| Houston DWI Attorney Paul B. Kennedy 811 Heights Boulevard, Houston, Texas 77007 Tel: (832) 606-9432 Fax: (866) 587-2584 DWI Defense, Criminal Defense, Traffic Tickets, Family Law |
Defense lawyers said the Harris County District
Attorneys office's new DWI diversion program, set
to begin Aug. 1, may be unworkable, and possibly
illegal, after hearing the details Wednesday.
Under the new program, those accused of a first-
time DWI will be offered the diversion program or
30 days in jail and a $750 fine. Defendants who
do not want either choice can take their cases to
the judge or to trial.
Currently, some first-time DWI defendants are
given the option of pleading guilty, paying a $100
fine and taking three days in jail, plus two days,
which they do not have to serve if they behaved
during the first three.
Known around the courthouse as a 3/2/$100, the
deal will not be offered after the diversion
program begins.
Those who take the diversion program will plead
guilty and get a maximum of two years probation,
including treatment and community service. If they
successfully complete the probation, their records
will not show a conviction for driving while
intoxicated. If they fail, they will be sentenced to at
least 30 days in jail under a contract signed when
they take the deal.
JoAnne Musick, president of the Harris County
Criminal Lawyers Association, said the program
is coercive and appears to thwart the intent of the
Legislature, which prohibits deferred adjudication
for DWI offenses.
“It could have been a good program. It could have
been an exceptional opportunity for people who
have made a mistake and driven when they
shouldn't have,” Musick said. “At the same time, I
think it's very poor planning and execution on how
to conduct the program.”
She said the plan is coercive because
defendants have to waive their rights, sign a
contract and plead guilty. She said defendants
could be sent to jail at the smallest amount of
evidence of a mistake or if they fail to fulfill every
requirement.
Legislature acted in 1990s
Because the Texas Legislature outlawed deferred
adjudication for DWI in the 1990s, Musick said the
program may be illegal.
“It sounds like deferred adjudication,” she said.
Deferred adjudication allows criminal defendants
to plead guilty to a judge who defers making a
finding of guilt pending the successful completion
of probation. Defendants who successfully
complete the terms of deferred adjudication avoid
final conviction, but the fact that they were charged
remains a part of their records.
Assistant District Attorney Roger Bridgwater, a
senior administrator in charge of implementing
the program, said it was not deferred adjudication
but pretrial intervention, which is allowed by
another statute.
He also said he discussed the plan with key
members of Houston's delegation to the Texas
Legislature.
However, the distinction left defense attorneys
shaking their heads after Bridgwater said that a
defendant who decides to enter the program will
sign a contract to spend 30 days in jail, plead
guilty to a judge, then have the punishment set
aside pending the successful completion of a 12-
to-24-month probation.
The carrot and the stick
Bridgwater said the program was borne of a
concern about DWI deaths in Harris County.
“This is not an effort to coerce somebody to take
probation or do something else,” he said. “It's an
effort to let them know this is a bigger deal than
one night in jail.”
And if 30 days in jail is the stick, Bridgwater said
the carrot is that true first-time offenders who
make one mistake will not have a criminal record
that could ruin their lives.
Bridgwater gave the presentation to more than 50
criminal defense attorneys and fielded questions
afterward.
“This isn't for ‘The World,' ” the assistant DA said
in response to questions about the various kinds
of exceptions that the defense attorneys might
throw at him. “This is for a select group of people.”
Among other issues pointed out by defense
attorneys, the program may not decrease the jail
population — one of the original goals — and
could actually increase it.
Bridgwater said the District Attorney's Office is
looking at other ways to decrease the jail
population.
Attorneys office's new DWI diversion program, set
to begin Aug. 1, may be unworkable, and possibly
illegal, after hearing the details Wednesday.
Under the new program, those accused of a first-
time DWI will be offered the diversion program or
30 days in jail and a $750 fine. Defendants who
do not want either choice can take their cases to
the judge or to trial.
Currently, some first-time DWI defendants are
given the option of pleading guilty, paying a $100
fine and taking three days in jail, plus two days,
which they do not have to serve if they behaved
during the first three.
Known around the courthouse as a 3/2/$100, the
deal will not be offered after the diversion
program begins.
