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

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.

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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.

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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.

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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?

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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?

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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.

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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.

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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.

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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. 

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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? 

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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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