I Don't Know Where to Begin . . .

I have to admit that I was pretty much caught off guard to read this article from the Houston Chronicle today announcing that your friend and mine, Patsy Lykos, had decided to create Pre-Trial Diversions for first time DWI offenders.

Now, I know that I am now a defense attorney and should probably be dancing in the street over any type of program that gives wholesale leniency towards a type of crime, but this policy decision deserves a pretty critical look, if you ask me. Now, I know that the Chronicle was practically gushing in it's article, but that's to be expected. After all, Lykos did support them in their efforts to have the Press Shield Law passed (becoming one of about, uh, two District Attorney's in the State to actually support it). In doing so, she bought the Chronicle's love forever, so expect this type of ass-smooching to continue for some time.

As a side note, the term "Journalistic Integrity" has officially become an oxymoron in Houston, but I digress.

First a little background on Texas DWI law as it now stands. Driving While Intoxicated, even a first offense is one of the very very few crimes in the State of Texas that a Defendant cannot receive a Deferred Adjudication. You can receive probation, but the conviction is going to be final. Many people from the Defense Bar and elsewhere have railed against this as being a direct result of over-lobbying by Mother's Against Drunk Driving (MADD, for those of you who have been living in a cave for the past 30 years).

Perhaps so. I'm not really entering into that debate right now. I'll let people who practice DWI law handle that aspect.

The bottom line, however, is that the Texas Legislature dictates that there is to be no Deferred Adjudication for DWIs. The prosecutors have no discretion in that matter, unless they want to reduce that charge to something else or dismiss it. They are pretty stuck with pleading it to a probation or jail time, or take the case to trial.

That is, until Patsy came in with her new program and began (for the first time in Harris County history) an actual policy of doing Pre-Trial Diversions on all first time DWIs.

A pre-trial diversion is an unofficial probation that if a person successfully completes their "probation" the case is completely dismissed and then can be expunged off the person's record as if the DWI never happened. No conviction. No record. A pre-trial diversion is even better than a Deferred Adjudication.

If you don't like judges who "legislate from the bench", how do you feel about an ex-judge legislating from the D.A.'s office? Her message of creating a pre-trial diversion policy is pretty much subverting the intent of the legislature (whether you agree with them or not).

Since Lykos failed at winning a Statewide Office in 1994, I guess she just decided to make herself the Senate, House, and Governor on this particular issue.

Another issue I have with Lykos' new policy statement is that it is an across-the-board policy. All first offender DWIs get Pre-Trial Diversion? Really?

Okay, so the thirty year old guy with a spotless record who gets stopped for speeding and blows a .09 I can live with.

How about the 25 year old kid who crashes his car into the side of a house and blows a .24? Are we still feeling that this is something that needs to be completely wiped off of somebody's record?

Her policy of giving Pre-Trial Diversions to all first time DWIs is the definition of "reckless and negligent" (where have I heard that term before?). It is overbroad and it sends a clear message that the best place to drive drunk for first timers is Harris County, Texas.

Good job there, Snooks.

And my third and final issue with Lykos' policy is that once again she is (yet again) misrepresenting the facts to sell her agenda. The reality of first time DWI cases is that it is extremely rare that a person actually goes to jail on a first offense. They can be ordered to treatment and get all of the benefits that Lykos is now touting as somehow only being available under Pre-Trial diversion.

In addition, to sound tough to her pro-law enforcement crowd, she decided to give a stern warning: "Lykos warned those who did not abide by the program, or were arrested for other charges, would face maximum sentences."

Um, yeah, a person who screws up a pre-trial diversion is basically having their case brought back to life. They will still have the right to take their case to trial and be absolutely no worse off because they failed at pre-trial diversion.

Awhile back, one of my commenters criticized me for not being able to make up my mind over whether I thought Lykos was either a defense attorney in disguise or an over-zealous "win at all costs" prosecutor. My answer to that criticism is that I can't make up my mind until Lykos decides who in the hell she wants to be. She's like a windsock that is basing her policy decisions on whatever will be the most politically advantageous to her.

If she's trying to be a media darling, she is going to be following in the footsteps of Dallas County District Attorney Craig Watkins, who is doing every thing he can to turn his office into a pseudo Public Defender's Office.

