Wednesday, July 29, 2009

Harris County rolls out new coercive DWI program

The Harris County District Attorney's Office informed members of the defense bar of the DA's new coercive DWI pretrial diversion policy this afternoon. Mr. Roger Bridgwater, formerly a state district court judge, laid out the details of the new "take it or leave it" policy.

Mr. Bridgwater stated that the impetus of the new policy was the high number of "alcohol-related" fatalities in Harris County and the alleged recidivism rate of defendants who chose jail time and a fine over probation. The DA's office is troubled by the fact that only 22% of those accused of driving while intoxicated are opting for probation when entering a guilty plea. In 2000, 48% of those pleading guilty to a DWI charge opted for jail time and 45% chose probation. By 2008, 65% of defendants were opting for jail time upon pleading guilty. Of course Mr. Bridgwater's analysis did not include looking at the basis for the stop, whether there was a breath or blood test, whether the case was "marginal" or any other facts about the individual cases.

Mr. Bridgwater made the claim that of the 40% of first time DWI offenders in 2004 who were placed on probation, only 11% were charged with a subsequent criminal act while of the 59% who chose jail time and a fine, 16% were later charged with another crime. There are a couple of problems with Mr. Bridgwater's analysis -- first, he did not provide the sampling size (how many drivers were actually arrested for DWI) and second, he did not provide the criteria by which he determined another crime had been committed. Are we talking about folks actually being found guilty of a subsequent offense or are we talking about innocent folks who were simply accused to committing a crime? I would argue that his statistics on this point are wholly without meaning.

Of the 5,616 people who plead guilty or who were convicted of DWI in 2004, 14% were charged with a subsequent criminal offense. Not convicted, mind you, just charged. Mr. Bridgwater seems to have forgotten that those accused of a criminal act are innocent unless proven guilty beyond all reasonable doubt. It's amazing how quickly that's forgotten once someone enters the 6th floor of the Harris County Criminal (In)justice Center.

As to the concern over "alcohol-related fatalities" in Harris County, something called the Houston-Harris County Office of Drug Policy released a report claiming that 30% of traffic fatalities in Harris County are "alcohol-related." These are the same meaningless numbers NHTSA tosses around when discussing the epidemic of drunk driving. No one has defined what "alcohol-related" means. Are we talking about accidents in which the person at fault was found to have been driving while intoxicated? Are we talking about accidents in which the person at fault was accused of driving while intoxicated? Are we talking about accidents in which the person at fault had consumed alcohol but was not impaired? Are we talking about accidents in which any person involved was intoxicated or under the influence of alcohol?

In Harris County, if a police officer detects the odor of an alcoholic beverage on a driver's breath, or if the driver admits to having consumed alcohol, that motorist is going to be arrested and taken to the county jail -- even though it is not against the law to consume an alcoholic beverage and then drive. It is only against the law if you have lost the normal use of your mental or physical faculties as a result of consuming alcohol.

Harris County D.A. Pat Lykos announced the new program in June at a speech at Rice University. Until this afternoon, no details about the program had been released through official channels. Apparently the hold up was coming up with an appropriate acronym for the program (after all, this is the government we're talking about). The new program is the DIVERT program - standing for Direct Intervention using Voluntary Education Restitution and Treatment. There is little about the program that is voluntary.

For those offenders deemed eligible for the program, their choice is to enter the DIVERT program, accept a jail term of 30 days, take an offer of probation (and a conviction) or to go to the judge without a recommendation from the state. For those not deemed eligible for the program, the choice is even starker -- 30 days in jail, probation or pleading guilty without a recommendation. So much for voluntary.

To be eligible, the accused must:
  1. Be an adult first-time offender;
  2. Be a resident of the State of Texas;
  3. Be a US citizen or premanent resident alien;
  4. Have no prior juvenile record;
  5. Have no prior arrests for any felony or Class A or Class B misdemeanor; and
  6. Be employed or in school.
A person may be excluded from the program as a result of:
  1. Judicial veto (that means Judge Bill Harmon of County Criminal Court at Law No. 2);
  2. A co-occuring disorder that would be detrimental to the person's ability to complete a probation (whatever that means);
  3. Any pending criminal charge in any jurisdiction;
  4. A co-occurring mental health condition that the Harris County probation department doesn't offer treatment; or
  5. It being contrary to the best interest of the community.
Mr. Bridgwater envisions a defendant having 75 to 90 days to decide whether or not to apply for the program. Mr. Bridgwater apparently doesn't know how long it takes to get blood test results back. He apparently isn't aware that the number of blood tests is likely to increase as a result of legislation going into effect on September 1, 2009 that further restricts the Constitutional rights of those accused of driving while intoxicated. He apparently isn't aware of the general incompetence of the HPD crime lab.

