This was announced by Harris County District Attorney Lykos today...

Harris County District Attorney Pat Lykos this morning announced plans for a pre-trial diversion program for first-time DWI and drug offenders beginning in August, an idea she acknowledged with be a hard sell in the community.

Lykos said the pretrial program � which would allow offenders to escape court charges if they successfully complete their supervision � will get more people into treatment programs while reducing the population in the county�s chronically over-crowded jails.

To see the entire article:
Houston Chronicle Article

To see the article in the Houston Chronicle printed above that announcement, click here.

Would this program theoretically allow a defendant to get unlimited DWI arrests and always be a first offender because of our current expunction laws?

I think CCP 55.01(a)(2)(B) applies and the defendant would have to wait until the charge was no longer pending or maybe until the SOL runs (2 years?) but please don't take my word for it.

Thanks for the research. My usual appellate sources are sleeping. :-)

"The average DWI violator commits the offense 80 times a year". Remember that the next time you're dealing with a DWI-1st case.

Glenn Homs was an Irving Police Officer. He was very passionate about his work. He wanted officers to understand how important it is to take DWIs off the street.

The following statement is something that Glenn told officers who complained about how much paperwork was involved in a DWI arrest. "Every time you make a DWI arrest, you are taking a potential killer off the street."

We all realized how much truth there was in that statement when Glenn was killed by a drunk driver on July 3, 1993. http://cityofirving.org/police/memorial-pages/ghoms.html

Actually, according to this session's changes in the expunction statute, it's only a 180-day waiting period from the arrest if no charges are filed. So yeah, a person could be a "first offender" forever under this statute, as long as he's only arrested every seven months or so. That's one reason I hate the "no conviction for first offender" programs that keep springing up. They don't give us a way to make sure it's only for FIRST offenders.

Wouldn't the charge be "pending" for the duration of the pretrial diversion supervision, at least for the purposes of article 55?

Are you saying that a new law allows defendants to seek expunction of arrest records while the charge is still pending?

No, the "pending" requirement is still there. The change is that the current law requires the SOL (2 years) to run, in addition to it no longer being pending and a few other requirements. The new law will allow expunction 6 months after the arrest, provided no charges are filed and the other requirements are still met. So it shortens the time and makes it more likely the defendant can get an expunction before picking up his second (but officially still first) DWI.

I agree with Ms. Lykos' own assessment that the program carries a great deal of potential risk.

There are many reasons why most electeds don't choose this option. First, the mixed signal that it sends to potential DWI offenders. Second, the adverse effect it has on prosecuting repeat DWI offenders. Third, the danger to the driving public if these people fail. And, fourth, the program seems to violate the spirit of the law eliminating deferreds for DWIs.

Having said that, every elected has the right and responsibility to make their own decisions, and I wish Ms. Lykos the best of luck.

Lykos was harshly critical of some other counties that allow DWI offenders to plead to lesser charges and was careful to differentiate her idea, saying, "We're not going to engage in any fraud as they do in other counties by calling a DWI something else."

For the rest of the article and details on the upcoming Harris County DWI referral program, click here.

Defense lawyers said the Harris County District Attorneys office's new DWI diversion program, set to begin Aug. 1, may be unworkable, and possibly illegal, after hearing the details Wednesday.

Details.

This is interesting. Defense is being offered an opportunity to keep a DWI off their record and their response is that it is coercive--because it's a really good deal and the alternative is not so good? Unbelievable. That's like saying when Sonic has a sale on milkshakes, they are coercing me to get one.

We used to have this debate in my misdemeanor office--because plea negotiations are not admissible, if I was the defense, I would say that if the diversion is unsuccessful and the case ends up in court, that the "confession" or plea of true, or whatever you want to call it, was all a part of plea negotiations and is not admissible. I only did them (and our felony offense has the same philosophy) if they would sign a statement that there was enough evidence to find them guilty, just like a deferred, but I never have had to test it to see if would actually be admissible in court.

Maybe the defense attorney's real problem is that it's very difficult to talk a client into paying you $6 grand if you can only get them the same deal everyone else gets. Like Shannon says, it's all about the money.

