Pretrial Diversion for DWI

In Harris County, Texas, between January 1, 2009 and May 31, 2009:

  • 3,166 DWI defendants pled guilty or no contest.
  • 1 defendant pled not guilty to the judge and was convicted.
  • 38 people pled not guilty to juries and were convicted.
  • 22 people pled not guilty to juries and were acquitted by jury verdict.
  • 6 people pled not guilty to juries and were acquitted by directed verdict.
  • 646 cases were dismissed.

Of those who went to trial and pled [edit: not] guilty, 28 out of 67—42%—were acquitted.
Of the 3,879 cases that were resolved, 674 were resolved with dismissals or acquittals.

Put more starkly, of the 713 people charged whose cases were resolved in the first five months of this year after they refused to plead guilty, 94.5% won.

This is not to beat up on the Lykos DA’s Office: in 2007, 1,544 people charged with DWI did not plead guilty, and 1,435 of them—92.9%—won their cases. It is also not a situation unique to DWI: 99.5% of people whose non-DWI misdemeanor cases in Harris County were resolved in the first five months of 2009 after they refused to plead guilty won their cases—acquitted or dismissed. In non-DWI cases, however,

So if you’re the elected DA and you want your troops to dismiss (or lose) fewer DWI cases, what do you do?

Some counties offer defendants pleas to non-DWI charges—”obstructing a roadway” or “reckless driving”—instead of DWI. Harris County has long had a policy against doing so; obstructing a roadway and reckless driving are not technically lesser-included offenses of DWI.

Pat Lykos has proposed offering people charged with DWI (at least their first DWI, which is about 80% of DWI cases) pretrial diversion, in a plan that she announced May 28th. (She now claims that the news, which she broke, broke a bit prematurely . . . hmm, what was happening on May 28th that Judge Lykos might have wanted to distract the public from? Oh, yes, the Office was threatening a criminal-defense lawyer with prosecution to gain advantage in a capital murder trial.)

Paul Kennedy has written about the new proposed policy four times. Murray Newman has written about it three times.

One argument against the potential policy is that it’s “legislating from the bench” (it’s an argument I heard from prosecutors before Murray). The lege didn’t allow deferred adjudication for DWI, the reasoning goes, so a prosecutor does something wrong by offering pretrial diversion. But a pretrial diversion is a controlled dismissal, and the prosecutor’s unquestioned authority to dismiss a DWI case includes the power to put conditions on that dismissal.

Lykos admits that the plan’s details need work, and some objections to the proposed plan might be resolved (will it apply to all first offenders? will cases be expungeable?) when those details are worked out.

Some lawyers with practices that depend on DWI cases are understandably nervous about the effect that the plan might have on their livelihoods. If the county starts going squishy on DWI cases, the value of a lawyer in such cases decreases (though, as Paul points out, having a lawyer will still be important).

If pretrial diversions are not expungeable (for example, if defendants have to agree that they won’t seek expunction), a person could have multiple first-offense DWI diversions.

The reasoning of people who don’t plead guilty is that if they plead guilty to DWI, they will be convicted, while if they don’t plead guilty they have a chance (94.5% on average) of winning so that they can get their cases expunged, and if they don’t win they will get probation if they want it. If DWI pretrial diversion is just another form of deferred adjudication—a two-year probation that technically includes no conviction, but that remains on your record forever—those people who now refuse to plead guilty will rationally continue to do so.

Pretrial diversion is better than a conviction, so those who now plead guilty will rationally and happily take pretrial diversion instead regardless of the permanence of the record. If the object of the exercise is to convert some of the
dismissed-or-acquitted cases to pretrial diversions instead, though,
then pretrial diversions will have to be expungeable.

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0 responses to “Pretrial Diversion for DWI”

  1. Mark,

    Good post, though I assume you meant to say “Of those who went to trial and pled [not] guilty, 28 out of 67—42%—were acquitted.”

    And Remy — you have a strange way of asking for contact. While I admit it’s none of my business, I hope you had a good reason to ask for a call publicly. Hell, Mark’s always responded to the e-mails I’ve sent him.

    Be well.

  2. This does not sound to me like “failure” on the DA’s part. The huge number of people who plead guilty MUST mean that he is successfully making most of them “offers they can’t refuse” during plea bargaining.

    I’ll bet if you told us the average (or typical) sentence given to those who plead guilty, and the average given to those who are convicted at trial, the latter would be much greater. In which case, his low win rate at trial is easily explained: the only people going to trial are those who have other reasons (for instance, witnesses) to believe they’ll win.

    • I don’t think it’s a failure on the DA’s part, but the DWI task force might disagree.

      In the case of first DWIs, the typical sentence given to those who plead guilty is the same as the typical sentence given to those who are convicted at trial.

      The fact that 94.5% of people who don’t plead guilty wind up winning suggests a failure on the part of the defense bar, but that’s a post for another day.

  3. I am not sure having a case dismissed is “winning.” Shitty cases, and sometimes areally good cases, get dismissed for a multitude of reasons. No DA who dismisses a cases considers it a “loss” unless it is already at a point in trial where there’s no turning back.

      • The defendants count it as a win, but so do the prosecutors. If I dismiss a case because there is insufficient evidence of guilt (or no evidence!) or in the interest of justice, everyone wins. I can’t watch every DWI video before the first setting, but if a case is evaluated and dismissed, I did my job, just as I do when I try a case.

  4. Mark, interesting post. I think there is a typo in the first sentence after the bullet points. The word “not” appears to be intended to appear before the word “guilty.”

  5. At one of the first DWI seminars I attended I remember one attorney standing up and saying “Friends don’t let friends plead guilty to DWI.”

    I have often counseled clients charged with a first DWI that if they plead guilty there’s a 100% chance of a conviction but if we try the case we have a better than 50-50 chance of walking away from it.

    The statistics bear that out in spades.

  6. Mark, what is your take on the practice of pleading to an obstruction or similar charge if it is available? One county I practice in will often offer an obstruction to first time DWI offenders, assuming they didn’t run someone over. The clients often like that option since they avoid the DWI conviction, surcharges, insurance premiums, etc.

    I sometimes see it as a win and a loss. It’s a win since there’s no DWI conviction, but they still have a conviction and probation, which is a loss of sorts. But I suppose it’s easy for me to wonder about their choices when I’m not the one facing a DWI on my record.

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