Of course the DA's office thinks the program is working great -- that's over 3,000 DWI cases that they didn't have to worry about trying. That's over 3,000 DWI cases in which they have a signed confession from the defendant and a guilty plea before a judge. That's over 3,000 under court supervision because of an allegation that someone was intoxicated while driving. That's over 3,000 cases in which the prosecutor doesn't have to worry about the legality of a stop, of the administration of roadside coordination exercises or the results of a breath or blood test.
We have no way of knowing in how many of those cases there were questions about the stop, the arrest or the testing of the driver. We have no way of knowing how many folks threw up their hands and chose not to fight their case because of a promise their case would be dismissed.
There is one judge at the Criminal (In)justice Center who sees the problem with DIVERT and is unwilling to turn a blind eye.
Critics, including a Houston judge, say the program is illegal because it circumvents 1980s legislation that prohibits deferred adjudication for DWI defendants. Deferred adjudication is a form of probation that allows a defendant to maintain a clean record.
"Of course it's illegal," said criminal court-at-law Judge Bill Harmon. "But nobody cares."
Harmon has presided over criminal proceedings for 22 years as a state district judge and four years in the misdemeanor courts.
"The No. 1 thing that the Code of Criminal Procedure says that you can't get deferred adjudication for is driving while intoxicated," he said. "And court-ordered supervision after a plea of guilty is deferred adjudication."
Judge Harmon is right. If DIVERT were a true pretrial diversion program there would be no guilty plea before the court. A true pretrial diversion plan is an agreement between the District Attorney and a defendant that the defendant will do certain things in exchange for his case being dismissed. If the defendant messes up, the deal is off and the case proceeds as normal - with the possibility that the defendant admitted guilt in his application for pretrial diversion.
In DIVERT, the defendant is taken before the judge and enters a plea of guilty to the charges. The court then resets the case for about a year in advance and the person goes on "probation." Should there be a problem, the person is brought back before the court and given the choice of 30 days in jail or withdrawing the plea and re-entering a plea for probation. That's the problem with entering that guilty plea.
As I've stated before, DIVERT is nothing but deferred adjudication by another name and an attempt by the judges and prosecutors in Harris County to get around the state's ban on deferred adjudication for driving while intoxicated.