Monday, September 14, 2009

New DWI program sounds more and more like deferred adjudication

So you still think Harris County's new DIVERT program for first-time DWI defendants is really a pretrial diversion and not deferred adjudication by another name? See this document released internally to Harris County prosecutors.

"After a DIVERT interview has occurred, if it is determined that a defendant is both eligible and an appropriate candidate for the program, an agreement will be tailored to the defendant with customized conditions of the program. If the defendant accepts the terms of the agreement, the defendant will be required to enter a plea of guilty to the offense of Driving While Intoxicated and agree to the punishment to be received in the event of a violation of the conditions of the program. As part of the agreement, the Defendant will waive the right to a jury trial, right to appeal from a finding of guilt and right to appeal from assessment of sentence."

Article 42.12, Sec. 5(a) of the Texas Code of Criminal Procedure states that a judge may accept a plea of guilty or no contest from a defendant and, if the judge feels it is in the best interest of both society and the defendant, the judge may defer a finding of guilt until the defendant has completed his probationary sentence. Sec. 5(c) states that if the defendant has not violated the terms of his probation and if the judge has not proceeded to adjudicate the defendant's guilt, the judge shall dismiss the the case against the defendant. This is the statutory definition of deferred adjudication.

Art. 42.12, Sec. 5(d) states that a judge may not grant deferred adjudication for the offense of driving while intoxicated.

Article 55.01(a)(2)(B) of the Texas Code of Criminal Procedure states that an expunction is not available to a person who was granted deferred adjudication under Article 42.12.

My reading of the DIVERT program procedures and the Code of Criminal Procedure leads me to believe that a person who completes the program will not be eligible for a expunction because that person entered a plea of guilty to DWI. Unfortunately we will not know until the first person files for an expunction at least three (3) years from now.

And if that isn't enough to make you wonder just what the hell is going on, there's this little gem from Page 2:

"If the defendant, after evaluation, chooses not to enter into the DIVERT program, the District Attorney agrees that any information directly or indirectly derived from the interviews or testing of the defendant during the DIVERT evaluation will not be used as evidence against the defendant in any criminal proceeding except for the purposes of impeachment, rebuttal, or cross-examination should the defendant testify or provide the court with information contrary to that provided in the evaluation process; or information learned from a source independent of the evaluation."

So there. DIVERT ain't about designing a treatment program for a person accused of DWI, it's about building a case against that person should they decide not to enter the program. If the purpose really were to treat people, the evaluations would be conducted by a provider not affiliated with Harris County so that thelimited physician-patient privilege afforded under Texas Rule of Evidence 509(b) would apply.

1 comment:

Legal said...

Excellent, excellent points. Thanks for the clarification!