Diverting from the law

According to the Houston Chronicle, the Harris County DA's DIVERT program is the greatest thing since sliced bread when it comes to dealing with DWI. The article points out that more than 3,000 people have signed up for the program and that 1,431 people have completed it. There have also been 413 people who have been unsuccessful.

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.

Word games

There is one other little problem with HB 189 that I neglected to address in my last post on the topic. In Texas, two prior DWI convictions can be used to enhance a DWI from a misdemeanor to a felony. Under HB 189, a deferred on a DWI case would be considered a conviction for enhancement purposes.

That would be fine if we were only talking about enhancing the punishment, but we're talking about enhancing the offence from a misdemeanor to a felony -- and that's a much bigger deal. Take a conviction on a first DWI and you're looking at a maximum of 180 days in the county jail. Take a second conviction and the stakes are upped to one year. But, go down a third time and you could be looking at up to 10 years in the state penitentiary (with little chance of making parole).

It's almost as if the bill proposes that we convict a motorist of driving while intoxicated but call it something other than a conviction. Just remember that a conviction by any other name is just as bad.

What I would change about HB 189

Today Grits for Breakfast asked what changes I would like to see in HB 189. Here goes.

I support the idea of making deferred adjudication an option for motorists charged with driving while intoxicated. While I don't think deferred is the greatest thing since sliced bread, in some cases it may be the best way to resolve a case.

My main problem with HB 189 is that a person who successfully completes his deferred probation is not eligible for an order of nondisclosure - leaving his arrest for DWI out there for all to see. The other offenses that are not eligible for nondisclosure are crimes of violence; for the most part those charged with drunk driving did nothing worse than commit a minor traffic offense such as speeding.

It's not like a nondisclosure order will prevent the police or the courts from discovering a prior DWI arrest -- law enforcement agencies have access to records under a nondisclosure order. Maybe the arresting officer won't know about the prior DWI arrest at the time of the traffic stop, but that information will be available to prosecutors.

The carrots in a deferred are the dismissal and nondisclosure. Since we're talking about a crime that's just one step removed from a traffic ticket, I think nondisclosure should be available.

I would also like to see the bill address the issue of how motorists who hold commercial driver's licenses will be affected. If we are allowing the deferred to count as a conviction for enhancement purposes, what effect will they have on a CDL? Will the DPS take advantage of that provision and impose surcharges for drivers who take deferred adjudication in a DWI case?

I would like to see language to the effect that there will be no civil penalties imposed by the DPS for any motorist who takes deferred probation in a DWI case. That means no surcharge, no license suspension and no disqualification from driving a commercial vehicle. If you want to disqualify CDL holders if they were arrested for DWI while driving a commercial vehicle, that's fine.

I also think the requirement that a motorist on deferred probation install an ignition interlock may be overkill. However, since judges routinely require an interlock as a condition of granting an occupational license, I can live with that. I do think, though, that it should be up to the judge whether the device should be required. One size fits all solutions from Austin rarely work as planned.

In short, while I am opposed to HB 189 as written, I do think it's a step in the right direction.

A closer look at HB 189

Proponents of HB 189, which would allow for deferred adjudication in DWI cases, are not supporting the bill our of the goodness of their hearts. They aren't supporting the bill because they believe that motorists accused of drunk driving deserve a second chance. They aren't supporting it because they came to the realization that the penalties imposed for DWI in Texas are out of proportion to the seriousness of the offense.

Currently a motorist accused of driving while intoxicated has two choices -- plead the case or take it to trial. In some counties the threat of trying the case is enough to receive an offer of a plea to a "reduced" charge of reckless driving or obstruction of a highway. In Harris County, if you have a clear record and no mental health issues you can enter the DIVERT program - if you can stomach the requirements and believe the promised result.

Due to the sheer volume of DWI cases around the state, prosecutors are doing what they can to reduce trial dockets and this means, in many counties, doing whatever it takes to get that DWI case off the books.

