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deferred adjudication

Anderson’s DWI proposal

You may recall that former Harris County DA Pat Lykos’ DIVERT program for DWI offenders was a major point of contention in the GOP primary fight that was eventually won by new DA Mike Anderson. (If you don’t recall, see here and here for some background, or review the interviews I did with Lykos and Anderson.) Among other things, Anderson claimed that the DIVERT program was a subversion of existing state law, as DIVERT was intended to serve as a form of deferred adjudication for DWI offenses, when deferred adjudication didn’t exist as an option for DWI. Anderson is now backing a legislative proposal to create a deferred adjudication option for DWI offenses.

DA Mike Anderson

Anderson said he expects his office to lobby for deferred adjudication for a first-time DWI conviction, which may seem like a policy reversal to those who followed last year’s district attorney race.

Deferred adjudication is a form of probation that allows suspects who successfully complete probation to go on with their lives without a criminal conviction on their record.

During the Republican primary campaign, Anderson attacked incumbent Pat Lykos for her DIVERT program, which did the same thing by allowing for probation for a first driving-while-intoxicated offense.

“It’s a really good alternative to DIVERT,” Anderson said of his position. “In DIVERT, the person was never put on deferred adjudication. It was just ‘invented’ at the District Attorney’s Office.”

During the campaign, Anderson criticized Lykos by saying she changed the legislative intent behind banning deferred adjudication for DWI convictions.

Anderson’s proposed change would allow first-time convictions for DWI to be erased from a defendant’s record, but, unlike DIVERT, prosecutors would be able to tell juries about the DWI if there are subsequent intoxication-related offenses.

The proposed change is modeled on domestic violence laws, which can be expunged for public records, but still exist in court files and can be used to upgrade future domestic violence charges.

I’m not a lawyer, but Mark Bennett is, and he has a quarrel with the Chron’s characterization of “deferred adjudication”.

“Without a criminal conviction on their record” is technically true, but misleading. Lawyers who describe deferred adjudication that way to their clients and judges who do so to defendants are doing them a disservice. A deferred-adjudication probation can, in some cases and at the trial court’s discretion, be sealed from public view with an order of nondisclosure (read the statute), but unless and until the record is sealed there remains a public record of the charge, the guilty plea, and the probation. Employers and landlords and others who use background checks treat deferred-adjudication probation the same as a conviction. When a defendant is told, “you won’t have a criminal conviction on your record” he hears, “you won’t have a record.”

“[E]rased from a defendant’s record” is untrue. At best a deferred-adjudication probation for DWI will, at its conclusion, be eligible for nondisclosure at the trial court’s discretion.

[…]

“[D]omestic violence laws, which can be expunged for public records, but still exist in court files and can be used to upgrade future domestic violence charges” is (even apart from the wandering subject) thoroughly wrong.

A deferred-adjudication probation for anything greater than a class-C (fine-only) misdemeanor cannot be expunged. An acquitted or dismissed case can be expunged. An expunged case cannot be used to upgrade future charges or for any other purpose.

A deferred-adjudication probation for a more serious misdemeanor or a felony may be subject to nondisclosure (not expunction), but family-violence cases are explicitly excluded. So if the change is modeled on domestic-violence laws, then more than likely deferred-adjudication probation for DWI will be coupled with an amendment to the nondisclosure law excluding DWI cases from the nondisclosure statute (so that someone with a DWI deferred will have a public record of it forever).

The Chron doesn’t say what the bill number is for Anderson’s proposal or who the author is (assuming a bill has been filed yet; it is certainly possible this is still in the proposal stages), so this is all we know about it. I’d sure like to see Mark’s concerns be addressed before any such legislation gets passed.

One person’s experience with deferred adjudication for DWI

After I posted about the bill to allow deferred adjudication for DWI, I received the following email from a reader, who gave me permission to publish it.

Deferred adjudication (D.A) ….My brother had it because of a DWI in the early 1990s and failed miserably through it. The conditions of D.A. are so onerous that it’s easy to trip up. One time he had a substance abuse relapse, and missed going to the parole officer because he knew his drug test would not be clean (and didn’t pay his fine for the month either). As a result, the Harris County parole officer issued a warrant for his arrest which eventually sent him to prison for 2 years. I tried to intervene and suggest a way that he might turn himself in voluntarily and pay a fine in exchange for the 1 missed visit. But the parole officer said, once the warrant was issued, there was no rescinding it. In other words, there was no incentive for my brother to turn himself in, so he found a retail management job and worked there for a year. For a year, he supported his family without any further drug relapses until the police finally caught up with him (they always do because they can find a work address through your IRS/W2 information). Ironically, despite the fact that my brother was working legitimately and raising a family without drug or alchohol relapses, after he was re-arrested for missing the parole visit, the state sued him for child support even though he was still married. Apparently when he was locked up, his wife applied for food stamps and CHIP for the children. The State of Texas wanted that money back. Of course, he eventually had to explain to the court that the only reason he couldn’t support the children was because the state had locked him up in the first place.