If she's back to pandering to her Republican base, she's trying to be Johnny Holmes.

The bottom line is that Pat Lykos is a joke of a politician with no substance and integrity. The job of the District Attorney is to represent the State of Texas in enforcing it's laws and to ensure that Justice is done. A good District Attorney does that job regardless of whether or not the media is kissing his or her ass or if the public loves them.

I'm reminded of what my favorite author, Cormac McCarthy said when interviewed by Oprah on an issue: "You work your side of the street and I'll work mine."

I don't think the elected District Attorney should be acting as a Defense Attorney.

Oh, and as an addendum, I would be remiss if I did not mention the final quote of the article in our "Well, No Sh*t" Department, where Lykos finally admitted that she doesn't think of herself as "warm and fuzzy".

I know we can all sleep easier knowing that she doesn't believe herself to be a chain-smoking Teddy Ruxpin.

NOTE: Since posting this article a couple of hours ago, the Chronicle has modified their original article, including taking out Lykos' moronic quote about not being "warm and fuzzy". So, I guess you folks that read the article before the Chron changed it to protect their gal will just have to vouch for me!


Anonymous said…
You forgot to point out that this is ANOTHER policy that her staff gets to learn about via the Chronicle.

Also, who is going to provide the treatment? If they are on PTD, they are not monitored through probation.

I don't have a problem with it, except for the fact if they aren't successful on their PTD, then the case is re-opened and the DA is now looking at a very old DWI.
Anonymous said…
I love how, once again, the folks who are expected to carry out this new "policy" have learned of it, not by any sort of interoffice memorandum or office-wide email, but by reading about it in the paper.

That's some stellar management at work.
Anonymous said…
To: A Harris County Lawyer: Please let me post. Since I am no longer a youngster and thus no longer lack the necessary immaturity to contribute to this blog according to at least one "it", being on Depends and requiring frequent naps, and having been chastized by an anonymous intellectual giant a/k/a "it", I still wondered, during my limited waking period, how the DPS and ultimately ALR hearings would impact this patently thumb in the nose to the MADD segment of the community, presumably her mindless supporters. I will have to confess that I am not up on current ALR law, but it would seem to me that driver's licenses are still subject to automatic suspension regardless of what Lykos might think for refusal or exceeding alcohol levels- thus, oh how does one get to work if HCDA has not coordinated with the DPS. More importantly, this was usual "Comical" generated bullshit - really, how many first offenders are in jail after their first trial setting? Again, dating myself, most first offenders that did jail time went in at midnight on Friday and left Sunday morning with essentially credit for nine days, but who were assessed three day on their plea for a final conviction. Has it changed that much, or did Lykos not recently see her name in print so this sounded good? Where are those blue haired Republican Women Club members now? Probably, drinking their martinis or manhattans (yes, they are old. old folk) waiting for her next "power speech." But yes, they have a ride home.
Calvin A. Hartmann
Anonymous said…
Murray, with all due respect , from what i know pre trial diversion will be granted in very restricted terms.IT WILL NOT BE FOR EVERY 1ST OFFENDER.THIS IS TOTALLY INCORRECT. Pre trial diversion for dwi was granted in the prior adminstration. Ask some of the people that do and have worked there. It was generally granted in limited cases. As for what the legislature did re dwi law, they did it responding to pressure from certain groups.Historically many of them were arrested themselves and in Austin they got what was called POCKET PROBATION. PRE TRIAL DIVERSION is granted easily in many counties in the state. Dwi and other cases are many times reduced to class c status so the county can keep the money rather than the state. The job of the elected DA is to seek justice and it looks to me like that is what Judge Lykos is doing.She is doing what was not always done in the past. CONCERNED CITIZEN
Anonymous said…
I have no problems with this for drug cases...but not DWI's.

What is snooks going to do when one of the people she puts on pre-trial diversion gets liquored up and causes a fatality?
Anonymous said…
The article says PTD will be granted to all first time DWI defendants and that they will not even be arrested. How is Patsy going to get the cops to release the drunks after being arrested? Also, doesn't this mean that a person could get a DWI, get PTD, get an expunction, get a DWI, get a PTD, get an expunction, and so on? There will be no such thing as a second or third offender in Harris County. It may be good for clients, but geez, I live and drive in this county!
Anonymous said…
Looks like I struck a nerve with Calvin. Sorry about that ol' fella'. Not sure what your first paragraph rant has to do with the substance of the topic, but I know your group is prone to illogic and diversion from the issues.