Casting aside, for the moment, the fact that DWI is an opinion crime and that the vast majority of motorists charged with drunk driving did nothing more than commit a minor traffic offense, imposing ridiculously high surcharges and license suspensions all because a motorist failed to signal a lane change and had alcohol on his breath is beyond absurd. Motorists should be given another option to resolve their cases.

The fact is the majority of drunk driving cases are very triable. Generally the worst possible outcome for a first-time offender is a lengthy probation and an ignition interlock device. Absent some very bad facts or intervening circumstances, there's no reason to plead out a case.

While I support the concept of deferred adjudication for motorists accused of DWI, I have qualms with the particulars of HB 189.

As I pointed out yesterday, the proposed legislation would forbid a person from obtaining an order of nondisclosure on a DWI deferred. Quite frankly, that makes the proposal a non-starter from the beginning. The carrot in a deferred is that you can obtain an order of nondisclosure that prevents anyone outside law enforcement and the agencies and entities listed in the statute from seeing information related to the arrest.

The problem is employers, landlords and others treat deferreds the same as convictions. If a person has completed their probation and done everything required of him by the court, he should be able to obtain an order of nondisclosure. Potential employers and landlords don't need to know he was arrested for driving while intoxicated.

HB 189 would also require that an ignition interlock device be placed on the car of anyone on a deferred probation for driving while intoxicated. While I think that is an extreme measure, it is well within the purview of the court to order an ignition interlock device as a condition of probation. This type of a one-size-fits-all plan, however, doesn't always work and isn't always appropriate. Let's be real, people plead to cases for a variety of reasons - and not always because they are guilty.

I don't have a problem with the provision stating that, for enhancement purposes, a deferred on a DWI will be considered a conviction. After all, when a person enters a plea in exchange for a deferred, the judge will state that based on the evidence before the court he finds that there is sufficient evidence to enter a finding of guilt but that he will defer that finding pending the completion of the probation. One concern would be whether a DWI deferred could be used as a conviction to enhance any other misdemeanor.

Another area of concern, raised by a colleague of mine, is what happens to a motorist who holds a commercial driver's license? Will CDL holders be eligible for a deferred on a DWI? Will it matter whether or not they were driving a commercial vehicle or a private car? Will the DPS consider that deferred to be a conviction for the purpose of suspending the motorist's license?

The proposed legislation is not perfect and I would not support it in its current form. I do believe, however, that a sea change may be taking place and that at some point in the near future a more amenable bill may be submitted.

See also:

"MADD endorses deferred adjudication for first-offense DWI" Grits for Breakfast (12/28/10)
"Another bad DWI idea in Austin" Defending People (12/27/10)
"Deferred for DWI?" Dallas Criminal Defense Lawyer Blog (12/27/10)
"The DWI deferred conviction - House Bill 189" Dallas Criminal Defense Lawyer Blog (12/27/10)

Bill introduced that would end ban on deferred adjudication for DWI's

A bill has been introduced in the Texas Legislature to allow courts to place motorists accused of driving while intoxicated on deferred adjudication probation - a practice currently barred by statute.

The proposed legislation, HB 189, was authored by State Representative Todd Smith (R-Euless), would make the use of an interlock device mandatory for anyone placed on deferred adjudication for DWI. The bill would also add intoxication offenses to the list of crimes for which nondisclosure is not permitted.

Under the proposed legislation, a deferred adjudication for drunk driving would be counted as a conviction for enhancement purposes.

The bill has the support of MADD, who wants an end to the "masking" of DWI's by "reducing charges" to reckless driving, obstruction of a highway or public intoxication.

"Generally, we do not support deferred adjudication bills, but we are going to support this one. Right now, we are hearing that many cases are not getting prosecuted for DWI but for a bogus charge. We hope the practice of reducing charges will be reduced if this bill does indeed pass." -- Bill Lewis, MADD public policy liaison

According to the article in this morning's Houston Chronicle, when a house committee held a hearing on what to do about DWI's last August, there were over 122,000 cases pending throughout the state. Permitting courts to offer deferred adjudication on drunk driving cases should ease the pressure on prosecutors and courts throughout the state as it would give prosecutors and defense attorneys another tool with which to resolve cases.

