Thursday, June 4, 2009

Even as details emerge, more questions remain about Harris County's new DWI policy

More details of Harris County District Attorney Pat Lykos' plan to offer first-time DWI offenders pretrial diversion emerged during an interview with the editorial board of the Houston Chronicle yesterday.

Ms. Lykos and former judge Roger Bridgwater, who will be in charge of the new initiative, provided more insight into how the new plan might work. According to Lisa Falkenberg's column in this morning's Houston Chronicle, Lykos and company had some answers to some big questions left floating after the plan was announced earlier this week.

• How do they expect it to work? To avoid a formal, record-staining conviction, the offender would sign a contract pleading guilty to the offense, waiving rights to a jury trial and appeals, and agreeing to meet certain conditions. Those could include alcohol treatment and a mandatory breath alcohol ignition interlock device in his or her car for at least six months, for which the offender would pay. Completion of the program could take up to two years. Those who reject the deal could see prosecutors argue for harsher sentences, Lykos said.

• Will the DA’s Office use discretion in who can take part? Yes, after considering the evidence and conducting drug and alcohol screens (paid for by the offender), vetting, and background checks to make sure the person is a “true first offender,” meaning no record for any offense. But Lykos noted that discretion won’t be abused: “It’s going to be uniformly applied so it’s not just given to certain favored people who have certain favored lawyers.”

• If the program helps avoid that first-time conviction, what’s to keep someone from becoming a repeat first-offender? Lykos said records on program participants will be public, to be considered for any future offenses in Harris or other counties, and available in the Harris County crime database, as well as ones maintained by the Texas Department of Public Safety and the FBI. Bridgwater noted that the required guilty plea would help ensure that enhanced penalties could be assessed for future offenses. But, he said, if the person is caught driving drunk again, that second offense would be treated as the first.

I'm still bothered by the requirement that a participant in the program be required to sign a judicial confession and waive both their Constitutional right to trial by jury and their right to appeal. One thing that Ms. Lykos seems to imply is that participants will not be allowed to expunge their records after the case has been dismissed, as current law allows. I am also curious to see what would happen to a program participant who failed to complete the probationary period successfully.

As I said when the plan was revealed, I think it's a step in the right direction because it addresses the fact that DWI is the ultimate "wrong time, wrong place" crime and that for most DWI defendants, it's their first and only time caught up in the criminal justice system.


Jed Sorokin-Altmann said...

It sounds similar to the Drug Court model, which also requires waiving constitutional rights to a jury and to appeal. Drug courts can be good for some clients, but not for all.

For these sorts of programs, you need to ensure you aren't setting them up for failure.

Paul B. Kennedy said...

Thank you for your comment. Now I have a couple of questions for you.

How does the Drug Court handle those participants who fail to complete the program?

Are participants who complete the program successfully eligible for an expunction?