Friday, August 7, 2009

Troy McKinney on the DWI Pre-Trial Diversion Program

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.

27 comments:

Anonymous said...

Wow.

Anonymous said...

Does anyone know what the effect of being in this program has on the obligation to pay the drivers surcharge of $1,000.00 a year?

Anonymous said...

Anon 10:02:

if you complete the pretrial diversion, you don't have to pay the surcharge. The surcharge is only due if you have a DWI conviction. If so, it lasts 3 years.

Anonymous said...

Yes, I understand that normally, you would not have to pay the surcharge if you completed a pretrial diversion. But since everyone is saying that this is not actually a pretrial diversion, and it involves a guilty plea, and that it is actually DADJ by a different name, which is not legal, does anyone know whether DPS will expect their thousand dollars a year anyway?

A Harris County Lawyer said...

My curiosity is how the DIVERT program is going to treat illegal aliens. Since Lykos and the gang have already made the announcement that there will be no probation for illegals, I wonder if that means all of them just get the straight 30 day offer.

Anonymous said...

Murray, illegal aliens just get the 30 day offer. They are not eligible for DIVERT or Probation.

Anonymous said...

Thank you for the well written article on the pre trial diversion program.It was easy to understand.

This program is a little scary. There are way too many questions without answers for me.

If this is not legal how can wonderbitch push it through? What will it take to stop her from implementing this program?

Anonymous said...

First - great article by Troy

I dealt with a prosecutor yesterday who seems as frustrated as I was with the program. First, I was told I had to decide right then at the first setting whether to enter into the program. The prosecutor could not tell me what the conditions would be until I paid $250 for an evaluation. (this later came down to $202). I told them "So you're basically charging me $250 for a plea offer?"

Of course the prosecutor had no contract to review, nor any written guidelines. I asked if any of the big bosses had thought to put it up on the internet where anyone could review it. The roll of the eyes was my answer.

I was amazed that the State actually thought anyone would agree to this even the State had neither the OR nor the video.

The final agreement was they would evaluate the case, no decision was required yet if the client wanted to participate, and the case was reset for a couple of weeks for the State to get the OR and video.

They put a green sticker on the file for DIVERT INTERN to evaluate. You can't help but laugh when you have a 3L making decisions about whether a case is worth trying.

Having read Troy's commentary, I agree that no competent attorney could participate. I wonder how any attorney, including the prosecutor, can agree to an illegal contract (5. The program as currently written contains a component that appears to be illegal...) and not commit at the very least an ethical violation.

The prosecutor was a sport. They seemed frustrated and trying to do the best they could. It was an attitude I don't often encounter.

Ron in Houston said...

Great post.

Now somebody please correct me if I've got this wrong, but isn't calling it a Pre-trial program a little disingenuous?

Maybe they need to rename it.

A Harris County Lawyer said...

Ron,
For them to rename it would be to acknowledge its illegality. Won't happen.

Anonymous said...

I still the the reason for the mass defense attorney protests of this plan are financially related. To the defense attorneys pocketbook.

For Joe Citizen, he's looking at saving thousands of dollars. Figure a savings of $3k total for surcharge fees, thousands of dollars in auto-insurance increases and thousands of dollars in legal fees. Easily, this savings could often be in excess of $10,000.

The biggest flaw I see in the plan is not letting the participants who are literate and competent simply proceed as pro-se in this matter.

The vast majority of counties in this state (the small ones) often have non-lawyer County Judges in County Courts taking pro-se pleas on misdemeanors such as dwi, for time or for probation. Why make Joe Plumber hire a lawyer for this plan? I guess that's a big bone the DA's office thought they would throw the defense bar.

1. I'd like to see some cites as to whether this is "mid" vs. "pre" diversion and the illegality thereof. I think a defendant can contract away certain trial rights in exchange for a screaming deal.

2. I think this program is ideal for the first offender. I'd love to see some stats on how many first time dwi offenders actually get second dwis. For years from defense attorneys, I've been hearing that their clients don't need rehab and are not problem drinkers, now all of a sudden that changes. Now all first time offenders have serious substance abuse histories.

3. I suspect the vast amount of dwi offenders eligible for this program do not have professional licenses or a statute requiring them to report a PTD. The fed immigration definitions won't apply, since you say illegals won't get the diversion.

4. All HC can offer about expungement is that HC won't object to the expungement. Does any rational person think that DPS has the manpower to protest the greatly increased number of expungements that will result in Harris County? And just because dps or another agency objects, the judge can still grant the expungement.

Here too, I think lawyers are afraid of losing more money here because obtaining an expungement pro se is as easy as doing a no-property/no kids pro-se divorce. But it's a simple fact that even if defense lawyers get increased business for expungements under this plan, they can't charge near as much for doing an expungment as they can for doing a dwi case.

5. Not a problem. Again, it's illegal for public officials to remark on an expunged matter but no law prohibits asking. That's opinion that it's wrong, not law.

6. This point is simply a political attack.

7. In my opinion, there's been no ex parte when not talking about an actual case.

8. Again, the defendant can contract away certain rights, just as they do every time a voluntary plea is taken. Defendants waive constitutional rights in both pleading nolo/guilty (ex: right to jury trial) and in the conditions of probation they agree to accept.

