Pretrial Diversion for DWI

 Posted on June 04, 2009 in Uncategorized

In Harris County, Texas, between January 1, 2009 and May 31, 2009:

1. 3,166 DWI defendants pled guilty or no contest.

2. 1 defendant pled not guilty to the judge and was convicted.

3. 38 people pled not guilty to juries and were convicted.

4. 22 people pled not guilty to juries and were acquitted by jury verdict.

5. 6 people pled not guilty to juries and were acquitted by directed verdict.

6. 646 cases were dismissed.

Of those who went to trial and pled [edit: not] guilty, 28 out of 67-42%-were acquitted. Of the 3,879 cases that were resolved, 674 were resolved with dismissals or acquittals.

Put more starkly, of the 713 people charged whose cases were resolved in the first five months of this year after they refused to plead guilty, 94.5% won.

This is not to beat up on the Lykos DA's Office: in 2007, 1,544 people charged with DWI did not plead guilty, and 1,435 of them-92.9%-won their cases. It is also not a situation unique to DWI: 99.5% of people whose non-DWI misdemeanor cases in Harris County were resolved in the first five months of 2009 after they refused to plead guilty won their cases-acquitted or dismissed. In non-DWI cases, however,

So if you're the elected DA and you want your troops to dismiss (or lose) fewer DWI cases, what do you do?

Some counties offer defendants pleas to non-DWI charges-"obstructing a roadway" or "reckless driving"-instead of DWI. Harris County has long had a policy against doing so; obstructing a roadway and reckless driving are not technically lesser-included offenses of DWI.

Pat Lykos has proposed offering people charged with DWI (at least their first DWI, which is about 80% of DWI cases) pretrial diversion, in a plan that she announced May 28th. (She now claims that the news, which she broke, broke a bit prematurely... hmm, what was happening on May 28th that Judge Lykos might have wanted to distract the public from? Oh, yes, the Office was threatening a criminal-defense lawyer with prosecution to gain advantage in a capital murder trial.)

Paul Kennedy has written about the new proposed policy four times. Murray Newman has written about it three times.

One argument against the potential policy is that it's "legislating from the bench" (it's an argument I heard from prosecutors before Murray). The lege didn't allow deferred adjudication for DWI, the reasoning goes, so a prosecutor does something wrong by offering pretrial diversion. But a pretrial diversion is a controlled dismissal, and the prosecutor's unquestioned authority to dismiss a DWI case includes the power to put conditions on that dismissal.

Lykos admits that the plan's details need work, and some objections to the proposed plan might be resolved (will it apply to all first offenders? will cases be expungeable?) when those details are worked out.

Some lawyers with practices that depend on DWI cases are understandably nervous about the effect that the plan might have on their livelihoods. If the county starts going squishy on DWI cases, the value of a lawyer in such cases decreases (though, as Paul points out, having a lawyer will still be important).

If pretrial diversions are not expungeable (for example, if defendants have to agree that they won't seek expunction), a person could have multiple first-offense DWI diversions.

The reasoning of people who don't plead guilty is that if they plead guilty to DWI, they will be convicted, while if they don't plead guilty they have a chance (94.5% on average) of winning so that they can get their cases expunged, and if they don't win they will get probation if they want it. If DWI pretrial diversion is just another form of deferred adjudication-a two-year probation that technically includes no conviction, but that remains on your record forever-those people who now refuse to plead guilty will rationally continue to do so.

Pretrial diversion is better than a conviction, so those who now plead guilty will rationally and happily take pretrial diversion instead regardless of the permanence of the record. If the object of the exercise is to convert some of thedismissed-or-acquitted cases to pretrial diversions instead, though,then pretrial diversions will have to be expungeable.