This new program was rolled out to Harris County criminal judges last week in what would amount to an ex parte communication between the state and the judiciary. No one in the criminal bar was consulted while this program was being conceived and fleshed out. The impression I got from the "meeting" this afternoon was not that the DA's office was concerned about person who makes one mistake and is not eligible for deferred adjudication, but that the DA's office was upset that most DWI defendants are aware that probation is generally a bad deal. The DIVERT program is an attempt to coerce more people into supervision under the guise of pretrial diversion.

Another post will follow with the specifics of the DIVERT program.

10 comments:

Cyn said...

For Mr. Kennedy's readers, I'll point out that Mr. Bridgwater was a district court judge, and before that, a LONG time defense attorney. This program sounds good, until you get to the nitty gritty! So, they are effecting law essentially - they are refusing to consider whether a defendant should get 3 days as allowed by law? I know that judges can't do that. Wonder if this is some kind of violation?

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

Thank you for the comment.

According to Mr. Bridgwater, if a judge feels that a defendant should be sentenced to the minimum jail time, that is up to the judge. Of course we all know what that "informational meeting" with the judges was all about, though.

One of my biggest problems with the program is that pretrial diversion should be a contract between the DA and the accused, not between the accused and the court. It seems to me that what Lykos is trying to do is to offer deferred adjudication to DWI offenders but call it pretrial diversion.

I'm troubled by requiring the accused to sign a confession that will then be presented to the court if he violates the PTD agreement at a subsequent motion to revoke. At that hearing the judge could find the accused guilty and would not be restricted as to the sentence. How does that differ from deferred adjudication?

mjk11 said...

Texas law specifically disallows deferred adjudication in DWI cases. This appears to be a way around that law for 1st time DWI offenders in Harris County. In the appropriate case it may be in the clients best interest to agree to the pretrial diversion contract. In marginal cases it may coerce pleas from defendants who don't have resources to fight their cases.

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

Thanks for your comment.

I think you've pretty much nailed it. The way the program is set up, it's deferred adjudication by another name. It's also a way to coerce folks with marginal cases to waive their right to trial.

I will be posting about some BIG problems with the proposed contract Bridgwater handed out at the meeting. I think there are some major problems with the program.

Anonymous said...

Isn't part of the disappointment of the defense bar that a significant portion of your income is going to go bye-bye under this plan? No attack intended, but lawyers such as yourself who specialize in dwi are going to be affected. Say the defendant was actually intoxicated, looks intoxicated on video and has a test indicating intoxication.

He can either pay a defense attorney thousands and thousands of dollars, and still risk a substantial chance of being found guilty and having a conviction and have to pay the surcharge and still having to do the same
probation these ptd folks would do.

For most folks who realize the deck is stacked, it makes financial sense to take the ptd and move on down the road, saving thousands in legal fees.

By the way, one question: Will the courts be allowing defendants to be placed on ptd pro-se?

Anonymous said...

Nearly every County that uses PTD (whether for dwi or other offenses) makes the offender sign a stipulation of guilt and to the facts and it is part of the deal that the admission can be used if the PTD terms are violated.

Check Fort Bend's PTD agreement. Although not used for PTD out there, it is used for misd and felony offenses alike, and requires a defendant to admit guilt.

Anonymous said...

"Mr. Bridgwater envisions a defendant having 75 to 90 days to decide whether or not to apply for the program. Mr. Bridgwater apparently doesn't know how long it takes to get blood test results back. He apparently isn't aware that the number of blood tests is likely to increase as a result of legislation going into effect on September 1, 2009 that further restricts the Constitutional rights of those accused of driving while intoxicated. He apparently isn't aware of the general incompetence of the HPD crime lab."

Mr. K, I suspect that RB has forgotten more law than you know. #2, HPD has hired more scientists to do blood work for dwi cases. #3, I think the only hickey legally with this plan is the 30 day punishment for violating the agreement. That needs to go away.

But changing their plea offers to 30 days or the diversion agreement is well within the purview of the DA.

Now, how do you respond to the critics who say defense attorneys are mainly upset because their pocketbooks will suffer?

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

Thank you for your comments.

The Harris County plan will not be available to defendants acting pro se.

I would envision the "no doubt" cases being shepherded through the DIVERT program but I think the marginal cases are still going to go through the trial process.

As far as the economics of it, the police will always be arresting people and DA's will continue to prosecute them.

Joel Rosenberg said...

The War on DUI is, sure, largely a commercial affair, just like the War on Some Drugs. It keeps prosecutors and judges and cops busy, and paid.

I guess, once some of the prosecutors and judges and cops start to argue for a saner view of both, I'll think about joining in on the chorus of complaining about the CDLs who "cash in" by providing necessary (IMHO, and all that) to the guest of honor and unwilling financeers of the shows and, putatively, would the only thing standing in the way of the present system and sanity -- after all, we know how very, very powerful and influential the criminal defense bar is -- but we're very much not there now, and anybody who hasn't been drinking too much to write wouldn't think that we are.

Joel Rosenberg said...

That should, of course, be "necessary services." Sometimes I words out.