As for Lykos being a defense attorney, that is not at all what this new policy is about. This action is driven by budget issues, 100%. If (almost) nobody goes to jail for this, then thousands of days of jail time will be saved. Maybe each person would only have spent one or two days each, but if you multiply that by hundreds of offenders a year, you get a lot of days. That means lots of beds being taken up on a cumulative basis and extra guards and temporary beds to be hired and used. Or extra inmates housed in private jails in Louisiana. All of which cost millions of dollars a year and puts us out of stem with the Texas Commission on Jail Standards and makes us build new jails that get voted down in bond issues.

This is a budget decision, and a direct result of Lykos coming from the county offices. This indicates direct collusion with the commissioners to make policy based on dollars, which can in some instances be an unfortunate, but unavoidable, necessity.

Most first timers are one-timers though. So I think it's a good policy, as long as it does not include the kid driving through a house, and I don't believe it will.

I also disagree whole-heartedly with your stance on Watkins. He has the balls to do what Rosenthal refused to do--recognize that the system is flawed and take steps to correct past and future wrongs. Instead, Rosenthal actively destroyed DNA evidence. If that makes the Dallas County DA's office a de facto PD office, then Harris County's DA's office has historically been judge, jury and executioner. I'd rather have the Constitution respected and the rules followed if that means a DA is likely to acknowledge flaws in the system instead of ignore them. And Dallas didn't have our crime lab issue, to top it off. You're behind the curve on that issue.
Murray Newman said…
Hmm. Interesting points. Thanks for writing in, Clint. Um, I mean Anon 10:46.
Anonymous said…
I've heard of this but I never knew what it meant. Now that I do, it completely sucks. As most everyone knows, when someone gets caught driving drunk, rarely is it their first time. You do the crime, you do the time...and very little time at that, evidentally. I think the biggest punishment is having to admit to it on a job application. With PTD, the DA's office is really just saying, "Don't worry about it. Everyone does it." When are they going to start handing out needles and condoms to whores and druggies? I suppose it just a matter of time until they start condoning that as well.
Anonymous said…
Funny. I don't even know who Clint is.
Murray Newman said…
That's cool. Neither does he.

Word of warning: people write like they talk. That's how people first figured out who I was. And if it writes like Bubba Joe 6 Pack and it talks like Bubba Joe 6 Pack . . .
Anonymous said…
I'm no expert on criminal defense, but isn't there a fundamental problem with her program.

A pre-trial diversion is an agreement with the prosecution that they will drop the charges before they are ever officially brought to the court. This allows the accused to seek an expunction of the arrest and it cannot be used against the accused in any future proceeding.

The result of course is that each subsequent DWI is a "1st Offense," warranting another mandatory pre-trial diversion under her proposed program. It creates an endless cycle, unless the accused is arrested for their second before the first is expunged.

Did I miss something or is this potential scenario accurate?
jigmeister said…
How do you get around charging them when they get arrested? Who supervises and enforces the contract? Will the DA even know of the arrest? Seems like the weight of this program falls squarely on the police, unless a pretrial diversion unit is created at intake along with a social work division to oversee it. Harris County Pre-trial Diversions have never involved not charging before. This plan needs a lot of work.
Anonymous said…
Anon 10:32.

What fucking article did you read?

"...first time DWI defendants and that they will not even be arrested."

Ummm, so how do we sign them up for PTD if we never bring them in?

Great point about the ALR's, I don't think DPS will give a shit about the disposition if they didn't blow.
Anonymous said…
When are they going to start handing out needles and condoms to whores and druggies? I suppose it just a matter of time until they start condoning that as well.Uhhhh, the last legislature approved a needle exchange pilot program in San Antonio. Similar programs have been proven to reduce rates of HIV and other infections, and steer more people to treatment than incarceration, leading to lower rates of recidivism and tax paying members of society. Your buddy Abbott still decided he'd allow the Bexar County DA to prosecute because they didn't decriminalize the possession of paraphenalia by an exchange program, but what do you expect by the religious right in government. Next thing you know, they'll be trying to appoint puritanical anti-sex toy lobbyists to government positions.

