While I was sitting in a courtroom at the Harris County Criminal (In)justice Center the other morning I couldn't help but listen in on the proceedings at the bench.
It seems that a woman who was charged with driving while intoxicated chose to enter the DIVERT program. As part of her "probation" she had an ignition interlock device installed in her car. It appeared that there were a few incidents in which the device detected alcohol levels greater than .02 on her breath. Someone (the DA's office, the probation department, pretrial services?) wanted to terminate her participation in DIVERT.
The judge looked at the printouts and asked the woman a few questions before telling her attorney that he would allow her to withdraw her plea, enter a new plea and leave her on probation instead of sentencing her to 30 days in jail. The attorney asked the judge what he was supposed to do.
The attorney pointed out that the pretrial diversion agreement was between the defendant and the DA's office. The judge pointed out that she had entered a plea of guilty in exchange for 30 days in jail as part of her entranced into the program. Per the contract, the 30 days was probated.
The attorney said he didn't think the DIVERT program was even legal.
The judge told the attorney that he had raised concerns about the legality of the program on prior occasions and that he made no attempt to hide his concern about defendants entering pleas of guilty as part of the program.
Keep in mind that these were just allegations that she had consumed alcohol while on probation. There was nobody present to testify that the device was working properly on the days in question. There were no maintenance or calibration records. There was no expert to testify that the interlock device was reliable. There was no one to testify as how the little box even works. How does it clean itself after a blow? What is the scientific basis of the box? How does it calculate an alcohol concentration?
It's a little box with a tube.
But the defendant was boxed in. She had already plead guilty. She was, to put it bluntly, screwed.
I have written many times about my concerns with the DIVERT program - and those concerns have to do with the practice of the defendant entering a guilty plea before the court. As I have stated before, DIVERT is not a pretrial diversion, or intervention, program; DIVERT is deferred adjudication for first-time DWI offenders. The program is not legal and it is questionable whether anyone who participates will be able to expunge the arrest from their records.