I recently asked my friend and legal genius, Troy McKinney, if he would mind taking time out of his busy schedule and sharing his views on the new Pre-Trial Diversion program. For those of you outside the criminal law field, Tory is one of the most knowledgeable minds in criminal law across the board, but has a specialty in DWI law. He is a nationally recognized attorney and I appreciate him very much for posting the following, well-researched and well thought out article on why the Diversion Program is a terrible idea.
Many have very mixed views about the DWI diversion or intervention program being initiated by the Harris County District Attorney's Office. Below are some of the problems I see in the formation and implementation of the program. While there is no doubt that some folks will benefit from getting a disposition that does not involve a full trial and does not result in a formal conviction, I fear that for far too many more it will be little more than a false promise crushing false hope. Whatever else this program does, it will solve very little for those who really need such a program -- either because they have a serious drinking problem or because a conviction will threaten their career. In large part, this program is more designed to fail than succeed.
1. It is important to know what this program is not. Despite its title as a "pretrial” intervention or diversion program, it is not a pretrial program. Indeed, the program expressly requires that trial begin. While there is plenty of statutory authority for a "pretrial” intervention or diversion program, there is no statutory authority that I have been able to find for a mid trial intervention or diversion program. Traditional pretrial intervention programs are just that: pretrial. Traditionally, if one breaches an agreement in a true pretrial diversion program, the case returns to court pretrial -- as though there has been no pretrial diversion or intervention. The closest authority I can find concerning a mid trial diversion program makes such programs illegal in DWI cases. Texas law has outlawed deferred adjudication in DWI cases for a quarter-century: since 1984. Statutory deferred adjudication works just like this program. The Defendant enters a guilty or no contest plea, waives all of his constitutional rights, agrees to a plea bargain and then rather than getting sentenced, gets the declaration of guilt deferred so long as he completes certain probation conditions. Every aspect of deferred adjudication matches this new program. Giving this program a name that sounds legal does not make it so. On its face it appears to be little more than an illegal deferred adjudication.
2. It is doubtful that this program will result in much, if any, rehabilitation of those with serious drug and alcohol problems. I asked leaders in the DA's office whether this program was patterned after any kind of accepted treatment model or whether they had consulted any recognized experts in creating this program. I was told no to both questions. For those people who have serious drug or alcohol problems, recovery is not usually a bright-line, never again, I am forever substance free process. True, long term recovery often involves relapses. There is no accepted or successful long term rehabilitation program that does not recognize that relapses must be dealt with as part of treatment. We all wish it was different, but it is not. Just ask Judge Lykos whether she would likely relapse if she had to stop smoking cold-turkey today -- a habit she has had for decades. Any honest answer would likely include some relapse. Yet, despite all of the recognition that relapse is part of the recovery process, this program assures that anyone who relapses and is either caught or admits it as part of treatment, will no longer get any treatment or rehabilitation. Instead, they are headed straight to jail for 30 days. Most of those with real substance abuse issues who could benefit from treatment will not join this zero-tolerance, go to jail program. The mantra being sold to the public that this program will reduce driving while intoxicated cases, is little more than a bill of goods. It is designed not to include and rehabilitate those who need it the most.
3. Most, if not all, of those who need a diversion program to save a career cannot participate in this program because the guilty plea requirement ensures that it will be treated like a conviction, regardless of whether it legally amounts to a conviction. There are already a half-dozen statutes on the books that require some professionals to disclose pretrial diversions. The federal government will treat this disposition as a conviction, just as it now does for deferred adjudications. Most employers will not see past the guilty plea: it will matter not that there was no finding of guilt or the case was later dismissed. Thus, those people who have almost any kind of government license, including lawyers, accountants, doctors, chiropractors, nurses of all kinds, licensed medical assistants of all kinds, pilots, bus drivers, chauffeurs, truck drivers, seamen, train operators, those involved in banking and securities, and just about anyone who drives a company car will get no benefit from this program because it is designed to ensure that it harms them just as much as a conviction. Thus, for those who suffer from a DWI conviction far out of disproportion to the norm, there is now less available to them than there was before. This is hardly progress.
