Thursday, July 30, 2009

New Harris DWI 'diversion' plan causes more problems than it solves

Harris County DA Pat Lykos yesterday rolled out a highly punitive and possibly illegal "diversion" program for first-time DWI cases, leaving the Houston-area legal blogosphere abuzz. See the actual plan (pdf) and initial analysis from criminal defense attorneys Mark Bennett, Paul Kennedy and Murray Newman; here's the Houston Chronicle's coverage.

Bottom line, all first time DWI defendants will be offered two options: 30 days in jail or two-years on probation in a newly created (and poorly named) "diversion" program, after which charges will be dismissed. The legal bloggers out of Houston are covering this well, but let me just make a few observations:

We were earlier told part of the purpose for this plan was to reduce jail overcrowding, but this proposal will significantly increase it at a time when the Harris Jail is overflowing and the Sheriff can't adequately staff the jail for the population they've got. How about a little acknowledgment of reality in these decisions?

This is deferred adjudication by another name and it's not allowed in Texas for DWI. I predict the appellate courts will end up overturning the arrangement the first time they try to violate somebody (who can afford a good lawyer) under one of these agreements.

Relatedly, is this a model that's been tried elsewhere or is the DA's office just pulling this out of its collective bureaucratic behind?

Thirty days in jail means somebody probably loses their job, if they have one. That's bad for the economy and public safety. Why not use intermediate sanctions for probation violations instead of needlessly filling up the jail with nonviolent offenders?

The stated conditions of probation are too onerous to induce plea bargainers to choose that option. They include a 10 p.m. weekend curfew, no alcohol at all (not just no driving), no going into places that serve alcohol, paying for an ignition interlock, counseling and regular urinalysis, needing prior permission to travel beyond contiguous counties, and allowing their P.O. and police officers into their home whenever they want, among quite a few others. For myself, faced with that choice, I'd just take the 30 days.

Lykos wants to require ignition interlocks from everyone (paid for by the defendant) but those are expensive and not really cost effective for first-time offenders. Murray Newman rightly asks, "Have you thought about the effect of indigency on your Pre-Trial Diversion customers? What if somebody can't afford the Interlock Device, or they don't have a car at all? Do they get their Diversion yanked?" I'm a strong supporter of requiring ignition interlocks for repeat offenders, but on the first offense it doesn't pass the cost-benefit test.

Finally, it's going to be a concern for some that, according to the Chronicle, "If they successfully complete the probation, [offenders'] records will not show a conviction for driving while intoxicated." But will the MADD folks be satisfied if somebody gets a second DWI three years hence but the sentence can't be enhanced because they were never "convicted"? Most first-time DWI offenders never commit a second offense, but if they ever do at least the first conviction is still on the books. Not under Lykos' new policy, though.

This seems like poorly conceived proposal that needs some more time back at the drawing board, but the DA plans to roll out its new plea policy on August 1.

MORE: See a discussion of the Harris DWI diversion plan on the user forum at the District and County Attorneys Association.

20 comments:

Charlie O said...

I don't live in Harris County, so the point is probably moot, but I'm with you Grits, I'd take the 30 days rather than live for two years under those stipulations. C'mon, a 10 p.m. curfew on weekends? What is this, high school? And permission to travel? For a first time DWI offense? Ridiculous.

Don Dickson said...

I'm not opposed to a plan of that kind, but the particulars of that plan sound nutty to me.

I've had a LOT of clients who would've chosen the thirty days in lieu of all that other silly crap. Even if it MEANT losing their job, which most of them no doubt would.

Now, if it was five days instead of thirty...and if the gummint would provide the IID at its own expense, and if they deleted the silly curfew and some of the other high-school crap, you might have a plan that would do some real good. A first offense would come with real consequences, but you'd also get a reasonable opportunity to learn and grow from the experience and conform your future conduct to the law, and have some reward for doing so other than just doing it for its own sake, which is sometimes a tough sell.

Don Dickson said...

Incidentally, it has been my experience with many DWI clients that five days in jail -- a place they never in their lives ever imagined finding themselves -- is enough to put the kibosh on drinking and driving.

Don said...

My problem is that which Grits pointed out in the first sentence:

This is ILLEGAL. There is no deferred adjudication for DWI, and the pre-trial diversion program doesn't include DWI.

Don Dickson said...

Well I do agree that this "diversion program" looks like a duck and quacks like a duck....it is deferred adjudication in a very thin disguise. I don't really have a problem with that....I always thought it was nuts that under Texas law you can get deferred adjudication on a murder charge but not in a DWI case.

Hunter Biederman said...