It would also ease the financial burden on motorists since there would be no conviction for DWI, there would be no surcharge imposed.

My quibble with Rep. Smith's proposal is barring nondisclosure in DWI cases since law enforcement and state licensing agencies have access to the arrest records of defendants whose cases were disposed of through deferred adjudication.

While I think it unlikely at this juncture that the legislature would pass HB 189, the odd pairing of prosecutors, defense attorneys and MADD may very well be enough to get the proposed legislation before the fair-haired one.

Sometimes the cure can be worse than the ailment

The powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy; to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. -- Texas Constitution, Art. II

Texas State Senator John Whitmire recognizes that there is something wrong with the manner in which Texas handles motorists accused of drunk driving. He understands that the surcharges imposed by the Department of Public Safety are onerous. He gets that motorists don't want a DWI conviction on their records because of the surcharges or because it may cost them their job.

What he doesn't get, apparently, is the separation of powers clause in the Texas Constitution. Sen. Whitmire is upset because different counties handle DWI cases differently. In Galveston County, it's not unusual for a motorist accused of drunk driving to plead guilty to obstruction of a highway. In Harris County, a person accused of DWI who has never been in trouble with the law before can enter the DIVERT program and (cross your fingers) have the matter expunged after completing their probation (more on this later). Get pulled over in Fort Bend County and if the case is not dismissed, plead guilty or go to trial.

Sen. Whitmire wants to put together a "working group" to figure out how to ensure that DWI's are handled the same across the state. No word on whether that working group will include defense attorneys or not.

My question, however, is who cares if Tom Green County treats first-time DWI's one way, Cameron County treats them another way and Jefferson County treats them a different way. No one questions why for so long capital crimes were handled one way in Harris County and, seemingly, another way across the rest of the Lone Star State. No one seems concerned that every county has a different policy toward pretrial diversion on nonviolent offenses such as shoplifting or possession of minor amounts of marijuana.

In Bexar County, District Attorney Susan Reed dealt with a backlog of cases by allowing first-time drunken-driving defendants who meet certain parameters to plead instead to a charge of "obstruction of a highway – intoxication." Defendants must undergo treatment and abide by conditions, including locks on their vehicles.

Reed said her goal was to get to offenders quickly and impose strict requirements because she believes that is the way to keep people from repeat drunken driving: "It's really got teeth in it for trying to stop the behavior." Besides avoiding the surcharge, she said, the absence of a formal DWI charge keeps people from possibly losing their jobs over the matter.

Whitmire voiced concern that allowing such a charge would hide a defendant's first drunken-driving offense, allowing him to avoid enhanced penalties if he offends again.

"We're losing a record of what that person's actual offense is," he said. -- Houston Chronicle (7/8/2010)

Allowing defendants to plead to a different charge? Really? C'mon, Senator, you are well aware that it happens every day in courthouses across this state and across the country. That's why it's called a plea bargain. Why the concern when it happens in a DWI case? The records will still indicate that the person was arrested and charged with driving while intoxicated regardless of what the person actually pleads to.

Here's an idea for you, Senator. Why not allow deferred adjudication for those accused of DWI? Even with a nondisclosure order, law enforcement (and prosecutors) will know about the prior arrest and can treat any subsequent offense accordingly. Allowing those accused of driving while intoxicated to clear their case without a conviction, without a license suspension and without the onerous DPS surcharges can move dockets -- if judicial economy is what we're really concerned about.

Law and order: Rockport

I was down in scenic Rockport yesterday handling an appeal of a case involving the holder of a CDL. Due to the infinite wisdom of our state legislators, if you hold a CDL in Texas, you cannot get that ticket dismissed in JP or municipal court through defensive driving or deferred disposition. However, should you appeal your plea or conviction to the county court, you can get the case dismissed through one of those avenues.

