Friday, January 4, 2013


On August 1, 2009, then-Harris County District Attorney Pat Lykos rolled out her new DWI program - DIVERT. The purpose of DIVERT was to convince first-time DWI offenders to accept an intensive probation with drug and alcohol counseling in exchange for dismissing their cases.

Of course there was one big problem - the program was an illegal attempt to get around the state's prohibition against deferred adjudication for drunk driving. In the pre-DIVERT days a defendant had a couple of choices on a drunk driving case: he could plead guilty, pay a fine and apply for an occupational license; or he could choose probation and keep his license. If a defendant stood his ground he knew there was a good chance his case would be dismissed or, if he went to trial and lost, that he'd be put on probation.

Ms. Lykos and her minions didn't like those scenarios so they dreamed up a plan in which a defendant would enter a guilty plea before the judge in exchange for being enrolled in a pre-trial intervention plan. If the defendant didn't like that option he could either choose 30 days in the county jail or a year on regular probation.

Eventually every judge but Bill Harmon in County Criminal Court at Law No. 2 went along with the scheme and suddenly no one was challenging stops and roadside exercises anymore. Fewer cases were dismissed and more folks were under the watchful eye of the county probation department.

But no more.

The incoming District Attorney, Mike Anderson, promised to do away with DIVERT upon taking office. He knew the program was illegal.

This week the DA's Office sent out e-mails to all attorneys who had clients signed up for drug and alcohol evaluations as part of their application for DIVERT announcing that no further screenings would be conducted. If you were already in a DIVERT program the DA's Office would honor its promise under Ms. Lykos but, if you were not already enrolled, forget about it.

I am glad the program is over. Prosecutors are going to have to make some difficult decisions on marginal cases involving first-time offenders once again. We will return to the days when we actually litigated traffic stops in DWI cases.

Of course there are casualties of this change. There are motorists who were charged with driving while intoxicated who were on the waiting list for their drug and alcohol screening so they could enroll in DIVERT. Through no fault of their own their appointments weren't scheduled until after January 1. They were promised they would be enrolled if they met the criteria, but now, because of the change in administration, that promise was yanked from them.

The program screwed defendants from the beginning and continues to screw them after it was tossed in that great ash bin of history. Good riddance, DIVERT.

1 comment:

  1. Do you think that probation, like it was before DIVERT, is a better option than the DIVERT program? I find it conflicting when I read the harsh criticism of the DIVERT program (elsewhere) but then you consider someone who was promised it but wont get it a casualty.

    - a casualty