Looks like the Feds may disagree with first time offenders and trying to get ignition interlocks as a requirement for DWI 1st.

http://www.friscodwilawyer.com/2009/07/articles/dwi-legislation/federal-ignition-interlock-requirement-on-all-dwis/

But either way, I have and will be a big proponent of allowing deferred for a DWI 1st. But the requirements for this are pretty crazy. Cant wait to see the MADDness response....

Don Dickson said...

Hunter, I wonder if you and your prosecutors play the same game I've sometimes played with prosecutors here in the Austin area....on a 1st DWI I'll offer to plead UP to something like a deadly conduct charge just so they can give my client deferred adjudication.

Anonymous said...

It's all bogus in Harris County.
A Deferred Adjudication is NEVER completely removed from your record in Harris County, it's always there.

This is just another smoke n' mirrors maneuver to get a defendant to sign up for something other than a trial.

Anonymous said...

Coercion or persuasion?

Take the 30 days, especially if you have not been able to bond out after 30 days of your arrest. You are time served baby!

Anonymous said...

Actually with the good conduct credit, you would only do 20 days. Take the 30 days.

Anonymous said...

Sounds like another example of ineffective and poorly thought out symbolic "get tough" policy designed more for political gain than meaningful justice.

Don said...

I think the problem with deferred for DWI stems from the enhancement aspect. Theoretically, you could have a guy with 2 or 3 DWI's but have to go for a 1st offense. That's why they wanted DWI not included. But my problem is the deliberate skirting of the law by just calling it something else. Either friggin' have it or don't. What exactly is the course that teaches doublespeak in law school, anyway?

Boyness said...

Don Dickson said...

I'm not opposed to a plan of that kind, but the particulars of that plan sound nutty to me.

SO YOU ARE NOT OPPOSED TO A NUTTY PLAN? I don't understand you Don.

--------------------------------
Don Dickson said...

I always thought it was nuts that under Texas law you can get deferred adjudication on a murder charge but not in a DWI case.

TEXAS LAW IS NUTTY. We need a complete, thorough and total justice over-haul.

Anonymous said...

Don.........
"What exactly is the course that teaches doublespeak in law school, anyway?"

Maybe it's like Grits says about police officers and attorneys are trained to act stupid.

"To the extent it was "stupid," though, it's also worth remembering it's probably exactly how the officers were trained to behave, whether they're dealing with a black man caught breaking into his own home or some blogger who's babysitting while white."

Maybe you guys can get together with the DA, Grits, and Obama and have a beer summit and discuss the effects of the Harris County DA policy on drunk drivers.

Don Dickson said...

Boyness, methinks you are misunderstanding me on purpose.

I'm not opposed to the KIND of plan that Harris County is implementing. And I already suggested several improvements, supra. I think that as it is presently constituted, the plan is nuts. With different provisions, I think it could be highly effective.

Boyness said...

Don Dickson said...

Boyness, methinks you are misunderstanding me on purpose.

I'm not opposed to the KIND of plan that Harris County is implementing. And I already suggested several improvements, supra. I think that as it is presently constituted, the plan is nuts. With different provisions, I think it could be highly effective.

7/31/2009 08:42:00 AM
-------------------------------

You're right, anytime I fail to understand something, it's on purpose. I really don't get it.

With your clarification, I have a better understanding and that's on purpose 2 :-)

Anonymous said...

Thirty days in jail means somebody probably loses their job

But that loss is someone elses gain, whoever gets to replace him.

Anonymous said...

Here's to all you brilliant people that just wanted to throw away the key on Dui offendent's,. Now this thoughtless diversion plan.DWI was a social norm in this country for eighty freakin year's,then The federal goverment held the states highway fund hostage.We all watched our parents and grand parent's drive merrily down the road with a drink in thier hand's(most pilliars of the community)Then lawmaker's tried to make a social norm a shameful offence overnight.
Gutless State Rep's and Senator's don't have the courage or the vision to come up with any original Idea on how to handle this epidemic of thier own making.
Just make more bad laws and sweep the problem under the rug.Madd's anger is just, but blind.The U.S Contstituion get's walked all over
with every passing bill.Prison's
and Jails are overcrowded and inhabitable.How about alcohol detection modules installed in cars? They exist. How about a state funded Ride home that Taxes the liqour companies for the ride?
Can't any of you Texas Legislature robot's have any original thought's of your own on this matter?

Anonymous said...

WITH REGARD TO INTERLOCK DEVICES.NOBODY WANTS ME DRINKING AND DRIVING,NOBODY WANTS ME TALKING ON CELL PHONES AND DRIVING.
HOWEVER,IT IS OKAY FOR ME TO BLOW AND LOOK AT A DEVICE WHILE DRIVING DOWN THE ROAD... BEAM ME UP SCOTTY..

www.coruña-3d.com said...

Of course, the writer is totally fair.