What's even more absurd it that in a county like Aransas County (Rockport is the county seat), the county attorney's office handles all misdemeanors -- including traffic cases. So I dealt the the county attorney on my client's ticket while it was filed in the JP court and, as we were unable to come to a mutual agreement, we pled no contest, posted an appeal bond and appealed the conviction to the county court. And who would I be negotiating with in County Court? None other than the county attorney.

To his credit, the Aransas County Attorney, Mr. Richard Bianchi, realizes this little "dog and pony" show the legislature has created is an incredible waste of time and money for the courts, defendants and attorneys. He is trying to find a way to steer CDL cases to the county court in the first place to avoid this absurdity. One way might be to offer pretrial diversions at the JP level, thus eliminating the need to appeal a plea.

We reached an agreement for my client to receive pretrial diversion and a dismissal. Then things got weird. We approached the judge and he informed my client that by entering into the agreement he was pleading guilty to the underlying charge but that the case would be dismissed if he complied with the terms of the diversion agreement.

Hmmm. Entering a plea with the judge deferring a finding of guilt until the terms of the agreement were satisfied. That's not pretrial diversion, that's a deferred. Of course since it's a Class C misdemeanor it doesn't matter -- but on a more serious offense it raises the question of whether the person is eligible for an expunction per the Texas Code of Criminal Procedure.

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.

New DWI program sounds more and more like deferred adjudication

So you still think Harris County's new DIVERT program for first-time DWI defendants is really a pretrial diversion and not deferred adjudication by another name? See this document released internally to Harris County prosecutors.

"After a DIVERT interview has occurred, if it is determined that a defendant is both eligible and an appropriate candidate for the program, an agreement will be tailored to the defendant with customized conditions of the program. If the defendant accepts the terms of the agreement, the defendant will be required to enter a plea of guilty to the offense of Driving While Intoxicated and agree to the punishment to be received in the event of a violation of the conditions of the program. As part of the agreement, the Defendant will waive the right to a jury trial, right to appeal from a finding of guilt and right to appeal from assessment of sentence."

Article 42.12, Sec. 5(a) of the Texas Code of Criminal Procedure states that a judge may accept a plea of guilty or no contest from a defendant and, if the judge feels it is in the best interest of both society and the defendant, the judge may defer a finding of guilt until the defendant has completed his probationary sentence. Sec. 5(c) states that if the defendant has not violated the terms of his probation and if the judge has not proceeded to adjudicate the defendant's guilt, the judge shall dismiss the the case against the defendant. This is the statutory definition of deferred adjudication.

Art. 42.12, Sec. 5(d) states that a judge may not grant deferred adjudication for the offense of driving while intoxicated.

Article 55.01(a)(2)(B) of the Texas Code of Criminal Procedure states that an expunction is not available to a person who was granted deferred adjudication under Article 42.12.

My reading of the DIVERT program procedures and the Code of Criminal Procedure leads me to believe that a person who completes the program will not be eligible for a expunction because that person entered a plea of guilty to DWI. Unfortunately we will not know until the first person files for an expunction at least three (3) years from now.

And if that isn't enough to make you wonder just what the hell is going on, there's this little gem from Page 2:

"If the defendant, after evaluation, chooses not to enter into the DIVERT program, the District Attorney agrees that any information directly or indirectly derived from the interviews or testing of the defendant during the DIVERT evaluation will not be used as evidence against the defendant in any criminal proceeding except for the purposes of impeachment, rebuttal, or cross-examination should the defendant testify or provide the court with information contrary to that provided in the evaluation process; or information learned from a source independent of the evaluation."

So there. DIVERT ain't about designing a treatment program for a person accused of DWI, it's about building a case against that person should they decide not to enter the program. If the purpose really were to treat people, the evaluations would be conducted by a provider not affiliated with Harris County so that thelimited physician-patient privilege afforded under Texas Rule of Evidence 509(b) would apply.

A sensible DWI policy in Harris County

Today Harris County District Attorney Pat Lykos announced a new DWI strategy by which first-time DWI defendants will be eligible for pretrial diversion.