AHCL: I'm telling you man, I'm not Clint. At the risk of protesting too much, however, I'll let it drop. You should be aware that there are those of us in the community who may not like Lykos much, but feel she's a damn sight better than any of the alternatives that ran, and that some of her ideas (although not original to her) are headed in the right direction. This is one of them.
Anonymous said…
Good point Anon 11:10.

It will be a DWI revolving door under this poorly thought out plan. I guess that's why we have hundreds of DWI deaths a year. Whats a couple hundred more? Maybe this is a good program for domestic violence cases too! They also take up jail space.

If this were really about jail space, this program would be used for less serious offenders who also spend the weekend in jail. Maybe a good program for some DWI offenders or for the thousands of people arrested for driving without a licenses or those caught with a joint.
jigmeister said…
There is a fundamental problem. The way Patty describes it, can't be done in the big city. She describes a diversion without charging. In Houston the police call DA intake requesting charges. This occurs either at the scene or very shortly after the offense is committed and the subject is arrested.

Patty's idea is to release drunk drivers and divert them into treatment. What do the police do? Drive them home? Call a cab? Tell them to report to Patty's office on Monday morning?

I guess the courthouse can be turned into a big drunk holding cell where the cops just drop them off, and DA's getting the drunks to sign pre-trial diversion contracts. No Defense lawyers necessary since no charges are filed. Don't hold them longer than 24 hours or charges have to be filed. Those contracts will really be enforcible.

Then who does the supervision? Remember the courts and probation officials aren't involved because there are no charges. I guess a new social work division will have to be created in the DA's office.

Come on Patty. This plan needs work. If you want to expand Pre-trial diversion to DWI's OK, but it has to be done the way pre-trial diversion has always been done. Charges first, lawyer submitting an application with realistic plan of treatment, paid for by the defendant. Signed contract with appropriate admissible confession, adequate enforcement with the judges involved to insure that the screw-ups are punished.

That plan may work if done in very limited 1st offender, no accident cases on a trial basis, especially if the police have no objections.

The basic problem Patty has is lack of experience as a trench prosecutor and doesn't even seek input from her staff who would recognize these problems. Open mouth insert foot.
Anonymous said…
Did someone "important" get hit with a dwi this week and "we" need to make it go away?
Anonymous said…
Cheer up folks. Lykos just signed her own death warrant. Do you think for a second that MADD isn't going to go berserk on her and get her happy ass thrown out of office? Also, I predict that at the end of the next legislative session, pre trial diversion will no longer be an option for DWI. MADD will see to it.
Anonymous said…
jig: She's already doing this with hundreds of juveniles. Something tells me they have a basic understanding of how it will work. My guess is, like the juveniles, they take the ride downtown where they're advised of the diversion option. I'm also betting the agreement they sign puts Inter Lock in their car at their expense, and calls for testing at a county-approved center at their expense, with reporting to be done by the defendant on a schedule contained in the agreement. Day reporting centers have been very successful in places like Smith County, and we should make use of them for more than just first DWI's. They are immensely cheaper than incarceration because you can hire a limited staff that is cheaper than guards at the jail, which is already understaffed and over crowded.

The only real question is how they can prevent the guy from losing his license, although I'm guessing that process is begun upon being charged. The cop on the scene doesn't revoke a license, just reports the DWI to the folks who get that process started.

I'm not one to give Lykos credit where it isn't due, but this ain't exactly rocket science.


