Posted on
January 5, 2010 in
None of my DWI clients have yet accepted the Harris County DA’s “DIVERT” program, but I had one client who was considering it, so I acquired a copy of the standard DIVERT agreement. After reading the agreement, she decided to go to trial.
Maybe having a copy of the agreement will help someone else trying to make the same decision.
Harris County DWI Divert Pretrial Agreement
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Good grief! Is that ALL? Why NOT go to trial? I didn’t get out a calculator, but it looked like about $160/mo in various fees, plus a $160 fee to the DA’s office, plus fees for misc testing, etc. I’m know having a DWI conviction might be more expensive in the long run after you pay the surcharge and higher insurance rates, but other than that there appears to be little incentive to sign on to this raw deal.
Mark, the plea of guilty and the language at the end appear to transform this into a form of deferred adjudication, something unavailable and illegal for DWI in Texas. When is someone going to challenge this at the appellate level? Could a defendant do so while “on” the DIVERT program, or would he have to wait until he has violated it and been sentenced to his 30 days? Surely someone could file a writ. And surely brighter minds than myself have considered this problem. If you can say, is anyone planning on stepping up to the plate?
I agree that a guilty plea accepted by the judge makes this a deferred adjudication rather than a pretrial diversion (technically, when the accused enters his plea to the judge, trial has begun), which is forbidden for a DWI.
I don’t know that it is being litigated yet. The defense bar doesn’t have a lot of motivation to litigate it because it is better for our clients to have more options rather than fewer.
I expect that it will be litigated in an expunction hearing in a couple of years, unless a friendly district court judge asks for an AG’s opinion.
Man, We got DUI diversion in Orlando about three years ago, and for the most part it has been a huge success. But ours is nothing like that and would have been a huge dud if such a strict program was implemented.
The 18th Judicial District of Colorado, just south of Denver, has a similar 5-10 page agreement form for “deferred judgments” (DJ) with a couple differences. First, it relegates all the cost and expenses of monitored probation to probation and parole department, which I think cost $50-60/mo in 2009. That difference alone made the “deferred judgment” possible, but not cheap. Contrasted with $160/month… wow. Second, the 18th judicial district’s agreement also makes the defendant stipulate that he will not possess a firearm for the term of the DJ. Something like “Defendant understands that the interests of justice are best served if the Defendant does not possess a firearm on his person or in his home during the term of the supervised probation.”
As a public defender, I couldn’t afford the DIVERT program on my salary right now.
Long time stalker, first time commenter on your blog. Went to a drug court professionals conference this week and my perception of how they are being implemented was completely different than the programs I have had second-hand experience with and what I have read about the DIVERT program from your blog and other TX practitioners, specifically this post that I remembered reading a few weeks ago. The divert program sounds a lot like a traditional DJ that defendants can opt in or opt out, but doesn’t accurately target the population where rehabilitation would have the greatest benefit for society in preventing repeat offending. Michigan is modeling their system way differently, and as suspicious I am of specialized diversion courts, I am almost sold on the MI model. I have more detailed observations in a blog post on my new blog @ https://concurrentsentences.blogspot.com/2010/02/drug-courts-be-jackin-my-style.html
Mark, good to see the 18th PD’s representing. I recently completed a 6 month externship in Arapahoe PD, and I hope the harsh judges and DA culture in the 18th is an anomaly in the CO criminal justice system, but I think the long and overreaching DJ agreement is probably typical and comparable to that offered in other jurisdictions where the DJ is available. The point is that the overall goal of diversion courts is public safety by giving repeat or potential repeat offenders the tools to break addiction patterns that cause them to re-offend in ways that have devastating impacts on innocent people. The goal of a DJ is to get the Def to waive as many rights as possible and get them to essentially plead guilty by waiving that carrot of no criminal conviction in front of them. I think it is very problematic when the two are so intermingled that they can’t be distinguished. When the carrot for the def is no formal conviction, and not some level of rehabilitation or the avoidance of a long sentence, the program is probably going function as just another plea and fail as a diversion program.
has anyone ever stepped to the plate on a divert violation
Not that I know of, but I’m prepared to.