Surgin’ Diversion Coercion

It’s against my nature to continue letting Houston DWI lawyer Paul Kennedy pick the low-lying fruit of the Harris County DA’s new DIVERT (the acronym, as I understand it, stands for “maybe this will make the voters love us”) DWI diversion program.

This program is prosecutor Roger Bridgwater’s baby. I believe Roger’s heart is in the right place. He is trying to help people, but despite the best of intentions, the program is an excrescence. As Paul points out, it’s “justified” by a bunch of contextless statistics. Its planned implementation is highly coercive: first offenders who decline to participate in the program or take probation will be offered 30 days in jail. And its effectiveness is purely speculative.

Pat Lykos announced the plan before it was fully formed. Roger Bridgwater and Pat Lykos had no idea what they were doing when they met with the press about the program, and it was clear from Roger Bridgwater’s “informational” meeting with the criminal defense bar today that the Harris County DA’s Office still doesn’t know what it’s doing, any more than it did when it was decided that misdemeanor prosecutors would try whale cases.

Roger Bridgwater thinks that the statistics explain why there are so many roadway deaths. Based on what he sees in the numbers, and with no evidence, he’s created a program that he thinks will solve that problem. Roger is using the misdemeanor courts as a laboratory for his experiment in amateur social engineering. Fair enough, except that he’s using real people charged with DWI as his unwilling guinea pigs.

In designing the experiment, Roger didn’t seek input from the criminal defense bar. If he’d wanted to figure out how to create a treatment program that people charged with DWI would find more palatable than a jury trial, he would have asked the lawyers who will be advising those people on whether to enter the program or not. Apparently he didn’t seek input from the prosecutorial bar either; I would’ve thought that lawyers who had prosecuted lots of DWI cases might have a valuable insights or two.

The DA’s Office did, however, vet this with the judges in what Roger called an “informational meeting” but described as ending in an agreement on how the courts would proceed following a violation of the DIVERT contract.

Are the judges “on board?” Was the meeting an improper ex parte contact? (While they weren’t discussing any one case, they were discussing every first DWI case without counsel for the accused, or even a representative of the defense bar, present.) The public information requests should prove interesting. Any judge who has agreed that 30 days is the minimum sentence for a first DWI is disqualified (by prejudice and the appearance of impropriety, if not the actual inability to follow the law) from hearing such cases.

The draft DIVERT agreement is six pages long and onerous. It requires an ignition interlock(of a type that only one company offers. . . hmmmm) for the first six months. Probable cause is enough to terminate the agreement. There will be lots of high-volume lawyers who see this as the best thing since deferred adjudication for resolving cases without actually, y’know, trying, but I don’t see myself encouraging clients to sign it unless the State has them dead to rights and they want to be at the mercy of the Harris County DA’s Office for another two years.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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6 Responses to Surgin’ Diversion Coercion

  1. That’s even worse than I understood from the press coverage. Ignition interlocks on the first offense is pointless and too expensive. A LOT of people are going to roll the dice and go to trial, no doubt. This isn’t going to “divert” people from the jail it’s going to fill the jail up.

  2. Nice to see that at least someone wants to see a type of deferred available for DWI 1sts. I’m a big proponent of allowing deferred on DWI 1st. However, the conditions of this seem pretty crazy to me. Especially when it can be yanked from you for no apparent reason.

    Punishment for 1st keeps going up and up. I posed today about the Feds getting involved as well. Now it seems that they want ignition interlock as a probation condition for 1st in all states, or no road funding will be coming their way.

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

    Thanks for letting us know about this program. It is nice to get the view of attorneys who practice in the jurisdiction to get the real scoop instead of relying on articles and press releases.

  3. Morgen Daniels says:

    I practice in a state where we have a diversion program that requires only classes or treatment, no more driving with alcohol in the system, and a victim’s impact panel, all to be done within one year. This thing you’ve got looks ridiculously onerous–don’t think I’d recommend it to my worst enemy. Is it in any way shape or form better than the typical sentence someone would get after a guilty verdict? It’s worth something to get the charge dismissed, I suppose, but there are so many conditions that it seems likely many many participants would fail and end up with the conviction anyway…

  4. Jamie Spencer says:

    Did I get this part correctly (either from one of your or Paul’s posts or one of Troy’s on the listserv)?

    To get pretrial diversion, the defendant actually pleads in front of the judge, case reset for sentencing however far off, D is then let into the program, and if they complete it, what? I guess it’s dismissed somehow? Motion for new trial?

    And if they screw it up, they still get the 30 days in jail? “Automatically” – because they have pled open, the judge just gives ‘em 30 days?

    Or did I misunderstand that part?

    • Mark Bennett says:

      My understanding is that the defendant pleads, but the judge doesn’t find him guilty unless he screws up the program, in which case he is found guilty and sentenced to 30 days.

  5. Pingback: The DA’s new DWI program – Off the Kuff

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