The Harris County District Attorney’s new driving while intoxicated diversion program appears to have some problems.
Under the new program, those accused of a first-time DWI will be offered the diversion program or 30 days in jail and a $750 fine. Defendants who do not want either choice can take their cases to the judge or to trial.
Currently, some first-time DWI defendants are given the option of pleading guilty, paying a $100 fine and taking three days in jail, plus two days, which they do not have to serve if they behaved during the first three.
Known around the courthouse as a 3/2/$100, the deal will not be offered after the diversion program begins.
Those who take the diversion program will plead guilty and get a maximum of two years probation, including treatment and community service. If they successfully complete the probation, their records will not show a conviction for driving while intoxicated. If they fail, they will be sentenced to at least 30 days in jail under a contract signed when they take the deal.
JoAnne Musick, president of the Harris County Criminal Lawyers Association, said the program is coercive and appears to thwart the intent of the Legislature, which prohibits deferred adjudication for DWI offenses.
“It could have been a good program. It could have been an exceptional opportunity for people who have made a mistake and driven when they shouldn’t have,” Musick said. “At the same time, I think it’s very poor planning and execution on how to conduct the program.”
She said the plan is coercive because defendants have to waive their rights, sign a contract and plead guilty. She said defendants could be sent to jail at the smallest amount of evidence of a mistake or if they fail to fulfill every requirement.
Problem One, as Musick points out, is that this looks an awful lot like a deferred adjudication program, which the Lege outlawed for DWI infractions back in the 90s. Problem Two, as noted later in the story, is that it’s not clear this will actually reduce the jail population, which would seem to be the point and which constitutes a deal-breaker for me. Remember, a lot of defendants prefer to choose jail time over probation now because the probation requirements are so onerous. Problems Three and higher are enumerated by Grits, Mark Bennett, Paul Kennedy, and Murray Newman; I’ll leave it to you to see what they have to say. I’m thinking this one needs some more time on the drawing board.