9. and 10. I'm glad to see the defense bar is now qualifying this plan as "likely illegal" instead of illegal. It's the client's choice to take the program, not the lawyers.

Anonymous said...

"I'd love to see some stats on how many first time dwi offenders actually get second dwis."

80% NEVER reoffend. 80%. What does that tell you about how many people this will "help"?

Anonymous said...

It is all about the money. Who makes the ONLY interlock with a video the DA and judges will require? Is it a bondsman who contributes heavily? Anyone see a problem with that?

Anonymous said...

The last comment post I read on your blog was in regards to defense bar fear of lost profits as the reason people are balking at DIVERT. Really? Well, what about HCDA motivation for implementing it...

$160 per DIVERT goes straight to HCDA to pay for five interns to do the screening (per RB. Yes, really.) X 5000 candidates (RB's expectation of the number of participants per year) = $800,000 annually (my fast math)

Busted budget plus 800 Gs. Things that make you go hmmmm.

Anonymous said...

If 80% of 1st dwi offenders do not reoffend, then this program is a gift, don't you think? With mandatory draws soon approaching, how will anyone .08 and over contest a dwi?

I'm just thinking this is not a bad deal for the average joe who can't really afford the consequences of a dwi conviction and is guilty, and stands a very likely chance of being found guilty at trial.

What are the total costs for the diversion agreement over the life of the ptd?

Anonymous said...

Anon 5:52, I do very few DWIs because I do very few misdemeanors, and I won't be losing any money to pretrial diversion. Yet as it stands now, I certainly would not advise a client to accept it. First, its not going to save him thousands of dollars. Most first time offenders who take probation do not get interlock devices, and their probation seldom exceeds one year. Yet under the DIVERT program, they will be responsible for the interlock fees for up to 2 years. Furthermore, probationers don't incur $250.00 in costs just to get evaluated so they can see how long they are going to have to pay to be in the DIVERT program. Add to this all the other fees that the individual will be charged for counseling, drug tests and supervision, and its probably going to cost him more than a year's probation will. But its not the cost that concerns me so much as the possibility that the defendant will not be getting what he paid for. What is the point of all this if the record of the arrest can't be expunged? What's the point of it if DPS still wants their 3k in surcharges? And surely you are joking when you say that DPS can't possibly protest all the expungements coming from Harris County as a result of this program? What would be stopping them? Newsflash, DPS has lawyers that can crank out forms just as quickly as any other lawyer can. You want cites about these cases? There are no cites. There is nothing in the law that supports this program. It doesn't conform with the pretrial diversion authority. My guess is that the very first time someone tries to expunge one of these arrests that DPS does object and wins, since there is nothing in Texas law that authorizes this program. DPS will wind up getting their 3k pound of flesh, the defendant will have DWI conviction, and the HCDA and interlock people will have the defendant's money. So much for saving money.

Anonymous said...

Maybe it's just me, but I'd rather have an unexpungeable dwi arrest on my record than a conviction.

Maybe it's just me, but I support having all dwi offenders, whether ptd or probation have an interlock. It makes my family safer.

Maybe it's just me, but I'd go further if I were the leg and require anyone convicted of dwi, whether probation or jail time, have an interlock on their car for 5 years after a dwi, just for safety's sake.

If you've never lost a friend or family member to a drunk driver, maybe you won't agree.

Why not have the state administer the interlock rental program to beef up revenue, instead of putting profit in the hands of the few?

I don't think the argument flies about surcharges with ptd. Under the current law, there are no surcharges if no conviction.

The friends I know who've had a dwi conviction not only paid the surcharge but also paid thousands of dollars a year in increased auto insurance costs, which adds up to $10k to more than $20k over the course of several years.

Anonymous said...

In most of the counties I have practiced in where DPS protests an expungment, judges often grant it anyway, if the DA is on board.

They may have computers to crank out motions in opposition, but that doesn't mean dps has the manpower to make the increased hearings that will result.

Or that judges will even listen to dps in court.

I'm just saying, I've seen da's sign on to expungments that exceeded statutory authorization, and judges agreed because it's what the equity of the situation demanded. I've heard it said more than once with regard to expungements that courts are not only courts of law, but courts of equity.

Many judges I've known are more concerned about alienating voters and potential voters than dps.

Troy McKinney said...

I am very concerned with the "take it today or never" approach to this program when it occurs during the first few settings. I hope this is the exception and not the rule.

We were assured there would still be sufficient time to investigate the case and that diversion would remain available until the case was set for trial.

Criminal defense lawyers have a constitutional duty to investigate the facts and law applicable to the case. If they do not do so, the case pleads for trial-diversion, and the D is later revoked and sent to jail, the conviction is subject to a post conviction challenge based on the lawyers ineffective assistance.

If the decision whether to seek this diversion must be made before there has been a sufficient investigation, the county courts will start seeing a lot more writs in a year or two.

Troy

Troy McKinney said...

