Getting Out of DIVERT?


Back in July, before the Harris County DA’s DWI DIVERT program went into effect, I noted:

There will be lots of high-volume lawyers who see this as the best thing since deferred adjudication for resolving cases without actually, y’know, trying, but I don’t see myself encouraging clients to sign it unless the State has them dead to rights and they want to be at the mercy of the Harris County DA’s Office for another two years.

So what does a defendant do whose lawyer has encouraged him to sign for the DIVERT program? Tyler Flood reports:

I got a call from a gentleman who says he is on the DIVERT program and wants out. Says his lawyer never went over any of the paperwork with him and basically told him he had to take the DIVERT program. He told me that he already told the probation officer he is not going to obey any of the requirements and he wants to be off.

So Tyler’s potential client is at the mercy of the DA’s Office; he is refusing to comply with the conditions that he agreed to at his lawyer’s urging.

We know that he could be convicted of DWI, have to do 30 days in jail, and have his license suspended. Is that the worst that could happen? Can Tyler get him out of the DIVERT program without even those consequences? We’ll stay tuned to find out.

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0 responses to “Getting Out of DIVERT?”

  1. From this amateur’s POV… isn’t it a little late for that? As I understand it, when somebody enters the DIVERT program, they’ve pleaded guilty, and agreed to a set of conditions in return for not going to jail. Not saying it’s a good choice, but is there really, in practice, a way out, after signing up?

  2. I’m no appellate guru: but one could wait for the conviction to become final and then appeal it. Coerced Plea comes to mind. Voluntariness of the plea can be raised long after other issues are dead. If his lawyer in fact advised that he had no other choices; he may have a shot. Its certainly something to watch for.

  3. A Motion to Withdraw Plea, or Motion for New Trial, based on involuntariness, would be better than waiting for the conviction to become final. However, it will come down to a swearing match: will the lawyer admit he didn’t carefully explain every detail, or will he claim the client just changed his mind after the fact?

    Lawyers who would manipulate their client into accepting an involuntary plea can hardly be trusted to tell the truth following a MTN or Motion to Withdraw Plea. And if the judge isn’t convinced by a preponderance of the evidence that the plea was uninformed, all efforts to get out of the plea will fail.

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