

As predicted and expected, Harris County DA's office using DIVERT interview against defendants

Last week I spoke with one of our elected Harris County judges and expressed my concerns about the evaluation interview regarding the DWI DIVERT program.  I explained to this Judge that I was concerned about the interviewer asking my client about the alleged DWI facts and the responses that were given.  My concern then was that the Harris County DA's office would use this information in the prosecution of the case if it went to trial. 

I asked the chief prosecutor in that court (who I trust implicitly) if she would use the information from the DWI interview in the prosecution of my client.  She responded that she would not use the information from the interview against any client in any subsequent prosecution of the case should client decide not to accept the DIVERT program.  For the record, I believe her and have no doubt that she would not use this information against my DWI client.

I then asked if I could get the agreement (not to use the information) in writing.  After consulting with the higher-ups, they were not willing to sign a written agreement.  Therefore, we did not agree to be interviewed for the DIVERT program.

Fast forward to today.  A Houston DWI lawyer informed me today that he had basically the same conversation with the Harris County District Attorney's office.  They assured him that they would not use any information against his client that was obtained in the interview for the DIVERT program.  Even though the DA's office told him his client was a good candidate for the program, after the interview for the DIVERT program the DA's office declined him for the program.  And guess what, the DIVERT interviewer sent over a detailed statement given by that client to the prosecutor in the court.  Essentially they sent a confession over.

Again, the pitfalls of the DIVERT program are exposed.

12 days into DWI DIVERT Program - Still no official forms for DWI lawyers to review

The Harris County District Attorney's office has been talking about the new DWI pretrial diversion program since May of this year.  We have heard the official date of the start of the program is August 1, 2009.  It is now August 12, 2009 and we as Houston DWI lawyers have yet to see any of the official documents related to the new DWI DIVERT program.  I was in court this morning and asked a chief prosecutor for the paperwork that they would require my client to sign to be a part of the DWI program.  The response - "We don't have the final forms yet."

How am I as a Houston DWI attorney suppose to advise my clients to accept or reject this program if we don't even have the forms that would be required to enter into the agreement?  I know, it is a rhetorical question, but the program and the design of the program have been ill-conceived from the outset.

The assistant Harris County DA's are just as frustrated, in fairness, by the lack of information as the defense bar is.  Why?  Because they too are dependent on the higher-ups in the office to learn about the program.  It seems nobody really knows enough about this program - remember, the DWI diversion plan that District Attorney Pat Lykos discussed months ago

The new DWI DIVERT program - ill-conceived, hastily planned and a waste of time so far. 

Here is the Pre-Trial Diversion conversation I predicted was coming

I was in court this morning and the Assistant Harris County District Attorney that I dealt with gave me insight into the new DIVERT program and confirmed to me that there will be fewer dismissals of Houston DWI cases, at least temporarily. 

Here is the gist of the today's conversation about one of my innocent clients that was charged with DWI:

Me:  Have you had a chance to evaluate this case for trial?

Prosecutor:  Sure, your client is eligible for pretrial diversion.

Me:  Sure he is, he has never been in trouble before.  But, have you evaluated this case for trial?

Prosecutor:  He is eligible for the new DIVERT program.

Me:  I understand he meets your qualifications, but have you evaluated the case for trial.  My client is not interested in doing the DIVERT program.

Prosecutor:  Why wouldn't your client do the pretrial diversion program.

Me:  Have you watched the video in this case that shows my client is not intoxicated and does not comport with what the offense report says?

Prosecutor:  The new program will allow your client to get his case dismissed.

Me:  Again have you seen the video?

Prosecutor:  No because your client can do the pretrial diversion program.......

This went on for a few more rounds until it seemed to finally sink in to the prosecutor that my client is not going to participate in the new DIVERT program.  Only then did she agree to watch the video and evaluate the case for trial. 

Is it too much to ask to have them evaluate the case for trial and have them actually do that?  Do the prosecutors really want innocent people pleading guilty to a crime (requirement of the pretrial diversion) that they are not guilty of?  Do they want the police officers to be the person that arrests the citizen, inaccurately reports about that citizen and then ultimately convicts the citizen?  Do the prosecutors want to use the education they received to actually evaluate theses cases? 

I Finished DWI Pretrial Diversion - Can I get my Record Expunged?

One of the carrots the Harris County District Attorney's Office is offering with the new DWI pre-trial diversion program is an expunction after the completion of the program.  Is this just another fraud by the DA's office?  I think so.

Let's take a closer look at the draft proposal the DA's office has shared to date.  The final paragraph of that proposal is a DISCLAIMER that says,

The defendant acknowledges that he may or may not be eligible for an expunction upon the completion of their agreement and the dismissal of this case.

What do you mean "the defendant may or may not be eligible for an expunction?"  Let me get this straight, the Harris County DA's office is offering this program presumably to allow a defendant to clear his record.  However, in the same document, the DA's office is forcing a defendant to acknowledge that the DA is not going to help them get the record expunged. 

The reason for this disclaimer is that the Department of Public Safety may look at this plea arrangement as a form of deferred adjudication probation and oppose the expunction.  The DA's office knows that DPS is going to oppose an expunction and they don't care.  Just another fraud by the Harris County DA's office's pretrial diversion program. 

Is the Harris County District Attorney's Office coercing DWI Defendants? - You Decide

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.

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.) 

DWI Pre-Trial Diversion means fewer dismissals

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. 

DWI Pre-Trial Diversion - A Good Deal?

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.