4. One of the carrots being dangled by the District Attorney's Office is that two years following completion of the program, the person will (contrary what was reported by the Chronicle) be eligible to have the arrest expunged. Expunction eliminates all record of the arrest and prosecution and makes it a crime for any public official to use records of the arrest for any purpose. While I have no doubt that the Harris County District Attorney's Office will make good on its promise not to oppose expunction two years after completion of the program, I have no faith other law enforcement and government entities will do likewise. It is already very common for the Harris County DA's office to agree to expunctions because it is the right thing to do, just to have the Department of Public Safety or other entity oppose it. I can hear the opposition now: despite the title, this is really deferred adjudication and you cannot expunge a deferred adjudication. No one in the District Attorney's Office can ensure that expunctions following pretrial diversion in DWI cases will not be written out of the law by the legislature, just as they wrote deferred adjudication out of the law for DWI cases. Frankly, I think it is more likely than not to happen once MADD realizes that the real target audience for this kind of program, the hard core drinkers with real problems, are not going to be part of the program.
5. The program as currently written contains a component that appears to be illegal. The program requires a person to sign a document under oath stating that they have never before had any arrest expunged. The expunction statute expressly allows someone who has had an arrest expunged to deny that they were ever arrested – unless they are testifying under oath in a criminal proceeding. Whatever else this written agreement with the DA may be, it is not testifying under oath. The expunction statute makes it a crime for any public official who has knowledge of the expunction to use records of it for any purpose. Requiring someone to disclose that which they are allowed by law not to disclose is wrong. Using that information to exclude them from this program is just as much a use of the records as though they had hung on to them and not destroyed them in the first place. The DA's office is not free to ignore the law just to reach a result, especially when doing so is likely a crime.
6. Judge Lykos campaigned against silly policies that locked line prosecutors into making recommendations that they did not feel were appropriate to the case. Some of the leadership in the DA's office have told line prosecutors that they want to preserve their discretion and that they need not offer this program to anyone for whom they feel it is inappropriate. At the same time, however, the District Attorney's office is requiring that line prosecutors not offer less than 30 days in jail on a first offense DWI -- even though the statutory minimum is three days and even when that line prosecutor thinks a punishment of 30 days is too harsh and less than 30 days is appropriate. So much for trial court prosecutors’ discretion. So much for campaign rhetoric when it gets in the way of reaching a result. Some have suggested that some victim’s groups’ public acquiescence to the diversion program came coupled with the demand for 30 day minimums. If there was any such discussion, much less an agreement, formal or informal, the public has a right to know.
7. Many criminal defense lawyers are disturbed by the appearance of impropriety that has arisen from the DA's office's private meetings and communications with the judiciary (excluding the defense bar) that have resulted, according to DA Office leadership, in the judiciary's preapproval of the program's revocation process -- even though there is no statutory process for such revocations -- and that has resulted in convincing some judges to "go-along" with the minimum 30 day offers. There is not yet enough definitive information to claim that any ethical lines were crossed, but, at best, it sure smells awfully bad. I wonder how the District Attorney's Office would react if the defense bar met ex parte with judges to devise a plan for how the judiciary would handle future requests by the defense bar for something like discovery. Since it did not involve a current case, I am sure they would see no problems with it.
8. The revocation process likely denies everyone due process of law as it does not require the State to prove anything. It only requires a judge to find that there is probable cause to believe that there was a violation of the agreement. This probable cause standard is satisfied merely by an assistant DA saying that someone said the person did something wrong - regardless of whether it is true. "Trust me, I am from the government," ought to make everyone worry about this unbridled discretion that will certainly result in people who have not violated their agreement being found guilty and sentenced to 30 days in jail. While the defense bar was assured that we would get due process of law, the probable cause standard starting point makes few of us hopeful-- particularly since there can and will be no appeal from the decision to revoke the contract.
9. The evaluation process ensures that any competent lawyer will advise their client against participation in it. Before a formal agreement is reached, there must be a formal evaluation done by the probation department. Based on the results of the evaluation, a program will be recommended. The defendant can either accept or reject the proposed program. If the defendant rejects the proposed program, the case proceeds to trial. To date, however, the District Attorney's Office has not committed not to use the results of the evaluation against a defendant at trial. Without such a promise, no competent lawyer could recommend that their client participate in the evaluation process and write the DA's office a blank check to use against them at trial.
10. Around 50 percent of DWI cases that go to trial today result in acquittals. This program assures little more than that more cases go to trial. At a time when jail overcrowding is a serious problem in Harris County, this program does little more than ensure that more beds go to DWI offenders than serious felons. While there are some who will make it through this program, for the vast majority, this program is little more than a good, basic idea gone bad in implementation. For those who need it the most, it is a non starter because of its design. It is unfortunate that the DA's office sought no input from those who deal with thes cases from the defense side of the bar before rolling out a program that is more likely to fail than succeed and is likely illegal.