I'm thinking the defense ought to pipe down and thank their lucky stars that the Harris County Office is busy and are trying to be quick and consistent with these cases. But I guess that would be the best interest of the client, rather than the pocketbook.

As an admitted muggle on this blog (non lawyer/prosecutor) what I find interesting is only one mention of the probable illegality of this program, as it violates the spirit of the no deferred adjudication for DWI laws, and non-inclusion of DWI offenses in the pre-trial diversion provisions. I am biased because of a preconceived notion that prosecutors are not always concerned with the letter of the law except when it benefits them, but I wonder what most of you, including Ms. Lykos thought the lege had in mind re omitting DWI from deferred adjudication, or does it matter?

It's been awhile, so the history has faded. But, the Legislature did, decades ago, perceive that too many people were receiving the benefit of deferred adjudication for DWI crimes. Over and over, drunk drivers would plead and receive no conviction that could be used to enhance their crimes upon repetition.

So, the Legislature prohibited the use of deferred adjudication for DWI's. Since then, the prohibition has been expanded to other intoxication offenses (intoxication manslaughter and intoxication assault).

A few years ago, the Legislature created a new crime: DWI with child in the vehicle (state jail felony). Initially, the Legislature neglected to add that offense to the list of intoxication crimes that could not use deferred adjudication. A couple of years ago, an amendment to the law added DWI with child to the list.

That seems to present a fairly clear message from the Legislature.

Now, whether that message also means that prosecutors should not bypass the prohibition through the use of deferred prosecution is another issue. Some might say that it would be reasonable to avoid such an approach. Others might say prosecutors have the inherent authority to decide when to prosecute.

What do you think?

I think the use of Pre-Trial Diversions can be a perfectly valid exercise of prosecutorial discretion including in DWI cases; tailoring the disposition of the case to the facts of the case and the situation of the defendant. Appropriate situations may include a riding lawnmower case, an "urban driveway" or prescribed medication intoxication. My personal hangup with the Harris County approach is the use of Diversions as a blanket policy.

Don,

That subject has been debated a lot on this forum in other threads. There is statutory justification for initiating a diversion program and it does not exclude intoxication offenses (which have been specifically excluded from deferred adjudication). But your exact sentiments have been discussed--it's an-going debate as JB points out.

Your preconceived notion is sweepingly false. On a daily basis, we provide info to defense attorneys that is exculpatory, refuse to prosecute cases based on searches lacking legal justfication, and generally pay very good attention to the letter of the law.

I may be the only one that rises to your bait. But don't believe everything you see on TNT.

John, that was my thought too (blanket policy doesn't always fit), is that it makes good sense to the person who merely being arrested will be a wake up call and blew a .08, but seems like an easy deal for someone who refused, had an open container or two, has a prior criminal history, and whose blood draw was .24.

JB: do you think maybe the lege is happy with the status quo because the law that they have passed is strict on drunk drivers--which they can take credit for...But the quiet back door way out is on our shoulders (wide open diversion power), so they have given us the exit and whether we use it is our decision (and thus our responsibility to justify)? And I say that not necessarily thinking it's a bad thing, just maybe what some legislators think about it.

I wounder what effect the publicity of the program will have on juries. Will they give an edge to a defendant in a misdemeanor DWI trial? Surely a defendant must innocent to go to trial and turn down the Diversion. Could make for a tough Voir Dire.

I'm always VERY hesitant to do pre-trials on DWI cases. The biggest reason I see is not the expungement issue (it simply doesn't happen much in my county) but rather the difficulty in handcuffing yourself for subsequent enhancements. The simple fact is that many DWI offenders will become repeat DWI offenders. Even if someone completes their pretrial, if they offend again 5 years down the road you're now starting at an entry level punishment rather than a DWI 2nd. And you're one further away from felony adjudication.

For that same reason I have much less of a problem with pretrial diversions for class B POM. Especially in first time cases with no prior arrests I'm hopeful that the shock of realizing that you actually will be busted for pot will have the desired effect. Plus, since there's no statutory enhancement for multiple POMs, I'm not losing anything by trying it out.