I appreciate the generally respectful tone of the comments. I recognize that not everyone is going to agree on every aspect of the DIVERT program or on every aspect of these criticism's. Plus, my first paragraph recognized that for some this is going to be a very good thing. The one thing this program is not -- despite its design -- is one-size-fits-all.

I want to address the money-motive issue.

It is easy to think that lawyers take positions on the merits of issues based only on their personal financial self-interest. While it certainly happens, it is far less common than most would think. Just look at the civil defense bar who championed changes to worker's compensation and medical malpractice law; changes that largely put them, along with the plaintiff's lawyers, out of business. It was hardly in their self-interest. Criminal defense lawyers are even more of an issue-driven group. It is VERY common for them to put their client's interests above their own self-interest.

More specifically, on this issue: First, money has nothing to do with the programs issues. The issues are the issues regardless of how much or little a lawyer gets paid.

Second, most defense lawyers will not make any more or less because most criminal defense lawyers charge flat fees: that is, one fee regardless of how the case works out. If, as I think is likely to be the case, this program, coupled with the new 30 day offers, will result in more trials, those of us who charge additional trial fees are likely to make more money, not less.

Additionally, in my case, I am likely to make more from any client who chooses this option because I will be charging an additional fee to remain their attorney of record for 12 to 24 additional months. If the client chooses not to pay the additional fee, I will withdraw as their attorney at the time of the plea-diversion.

Under this mid-trial program, the attorney who is the attorney of record at the time of the plea-diversion will still be on the case when it comes revocation or dismissal time, though they really do not need a lawyer for dismissal.

Criminal defense lawyers typically charge a fee to handle a revocation proceeding and it is not part of the fee charged in the primary case.

I suspect that lawyers who get stuck doing revocation work for no fee will be a lot less inclined to remain the attorney of record post plea-diversion or will follow my lead and charge more money to do so.

If judges start to deny motions to withdraw, it is likely to result in larger initial fees, not smaller ones.

Troy

Anonymous said...

I suspect there will be plenty of advertising/blogging/greensheet lawyers (not that they are all the same), that will charge a bottom dollar fee to handle these ptd cases, whether or not they're on for the life of the agreement.

I know there will be monied defendants who, for whatever reasons (don't want to be on probation, don't think they're guilty, can't take a ptd or conviction for job reasons) will shell out the big flat fees to lawyers or will seek out those A list lawyers who charge different fees for plea or trial.

No matter what, it's gonna change the business model of criminal defense work from top to bottom, especially in this slow time we're going through now.

Now, the real question is does HC start a PD's office and wipe out the tons of tax dollars for appointed attorneys and instead pay those tons of money to the new PD's office?

Anonymous said...

2007 Alcohol related fatalities - 12,998

Annual deaths from medical malpractice -98,000

When are we starting MAID? (Mothers Against Incompetent Doctors)

Anonymous said...

I can't say it any better than the first poster.....WOW! Great presentation by a top shelf experienced lawyer--Troy McKinney. Sound judgment vs. sound bites would sum up the difference between Mr. McKinney and Judge Pat. Prima facie evidence that experience and ability do count at the end of the day.
One of my concerns as a Harris County citizen that has not been addressed is whether or not this exposes the county to any civil liability? On it's face it appears that the policy is not only illegal but also that offenders will be coerced into giving up certain rights and not receiving what they bargained for in return. Fraud in the inducement might come with a hefty price tag. Will individual ADAs be shielded from personal liability claiming ignorance or will they be held to the standard of: if they didn't actually know they should have known they were acting improperly?

Anonymous said...

Anon 6:51,
Not to worry Obama will take care of the doctors soon. He and Lykos have some similar experience issues and fantasy based ideas. We'll get both death numbers up in short order.

HPD Officer said...

My main concern, which is shared by most of my co-workers, is that a dismissal instead of a conviction will warp future arrests/prosecutions for those who do re-offend. This was the intent of banning deferred adjudications. The intent of the program (if applied to true first-time offenders who are at or around 0.08-0.10) is not a bad idea, but the DA's office can't legislate by policy. She should have (God forbid) run for state legislature if that was her intent.

Anonymous said...

Troy is absolutely right about the expunction pitfalls. I had several of these that I shepherded over the years in Harris County and it was never the DA who opposed them, it was often DPS or the city who made getting the expunction a total nightmare. It is, by no means, a done deal. You're filing a civil lawsuit, after all, and any time you dabble over in that "other" courthouse you are liable to end up real sad and real unhappy. For instance, wrapping up this case took me all of two years:

http://www.houstonpress.com/2000-03-23/news/high-tech-hell

Bottom line, the promise of an expunction is about as valuable as the promise of Congressmen to stop spending your money.

-Eric Morehead-

Anonymous said...

I realize I'm commenting on a blog page that is 5 years old, but I came across it during a search to see what the sucess rates are for the DWI pretrial diversion program in Harris County. I'd like to know if you are as opposed to the new DWI pretrial diversion program instituted more recently 2013-14, or do you find it acceptable? My son is currently involved, and in his 10th month of very stringent probation program and all of a sudden it is going to hell in a hand basket. Is this program better than the DIVERT from before? Thank you.