Those who take the diversion program will plead
guilty and get a maximum of two years probation,
including treatment and community service. If they
successfully complete the probation, their records
will not show a conviction for driving while
intoxicated. If they fail, they will be sentenced to at
least 30 days in jail under a contract signed when
they take the deal.
JoAnne Musick, president of the Harris County
Criminal Lawyers Association, said the program
is coercive and appears to thwart the intent of the
Legislature, which prohibits deferred adjudication
for DWI offenses.
“It could have been a good program. It could have
been an exceptional opportunity for people who
have made a mistake and driven when they
shouldn't have,” Musick said. “At the same time, I
think it's very poor planning and execution on how
to conduct the program.”
She said the plan is coercive because
defendants have to waive their rights, sign a
contract and plead guilty. She said defendants
could be sent to jail at the smallest amount of
evidence of a mistake or if they fail to fulfill every
requirement.
Legislature acted in 1990s
Because the Texas Legislature outlawed deferred
adjudication for DWI in the 1990s, Musick said the
program may be illegal.
“It sounds like deferred adjudication,” she said.
Deferred adjudication allows criminal defendants
to plead guilty to a judge who defers making a
finding of guilt pending the successful completion
of probation. Defendants who successfully
complete the terms of deferred adjudication avoid
final conviction, but the fact that they were charged
remains a part of their records.
Assistant District Attorney Roger Bridgwater, a
senior administrator in charge of implementing
the program, said it was not deferred adjudication
but pretrial intervention, which is allowed by
another statute.
He also said he discussed the plan with key
members of Houston's delegation to the Texas
Legislature.
However, the distinction left defense attorneys
shaking their heads after Bridgwater said that a
defendant who decides to enter the program will
sign a contract to spend 30 days in jail, plead
guilty to a judge, then have the punishment set
aside pending the successful completion of a 12-
to-24-month probation.
The carrot and the stick
Bridgwater said the program was borne of a
concern about DWI deaths in Harris County.
“This is not an effort to coerce somebody to take
probation or do something else,” he said. “It's an
effort to let them know this is a bigger deal than
one night in jail.”
And if 30 days in jail is the stick, Bridgwater said
the carrot is that true first-time offenders who
make one mistake will not have a criminal record
that could ruin their lives.
Bridgwater gave the presentation to more than 50
criminal defense attorneys and fielded questions
afterward.
“This isn't for ‘The World,' ” the assistant DA said
in response to questions about the various kinds
of exceptions that the defense attorneys might
throw at him. “This is for a select group of people.”
Among other issues pointed out by defense
attorneys, the program may not decrease the jail
population — one of the original goals — and
could actually increase it.
Bridgwater said the District Attorney's Office is
looking at other ways to decrease the jail
population.
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| Lawyers call DA's proposal coercive By BRIAN ROGERS Copyright 2009 Houston Chronicle July 29, 2009 |
The Harris County District Attorney's Office informed members of
the defense bar of the DA's new coercive DWI pretrial diversion
policy this afternoon. Mr. Roger Bridgwater, formerly a state district
court judge, laid out the details of the new "take it or leave it" policy.
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:
A person may be excluded from the program as a result of:
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.
the defense bar of the DA's new coercive DWI pretrial diversion
policy this afternoon. Mr. Roger Bridgwater, formerly a state district
court judge, laid out the details of the new "take it or leave it" policy.
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.
| Harris County rolls out new coercive DWI program |
| "The Defense Rests" July 29, 2009 |
| To View documents from the Harris County District Attorney's Office regarding the DIVERT Program, click here. 1. Draft contract 2. Frequently Asked Questions 3. Power Point slides |
Houston DWI Attorney Paul B. Kennedy defends citizens accused of drunk driving and other crimes in Houston, Galveston,
Conroe, Sugar Land, Richmond, Missouri City, Harris County, Galveston County, Fort Bend County, Montgomery County,
Brazoria County, Waller County , Walker County, Austin County, Polk County, Jackson County, Fayette County and
Colorado County.
Conroe, Sugar Land, Richmond, Missouri City, Harris County, Galveston County, Fort Bend County, Montgomery County,
Brazoria County, Waller County , Walker County, Austin County, Polk County, Jackson County, Fayette County and
Colorado County.