Clear as mud

Over the past week details have begun to emerge about Harris County D.A. Pat Lykos' plan to offer pretrial diversion on first-time DWI offenders:

• The candidate must be a true first offender (or at least someone who understands the importance of expunging those criminal records).
• The DA's office will consider all first DWI offenders - even if there was an accident involved. Of course, the severity of the accident will be considered.
• The DA will screen candidates for eligibility. Should the candidate be approved, an evaluation would be ordered. The exact way in which this evaluation would be conducted has yet to be decided.
• The candidate must agree to a "punishment" as part of the contract. This "punishment" would be applied should the candidate fail to complete the program successfully.
• The program would require the installation of an ignition interlock device (regardless of whether or not there was a breath test) for a minimum of six months.
• The program itself would be for a period of one-to-two years, depending on the facts of the case. No criteria for determining the length of the program has been defined at this point.
• All treatment programs would be paid for by the candidate. According to Ms. Lykos' office, the county will provide treatment for indigent candidates.
• In the event that the candidate "violated" the terms of the agreement, the court will impose a punishment based on the "punishment schedule" that was set up as part of the candidate's entry into the program. Consequences would be "swift" and the candidate would waive his or her right to litigate the issue.
• The candidate would have to agree to a one-year waiting period before he or she could ask the court for an expunction. That expunction would be the same as any other expunction -- all records related to the arrest and prosecution of the candidate would be destroyed. That is, except for DPS driving records. Any "DWI contact" would be forever part of the candidate's driving record.

As I have said before, the idea behind the program is a good one. There is something wrong with a system that allows a court to place a murderer on deferred adjudication but does not afford the same opportunity for a person charged with a first-time DWI. However, the program obviously was not fleshed out prior to Ms. Lykos' announcement and some of the provisions are very troublesome.

Anyone contemplating taking part in the program should still consult an experienced DWI attorney to discuss the benefits and the consequences of the program as they will be asked to waive some of their most basic rights under our Constitution.