Wednesday, June 3, 2009

Pretrial diversion and the importance of an attorney's advice

There has been a flurry of discussion about what the future holds for DWI proseuctions ever since word broke of Harris County District Attorney Pat Lykos' idea of offering pretrial diversions to first-time DWI and drug offenders. Pretrial diversion is a contract entered into between a defendant and the state in which the state promises to dismiss a case if the defendant completes a probation. Unlike deferred adjudication, the case is dismissed without the defendant having to enter a plea, which allows a person who successfully completes the probation to expunge the arrest from their criminal history.

Questions have been raised about requiring defendants to sign judicial confessions and to waive their constitutional right to trial by jury in exchange for the privilege of making a DWI arrest go away sans plea. 

Some are concerned that their source of income (DWI defense) might dry up as a result of the proposal. I don't think that is a likely outcome of Ms. Lykos' proposal. I think, quite the contrary, that there will be even more need for a citizen accused of driving while intoxicated to speak with an attorney before making any decisions.

Anyone accused of driving while intoxicated will need to sit down with an attorney to discuss the full gamut of ways in which their case may be disposed. What is the effect of signing a judicial confession? What are the consequences of waiving the right to trial by jury? What happens if someone violates the terms of their diversionary probation? Will that person be able to expunge the arrest from their criminal history? Who will be eligible to participate in the program? Can the case be fought?

The answers to many of these questions cannot be answered until the District Attorney rolls out the plan in August - but these are issues that must be discussed with those accused of DWI today.

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