Wednesday, June 10, 2009

A pandemic plague sweeping over Harris County

So Harris County is in the midst of a "pandemic plague" according to Harris County District Attorney Pat Lykos. What is this plague you might ask? Is it swine flu? Is it meningitis? Is it encephalitis?

No, according to Ms. Lykos, it's driving while intoxicated.

pan⋅dem⋅ic

[pan-dem-ik]
–adjective
1.(of a disease) prevalent throughout an entire country, continent, or the whole world; epidemic over a large area.
2.general; universal: pandemic fear of atomic war.
–noun
3.a pandemic disease.

plague

[pleyg] noun, verb, plagued,pla⋅guing.
–noun
1.an epidemic disease that causes high mortality; pestilence.
2.an infectious, epidemic disease caused by a bacterium,Yersinia pestis, characterized by fever, chills, and prostration, transmitted to humans from rats by means of the bites of fleas. Compare bubonic plague, pneumonic plague, septicemic plague.
3.any widespread affliction, calamity, or evil, esp. one regarded as a direct punishment by God: a plague of war and desolation.
4.any cause of trouble, annoyance, or vexation: Uninvited guests are a plague.
But this is where the situation beings to become surreal. On the one hand, as Ms. Lykos proclaims that the situation is getting out of control, she advocates, on the other hand, a program offering pretrial diversion for first-time DWI offenders.
Lykos hopes to lower DWI rates by offering first-time offenders a pretrial probation term that avoids a conviction, in hopes of getting more into treatment. In recent years, most of those charged with drunken driving in Harris County have pleaded guilty, served jail time and paid a fine, rather than be placed on supervised probation where alcohol education and treatment assessment is mandatory. Probation for DWI fell from 4,700 cases in 2000 to 2,150 in 2007, according to the district attorney’s office.
It's no secret why probation for DWI offenders has fallen over the last 10 years -- why would anyone voluntarily subject themselves to county supervision for a period of one to two years when they have the option of paying a fine and calling it a day? There are some judges who will probate the mandatory license suspension if a defendant accepts probation in exchange for a guilty plea, but most will suspend your license.

In fact, you can argue, that an attorney might be committing malpractice by advising a client to accept probation instead of time served and a fine. Now I understand that every case is different and time served and a fine is not always available for clients with multiple DWI's or who were involved in accidents.

I would argue that the reason behind 10,000 DWI arrests a year in Harris County is not because there are that many people out on the road breaking the law, but because there is a financial incentive to arrest motorists for DWI.
Houston’s DWI task force receives about $480,000 a year in grants to pay overtime for officers to catch and process drunken drivers, said task force member Don Egdorf, also HPD’s liaison with the district attorney’s vehicular crimes unit. “I don’t know if there are more drunks on the streets, but there are more officers looking for the drunks so there are more of them getting picked up,” he said.
As my colleague, Troy McKinney, points out, in Harris County, if the officer thinks you're drinking and driving - which is not against the law in Texas - you're going to jail. The attitude among law enforcement is to let the courts take care of the carnage.


4 comments:

Cyn said...

Someone, probably with a MADD sponsorship, frequently puts up a "Drink, Drive, Go To Jail" billboard - especially around Thanksgiving through the New Year.

So do you think this new thing will mean less dismissals on crap cases - instead they will push to get the ones they would've dumped to take the diversion? What do you think is the actual reason this type of disposal of DWI cases is being considered? What is the downside to taking the diversion?

(BTW - prosecutors are telling folks to submit the packets even though the details have yet to be worked out. Hearsay from a division chief via a misdemeanor prosecutor who spoke with her this morning.)

Houston DWI Attorney Paul B. Kennedy, said...

Thanks for the comment. I think there are two things going on here. On the one hand Lykos is concerned about the number of "borderline" cases that get set for trial and are later dismissed. On the other hand, she realizes that probation in a DWI case is a much harsher sentence than time served and a fine and she's looking for a way to get more folks under supervision.

Voila! Pretrial diversion! A defendant with a borderline case who's scared to roll the dice and who doesn't want a conviction will gladly sign up for a program that gets his case dismissed -- even though the terms are harsher than a straight probation.

I still say that, for whatever reason Lykos proposed PTD, it's a good option to have available for certain defendants who have more to lose rolling the dice than others.

Joni Mueller said...

About this statement:
"As my colleague, Troy McKinney, points out, in Harris County, if the officer thinks you're drinking and driving - which is not against the law in Texas...."

What am I missing here? Don't we have open container laws so that it IS illegal to have alcohol in the car, whether you're drinking or legally drunk or not?

That actually diverted me from my original question, which is this: Do you know of any studies that have been done to show where Texas is, nationwide, with regard to its harshness on DWI offenders? I hear that some other states have much more relaxed rules about DWI so much so that the general public there is getting somewhat fed up, especially when a death is involved.

Houston DWI Attorney Paul B. Kennedy, said...

Thanks for your comments, Joni.

First, we're not talking about driving around town WHILE drinking. The police seem to think it's a crime to drive a car with the odor of an alcoholic beverage on your breath. The point was it's not against the law to have a drink and then get behind the wheel of your car -- so long as you aren't impaired.

Second, I can tell you that both Harris County and Fort Bend County are serious when it comes to DWI cases. In Galveston and some rural counties, the prosecutor will almost always offer to reduce the charge in order to obtain a conviction. That practice is verboten in Harris County.