Under pretrial diversion, a person must complete a probation with conditions attached such as being required to install an interlock ignition device on their car, attending drug and alcohol counseling and undergoing random drug tests. Should they complete the probation successfully, the case will be dismissed without a plea being entered. The person would then be eligible to expunge all records of the case from his criminal history once the statute of limitations passed.

This differs from deferred adjudication in that a person who completes a deferred adjudication probation would have already entered a plea and is, therefore, only eligible to seek a petition for nondisclosure of records regarding that case to anyone outside of law enforcement.

Pretrial diversion also differs from deferred adjudication in that if a person is on pretrial diversion and runs afoul of the rules, he is back where he started with no penalty. If, on the other hand, a person on deferred adjudication messes up, he can be hauled back before the judge and sentenced to the full range of punishment -- regardless of what the original agreement was.

“So, we’re going to have a carrot-stick approach. It’ll be pretrial disposition if you will, or deferred prosecution — they’re put under supervision, the DWIs will have the inter-locks, they will not lose their licenses, they will go to work, they will undergo the drug treatment, the urinalysis and everything else. And if they’re successful, the charges are not filed." -- Pat Lykos, Harris County District Attorney

Ms. Lykos' plan will reduce the number of people confined in the Harris County Jail and will enable those who wish to take advantage of the program the chance to help themselves.

Proposed legislation would protect teachers' criminal history information

A bill before the Texas House of Representatives would prevent a public school employee's criminal record from being made public.  Senate Bill 9, enacted in 2007, required school districts to release the criminal histories of their employees if that information were combined in a document with non-confidential information.

State Rep. Jessica Farrar (D.-Austin) introduced H.B. 4302 in response to allegations that false information was being released about public school employees.

According to the bill analysis:

These criminal history background checks often yield results that are inaccurate or incomplete. The records may include investigations or arrests based on false or erroneous information and even charges that were dismissed for lack of merit. Some records reflect activities from decades ago that are entirely irrelevant to an employee's fitness for the employee's current work. 

If the bill passes, school districts would not be required to release any confidential criminal history information on district employees to any entity to whom the Texas Department of Public Safety or Federal Bureau of Investigation was not required to release the information.

Alejandra Martin (Association of School Personnel Administrators), Ted Melina (Texas AFT) and Martha Owen (Texas AFT) testified in favor of the bill. No witnesses testified against the proposal.

Several newspapers and broadcasters have come out against Rep. Farrar's proposed legislation on the grounds that the public has a right to know. Now, while I generally fall into that camp, in this instance there are some good reasons for this information to be restricted. 

A citizen accused of a crime can receive deferred adjudication probation which would result in a dismissal of the charge upon completion of the probation. In addition, the citizen accused could then seek an order of nondisclosure which would prevent law enforcement agencies from releasing any information about the arrest, charge or disposition to anyone outside law enforcement - with a few exceptions.

One of those exceptions is that the criminal background information is made available to the Texas State Board of Educator Certification and to local school districts. There is a sound public policy argument in favor of that exception. However, without the protections of H.B. 4302, that same information could be released to anyone else upon request -- which would defeat the entire purpose of deferred adjudication.

Out of whack

You can get deferred adjudication for murder, rape and burglary in the State of Texas -- but not for the heinous offense of driving while intoxicated.

Deferred adjudication, sometimes referred to (tongue-in-cheek) as deferred prosecution, is a carrot-and-stick sentence in which a citizen is placed on probation for a period of time and, should he complete the terms of that probation, the case is subsequently dismissed. The citizen then has the right to an order of nondisclosure of all records related to the case and can deny, under oath, that he was ever charged with the offense. It must be pointed out, however, that some offenses are not eligible for non-disclosure.

Deferred can offer a first-time offender a "do-over" should he or she get back on track -- though the penalties for screwing up can be quite severe.

But if you're unfortunate enough to be arrested for DWI -- a misdemeanor -- that option is unavailable and, unless the case is dismissed or you are found not guilty at trial, you will forever be labeled as a CRIMINAL by the State of Texas.