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:
- Be an adult first-time offender;
- Be a resident of the State of Texas;
- Be a US citizen or premanent resident alien;
- Have no prior juvenile record;
- Have no prior arrests for any felony or Class A or Class B misdemeanor; and
- Be employed or in school.
A person may be excluded from the program as a result of:
- Judicial veto (that means Judge Bill Harmon of County Criminal Court at Law No. 2);
- A co-occuring disorder that would be detrimental to the person's ability to complete a probation (whatever that means);
- Any pending criminal charge in any jurisdiction;
- A co-occurring mental health condition that the Harris County probation department doesn't offer treatment; or
- 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.