Not Clint
Anonymous said…
Okay, clearly some commenters have no idea what a pre-trial diversion is. Use some common sense folks! A person has to be charged before a Judge (that's right, a Judge) can grant a pre-trial diversion. So the police will not just let first time DWI defendants go.
Anonymous said…
Lykos' action is the pendulum swinging back. MADD has gone from combatting DRUNK driving to prohibition.
Anonymous said…
It is obvious some of you have never been out of Harris County. There are 254 counties in this state and most have always done pre-trial diversions. Pat Lykos did not invent this procedure.
Anonymous said…
Pat is an ideas person, she is full of good ideas, hire people at a high salary who have no experience, promote people who support her without regard to their ability, institute new programs without investigating the execution, doing whatever the Houston Comical wants. She is full of good ideas for herself and bad ideas for the citizens of Harris County.
Anonymous said…
I like this idea. I am even more thrilled that Lykos is trying to do something, unlike others who have come before her. In many situations, the first arrest or first encounter with law enforcement, and, particularly, jail, causes some people to change and not look back at their old ways. I think those people would benefit from the experience without the record, and deserve to have it as an option. I'm liking Lykos more and more each day. I don't necessarily agree with all of her plans, but this one certainly has potential.
Banjo Jones said…
Like your blog, but get your it's and its straight. Very annoying.
supporter for pat said…
I see donna goode lost perry wooten's case because she struck all of the black jurors for no reason. Guess Pat is giving a fair shake to everyone.(Now thats a fair district attorney)something you cant relate to murray.it's seems you have to let all people serve as jurors not just white people.As to convict at all costs that was donna goode role under chucks regime. Oh yes donna did strike all the blacks on wooten's case and rumor has it, chuck thought it was funny....
Murray Newman said…
Mr. Duncan,
You just have absolutely no idea how much I'm kicking myself for dumbass ways right now. Geez, if I'd only known that I would be blowing a chance to sit down and talk history with Lykos, I never would have started this blog. Oh, the humanity . . .

Supporter for Pat,
Thank you for giving us yet another enlightened insight into the internal workings of a Lykos' supporter's mind.
Or lack thereof.
Anonymous said…
I am a prosecutor at the office and am okay with this change; I think it is long overdue. However, I am not in favor of granting PTD to someone who does not blow. I also wonder how many people are going to want PTD if one of the conditions (as mentioned in the Chronicle) is that you have to use an interlock on your car -- it is expensive and you may as well just have a scarlet DWI on your forehead.
Anonymous said…
Everyone gets one free DWI? Woo Hoo! Brink on the drink!
Nice way to protect the community, Pat.
Anonymous said…
If this has to do with jail crowding, please show me the throngs of people who actually spend time in jail on a first DWI? Except for the nogotties, 90% of everyone else gets 3/2 $$$ or probation. Ask yourself how many subsequent DWI you see that have been on probation already? They supposedly got their "treatment" too. This nut on the Hardy toll road had a DWI less than 3 years ago...and got probation. Could you imagine if she had gotten her PTD and could take the stand and say that she had never ben convicted of DWI before?
But my real question is if the arrest is expunged after a PTD, will we ever see it in JIMS later?
People know I am a DA, and no one has told me they like this idea. To a person, anyone who has said anything has done so with a "what in the hell is she thinking" tone.
Anonymous said…
Except for the nogotties,That's pretty much everyone in jail who didn't have bond denied, which is pretty much everyone.

Ask yourself how many subsequent DWI you see that have been on probation already?Wow, you are good at this. Yes, everyone there on a subsequent DWI had a first DWI. You're a quick one.
Lushy McLushberger said…
As both a binge-drinker and a barfly, I for one am thrilled about this. I'm usually pretty anxious driving home after happy hour and such. And not because I'm a danger or anything like that. But because A pricey DWI is one thing I don't want to deal with. But now, hey, I won't have to. I'd be the absolute best candidate for a pre-trial diversion. "Hey waiter! I think I will have that 5th vodka martini after all! Why not?" Score one for the drunks!
Anonymous said…
If the legislature prohibits deferred adjudication for DWI, wouldn't this pre-trial program be circumventing legislative intent?
Kinda like legislating from the bench, or the 6th floor, as the case may be.
Anonymous said…
Seems ironic that, in the same week that Lykos announces a free pass to drunk drivers, the Legislature passed SB 328, expanding the circumstances under which officer may demand a warrantless sample of breath or blood from a drunk driver. Lykos and the Leg are headed in opposite directions.

In addition, the Leg refused to pass a bill that would have restored deferred adjudication for DWI. Lawmakers clearly want prosecutors to prosecute DWI cases and make a record of drunk driving.

By adopting deferred prosecution, Lykos has put up the white flag, signaling to those that drink: you get one free pass, be sure to use it. It's a bad idea by a terrible policymaker.
Anonymous said…
Lykos and the Leg are headed in opposite directions.Are you sure you want the Texas Legislature on your side? That's the group they only let meet every other year so they don't mess things up every single year.
Anonymous said…
Couple questions and comments:

Will these people even need lawyers to get their Pre-Trial Diversion or is simply being arrested enough to qualify? Just sign on the X...........

