Monday, November 23, 2009

DIVERT = deferred adjudication

I overheard a little pow-wow with the prosecutor, defendant and defense counsel on a DWI case in Harris County Criminal Court at Law No. 3 on Friday. The judge asked the defendant for his plea in the case and the defendant responded "guilty."

The (visiting) judge then told the defendant he was being placed into the DIVERT program and that if he completed the terms of his probation the case would be dismissed.

Umm... not so fast.

As pointed out in a previous blog update ("New DWI program sounds more and more like deferred adjudication," September 14, 2009), the Texas Code of Criminal Procedure allows a judge to accept a plea of guilty or no contest but to defer a finding of guilt until such time as the defendant has completed the terms of a probation. Should the defendant complete the terms of the probation, the court will dismiss the charge -- should he fail to complete the terms of the probation, he would be found guilty and could face the maximum range of punishment allowed for that offense.

A person whose case is disposed of through deferred adjudication is not eligible to have that case expunged from his criminal history -- at best he is eligible for an order of nondisclosure which would prevent law enforcement agencies from releasing information on the case to anyone outside law enforcement or a handful of state and federal licensing agencies.

The Code of Criminal Procedure also states that deferred adjudication may not be offered on a DWI case.

I don't know who the defendant was and I don't know if what the judge did in his case will come back to bite him two or three years down the line, but this is further evidence that DIVERT is nothing but an attempt to skirt around the law.

No comments: