Posted on
July 16, 2009 in
Houston DWI attorney Paul Kennedy reports:
A citizen confronted with a first-time DWI will be offered pretrial diversion (if eligible) or 30 days in the county jail. The other option is to ask the judge for probation without a recommendation from the prosecutor.
. . . .
Said an unnamed source, “the plan is to force people into pretrial diversion.”
This is the Harris County DIP (which is now to be called DIVERT: Direct Intervention using Voluntary Education Restitution and Treatment) program he’s talking about.
We now know that the offers will be:
- 30 days in jail for first offenders if they take diversion, probation, or jail time. FIne $750.00
- 45 days if open container if they take diversion, probation or jail time. Fine $1000.00
The DA’s Office will, contrary to Paul’s information, be recommending probation for people who don’t want DIVERT or 30 days in jail. (But what’s the point of that?)
As a criminal-defense lawyer who makes part of his living defending DWI cases in Harris County, I can live with this. But conscience forces me to point out that there’s a number that the plan does not take into account.
94.5%. That’s the fraction of the 713 people in Harris County whose cases were resolved in the first five months of this year after they refused to plead guilty who beat their cases—got them dismissed or got acquitted.
Pretrial diversion will appeal to those who would otherwise plead guilty to an agreed probation (other than the requirement of an ignition interlock for the first six months of DIVERT, it looks like a better deal for someone who can successfully complete probation).
It will appeal to some of those who would otherwise plead guilty to an agreed time-served sentence (3-2-and-a-hun); some, however, will prefer jury trial (with jury punishment, perhaps) to a year or two of government supervision.
It will not, I hope, appeal to those who think that 94.5% is a pretty darn good chance of winning a DWI case outright.
94.5%. That’s the fraction of the 713 people in Harris County whose cases were resolved in the first five months of this year after they refused to plead guilty who beat their cases—got them dismissed or got acquitted.
Where do you get this number?
See the link here.
Your use of these statistics, while artfully phrased, is a bit misleading here, Mark. It seems to suggest to defendants that the mere fact that they resisted the coercive power of the government by refusing to plead guilty led to them “beating” their DWI cases at a rate of more than 94%.
But there is another way of looking at the numbers which is probably more helpful and definitely more accurate.
1. Of the total number of defendants arrested in your sample, 82.6% were convicted.
2. 81.6% of this number were convicted via guilty plea, meaning, essentially, that both the State and the Defendant agreed that the evidence was sufficient to support guilt.
3. Of the remaining 17.4%, 16.6% had their cases dismissed, meaning, essentially, that both the State and the Defendant agreed that the evidence was insufficient to support guilt.
4. That leaves 1.8% of the sample. In these cases, the State and the Defendant could not reach an agreement, and some kind of contested hearing resulted. Out of THIS small number (67) 58% were convicted. Not too far from coin-toss odds and actually a bit better for the State than I expected. While the stakes are not as high in misdemeanor court as they are in felony, these type of odds might be enough to give a reasonable client pause before going to trial.
This is not to say your point isn’t valid: Resistance often – though certainly not always – yields better results than a negotiated surrender. But let’s not exaggerate. For cases where neither side backs down, clients should be reasonably informed that their chances of prevailing are NOT 94%, but more like 42% or so. Again, possibly enough to make some of them think twice, especially if a trial fee is involved.
Trial fee? We don’ need no steenkin’ trial fees.
The State never says, “either take this deal or we’ll dismiss.” When the accused makes the choice not to plead guilty, he doesn’t know or control whether the State will back down. The accused has to apply the odds that he knows to the imperfect information that he has.
Also, each person’s decision affects the market. The more people don’t plead guilty, the more often the State will have to back down. Each person who tells the State “no thanks” improves the odds not only for everyone else but also for himself.
I can’t make these numbers work in the way you say they do.
You certainly seem to hand wave away the large number of guilty pleas. Do you actually beleive that the small sample of cases that go to trial is indicative of the whole population of charged DUIs?