Friday, August 28, 2009

DIVERT - the early fallout - complete BS

So, you've read about the DIVERT program as written by others here in Harris County. I won't go into great detail about the program - suffice it to say that presumably DA Pat Lykos & her entourage have come up with this program to "help" first offenders who find themselves charged with DWI. I'll refer you to the blawgs written by Troy McKinney (very detailed), Murray Newman, Paul Kennedy, probably Mark Bennett - and likely others to find out their thoughts on the problems. But today, I want to tell you what I face in two cases.

Case one - client had an issue with drugs - while on bond for PCS (possession of a controlled substance), he is arrested for DWI. It is his second one. He finally "gets it" & puts himself in locked down rehab in a far away state for 6 months. SIX MONTHS! He gets out - clean & sober. He has gained weight & looks great. Well, already because it is his second - no drivers license for refusing the breath test. But, you see, driving is a privilege - not a right. Did you know that?! It is a privilege that can be taken away with little protection. But that is a different story.

I ask for pre-trial diversion on the felony - no because there is nothing exceptional about him or the situation. (I disagree - I have NEVER had a client put himself in rehab because he WANTS to be rehabilitated before he was left with a choice of rehab or jail.) But, he is offered deferred adjudication. (Well - another story) He plans on taking deferred.

On to the misdemeanor. This story has nothing to do with what may or may not happen with the misdemeanor DWI. This story is about the DIVERT program - which fails to do what the legislature has wisely done - leave sentencing to be decided on a case-by-case basis. Frankly, I cannot think of a legal argument against the policies, but it just is ridiculous. Let me illustrate.

This client, who was in rehab for 6 months, is offered 90 days. Well, I'm advised that I can negotiate - down to 75 days! That is the minimum. Let's get this straight - he did 180 days flat in rehab & is now clean & sober. His license will shortly come up for reinstatement but the rules say he gets 75 days (or set it for a trial - maybe a plea before the judge) & his license will get suspended AGAIN for 2 likely 2 years.

(Think this way - no drivy, no worky, no schooly, no nothing. What's the incentive to better oneself? What the hell?)

But, here's an even better example. Client gets arrested for a plain vanilla DWI - speeding by 20 miles over but nothing particularly bad about the tests, etc. No accident & no breath test. He will be suspended for 6 months for refusing the breath test. BUT, guess what the DIVERT program offer will be for this guy? Well, he has a prior - 25 YEARS AGO - when he was 21 so under the law & rules of DA Lykos, he is a 2nd offender - no exceptions. What offer have they made to this man? The required minimum of 60 days. SIXTY DAYS!!!! (In Harris County, 60 days means 30 days flat time.)

Seriously - this is ridiculous. It is not the assistants' fault. Their hands are tied to this offer. I may be able to go to the judge without a recommendation - if they can waive a jury. Or, I have to waste time & tax dollar because I can tell you this - I will strongly urge this client NOT to take 60 days. THIS is the crap of which these ridiculous rules are made of. These are your tax dollars being WASTED! This man should get a normal probation. They got his attention, and he is going to lose his driver's license. But 30 flat days in the jail - with rapists, robbers, murderers?!


  1. I don't believe in the zero tolerance stance that the government tends to take on everything. There should be guide lines in place, but so many cases have so many varibles in them. People do make mistakes and some people will learn from them and some people don't. The 6 months in Rehab is a very long time in rehab, so if he is showing progress why lock him up?

    If a knuckle head has not learned, then Yes lock them up and at least my loved ones will be safe from their stupid decision making abilities for 75 days or what ever the sentence maybe.

    Justice needs to be fair to all involved, and that is why, we need Judges and juries to decide punishment. Do I agree with what they are given 100% of the time? No, but at least a human, looked at the factors involved in the case.

  2. Thanks Texas Ghostrider - we are in agreement on both cases. While I don't think most driving while intoxicated cases are a mistake - people know they have been drinking & should not drive (I need no smart alec comments from friends - most of us have been there/done that - not the point). But, I think that the full range of punishment should be open to the prosecutor whose job it is to work out the cases - let them consider the surrounding circumstances. (The loss of the license regardless of the outcome of the DWI is big for most people.) The guy with a prior when he was 21 - 25 years ago - is now facing 60 days in jail. Can one imagine their friends sitting in jail like that? They don't segregate them by crime, either. He is scare to death now. It is certainly a great argument for jury nullification - don't find him guilty because what the State wants to do is torture an otherwise great person & waste our tax dollars! He has learned the lesson - for real. He almost started crying in court when I told him the offer - and he isn't a whimp. He's just like us - middle aged & afraid of the scary ones.

    I very much appreciate your comments.

    Anyone else dealing with this?


I appreciate comments but you must include your name to be posted. If you want to e-mail just me, do so - don't comment here. Any posting or comments made here are not intended to be legal advice. If you have a situation that does or may involve criminal law, seek the advice of an attorney via telephone or in-person meeting. I am not responsible for the contents of comments.