If they do need lawyers you can be certain no one will by paying an exorbitant fee to a "DWI lawyer". Why pay $10-$15k for Trichter when a $100 appearance fee will be enough to sign up for the PTD they are entitled to?

When does the guy who hit the officer's vehicle last week get to sign up for his PTD? He didn't actually hit the officer, someone else did. Is his crime victimless and worth a PTD?

On the plus side, misdemeanor prosecutors can finally focus on cases that really matter like possession of marijuana or driving while license suspended. Those stupid DWI's were just clogging up the dockets!
Joel Rosenberg said…
I dunno. Seems to me that it might be good policy for a prosecutor to be able to let a guy (or guyette) slide on that sort of thing. Particularly given, as you suggest, that the prohibition against the use of common sense and prosecutorial discretion was a reaction to the MADD madness . . .

. . . even if it's happening at the hands of Pat Lykos. If the Harris County voters disagree, well . . . you do have elections there, don't you?
Murray Newman said…
I don't mind Pre-Trial Diviersion as an available remedy on some cases, but that's not what Lykos says in the article. She is talking about the wholesale use of it on ALL first time DWI cases. It brings more problems to the table than she could have imagined. And we are unfortunately a damn long ways away from the next election.
Anonymous said…
Just a couple of observations concerning this ill-advised pretrial diversion policy for first time DWI offenders:

1) The first DWI arrest is rarely the first time the offender has driven drunk. It was simply the first time they were CAUGHT. In every respect, these offenders are endanging the lives of truly innocent citizens each time they choose to drive while their mental or physical faculties are impaired.

2) The second arrest for DWI following a successfully completed pretrial diversion will have to be treated as a FIRST OFFENSE or Class B Misdemeanor DWI. A second conviction, which should really be a third, will only be a Class A Misdemeanor, and so on. The Legislature has established a very well reasoned and workable enhancement process for repeat DWI offenders. This new pretrial diversion program will totally screw that process up not only for Harris County, but every other county in the state which should be able to rely on the intent of the Legislature being followed as it relates to the prosecution of repeat DWI offenders.

As an elected prosecuting attorney in a surrounding county, I can state unequivocally that Lykos will not score any points with other prosecuting attorneys throughout the state who swear to uphold and enforce the law as given to us by the folks in the pink granite building over in Austin.
Anonymous said…
Pat "I Don't Have a Clue" Lykos apparently wants to change Harris County from a safe haven for illegals to a safe haven for drunk drivers. Neither is within her authority.
What happens when an illegal is "arrested" under Patsy's DWI amnesty program?
Anonymous said…
Just a couple of thoughts....

If one were inclined towards conspiracy theories, one might opine that this is a brilliant move. Run this policy for a couple of years and all the DWI specialists will be out of business in short order, then Draconian measures will be re-instated. I'm not quite willing to go that far, but I do think it makes for interesting issues with we defense attorney's trying to sell what we can do for our clients. First time DWI offenders are often among the most affluent (i.e. most able to afford good representation). If you can get what is essentially a dismissal from a $200 lawyer, why look further?

Second, I have some contention with the premise that if the person fails at pre-trial diversion, the case is simply re-opened and the prosecutor is at a disadvantage as the case is no quite old (ref. Anon 7:21) Back when I was at the office (insert old f*rt joke here) before you could recieve pre-trial diversion, you had to sign a judicial confession to the offense prior to the deal being put in place. In other words, bust the deal, admit the confession, case over. (yeah, I know, involuntary plea, involuntary statement. Hey, there's always SOMETHING to litigate).

Finally, I always was a little ticked at all the annonymous comments. I didn't realize there were so many steps to getting "recognized" as it were on the blog. Therefore, this will post as "annonymous", but for the record, I'm

Jeff Hale
Miss. Marie said…
If you ever get arrested for DWI(each time will show up as a arrest) even if you do the pre-trial thing your arrest will still be on your record. You cannot not expunge anything from your record unless the case had a error or the court was at fault.
So if you got another DWI the court would know.

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