Posted on
June 12, 2009 in
The Harris County District Attorney’s Office has not had time to talk to the defense bar about the outlines of the new pretrial diversion program for first-time DWI offenders, but it has had time to talk to the press (enough to convince the Chronicle’s editors, clueless about criminal procedure, to endorse it), and now to the misdemeanor court coordinators. We now know the name of the program (DIP) and some of the guidelines and procedures, but we still don’t know the single thing that will be most important to our clients: when or whether a successfully-completed diversion under the DIP program will be expungeable.
Following, for your commenting pleasure, is one court coordinator’s summary of yesterday’s meeting with the DA’s Office:
_________________________
Many of you have been asking me
about the new DIP program for 1st time DWI offenders. Well here is what was said
at our coordinators meeting yesterday…this is what has been put together
so far (it may change – but for now – here is where Lykos is
at)
Disposition Intervention
Program
- Minimize Court Appearance
during disposition period.- Impose conditions based upon
offender evaluation.- Assure supervision criteria
are uniformly applied.- There will be specific
sanctions- There will be specific
incentives- PO will have ZERO
discretion- No second
chances.Qualifications
- 1st Offender, citizen,
reside in Texas.- NO priors in or outside of
Texas- Wrongful arrest does not
count- Inmate are
elligible- Juvenile or state jail
felonies as a juvenile does not count.Exclusions
- Any juvenile adjudication
for 3rd degree felony or higher- Out of state
resident- Judicial Veto can take
placeDistrict
Attorney Screening Process
- NCIC / TCIC
- Review Pretrial interview
sheet- View Video
- RIP, OR & Accident
reportPre DIP
Events
- DA makes offer
- Defendant agrees to
evaluation (this will include 3 – 4 test ~ Urinalysis, SALCE test, risk /
needs evaluation. (defendant will have to pay for all tests) Once evaluations
are completed – recommendations are made- Defense accepts or
declines- Agreement
signedDIP
Events
- DIP docket
- Plea of guilty to specific
punishments- 12 – 24 month DIP
period- Specific sanctions for
violation- Conclusion: dismissal
or punishment assessed.- Everyone on DIP must have
the Interlock on their car for a minimum of 6 months – if no car then SCRAM
will be ordered.Program
Time Line
- 75 – 90 days from date of
arrest- DIP will last from 12 – 24
months
As of right now ADA’s are starting to screen eligible
candidates.
SCRAM as a requirement if def has no car? That’s nuts. Will the full sentence be imposed if a defendant drinks at all?
It’s taking shape. If nothing else, her premature press ejaculation has caused her to scramble to put the details together.
At least it’s something, and I’m sure it will be further refined. I’m not sure of the purpose of a 12 to 24 month DIP except to placate MADD. In this case, something may very well be better than the neocon mess the process has already become. We’ll see.
Doesn’t the plea of guilty requirement sound a lot like a deferred?
Doesn’t allowing the “judicial veto” portion violate separation of powers? The prosecutor can dismiss at her leisure, can’t she and also refer to diversion. Isn’t allowing the court to veto this discretion problematic?
Doesn’t this program appear to be materialized out of thin air simply to meet the so called “deficiencies” of Houston Drivers? The Houston Chron piece detailed the reason for the high number DWI deaths was because people “didn’t plan ahead when drinking” and because of “Houston’s poor public transportation” (and a host of other excuses). Goes back to law makers in Houston fitting the moral cap to the already pervasive behavior that spikes up the DWI’s, rather than simply applying existing law platonically.
Additionally, what of Judges applying the law platonically? There was an interesting post on Chron.com. I am not sure if it was real, but it was substantially “voted” up. Basically, a former Juror for a DWI case suggested that the jury was hung because two juror’s did not agree with the law and thought it was too harsh. They eventually let off the guy (or so the allegory goes). In such a case should not a Judge set the criminal equivalent of a JNOV, and more importantly, should it not be obvious to set it so?
These two issues hint that in a system of retro-fitting a moral cap (by loosening DWI laws), and ever-forgiving juries, is the law really being applied? And just how does an elected judiciary effect the already placating parties (law makers, juries)? I believe these are a recipe for selectively applying popular law (I say it because I care).
Why is it called a “diversion program” if the defendant pleads guilty? It sounds like deferred instead. But if it really is a diversion program for 1st time DWI defendants, I think that is a great idea. I practice in Dallas County. I know of lots of people with one DWI conviction that feel as though this hampers their life significantly.