During those two years when he was in prison for breaking the terms of his deferred adjudication, the mother and her children also went basically homeless, having to double up with various family members.

This year my brother had another DWI (after one he had 14 years ago). Due to some fluke in the law, he ended up being classified as a repeat offender and rather than take 5 or 10 years of hard time, he plea bargained for 1 month jail time + 6 months rehab + probation. That was considered “lenient” in Texas.

The result: he lost his well-paying management job, and his wife and 3 young kids lost their house as a result. For the last 2 months, they are basically homeless (now living temporarily with a friend and for a month with my mom). The oldest girl is in school but can’t get HISD to give her a ride to school (that may be resolved by January, I don’t know). (That’s why your other post about homeless children rang true to me). My mother and my brother’s siblings are now having to support his family while the wife looks for a job and tries to find more permanent housing. We are very gloomy about his chances of getting a job that pays as well as the one he had before the release.

My brother is borderline pathological, he lies sometimes and occasionally drinks too much (though no drugs anymore). But he’s been a law abiding citizen for the past 3 years and a good dad. His track record of following all the procedures of parole/probation/D.A. has been poor; it almost seems as though he is being imprisoned not for DWI or drugs but simply failure to pay his monthly fines or meet his parole officer. In theory it sounds reasonable to require that a person see his parole officer regularly, but he has always been busy driving kids to doctor’s appointments and school events (not to mention going to work). That doesn’t include the AA meetings he is usually required to attend (which eventually he stops doing ). Also, we all have strong feelings about the earlier decision to take deferred adjudication. Maybe it would be helpful for some people, but there are so many conditions attached that it entangles you permanently in the system. My brother just kept making minor infractions (not paying the monthly fine, skipping a meeting with the parole officer, not going to AA, etc). It was probably my brother’s worst decision to accept that; in retrospect, he should have just done the jail time and get it over with.

Off-topic: why can’t breathalizer ignition systems be mandatory on all cars? After the 2nd DWI they put a breathalizer on his car, and I thought that would be it. But Texas wanted to lock him up as well. I understand the need to prevent drunk people from getting in front of the wheel, but isn’t it enough to cripple the individual’s car until he takes a breathalizer test?

As my brother says, he knows what incarceration is about. He has been there before. He feels genuine remorse for the trouble he has caused. He is used to having to start over again after prison. But each career interruption lowers his income potential and disrupts the life of his wife and children. It ends up costing the state of Texas more money, and it has cost his family lots of money and heartache.

This is a nonviolent case which never needed to require prison. Even deferred adjudication can be a disaster if the terms are so onerous as to make messups inevitable. The problem with parole and probation is that usually you don’t have the right to contest the charge, and the panels can act arbitrarily and has full discretion. Once my brother signed up for D.A./parole/probation, he was completely at the mercy of the penal system whose solution for everything seems to be imprisonment.

Obviously, no one person’s case is representative of everyone, but the issues cited about how onerous probation can be are well known. Seeing it personalized like that was very compelling, and I thought it was a story that was worth sharing. I am very thankful to the reader who sent it to me and allowed me to publish it.

Deferred adjudication for DWI

There are thousands of drunk driving cases on district court dockets around the state. To try and help get them cleared out, a bill has been filed to allow first time offenders to get deferred adjudication.

First-time offenders could be acquitted of the offense if they complete supervision and treatment. If the offense were repeated, it would become grounds to boost future punishments.

“Generally we do not support deferred adjudication bills, but we are going to support this one,” said Bill Lewis, public policy liaison for the Irving-based nonprofit group MADD. “Right now, we are hearing that many cases are not getting prosecuted for DWI but for a bogus charge. We hope the practice of reducing charges will be reduced if this bill does indeed pass.”

The proposal, filed by Rep. Todd Smith, R-Euless, marks a shift away from a long-standing notion in Texas that all drunken drivers should face fines and jail time. Deferred adjudication for such offenses was abolished in the state in the mid-1980s when opponents, including MADD, argued that prosecuting offices and judges were accepting the form of probation for repeat offenders.

Supporters say the plan could ease court backlogs by routing cases out of courtrooms, give prosecutors a new negotiating tool and remove the threat of jail that makes some first-timers refuse guilty pleas in DWI cases.

By the time a House legislative committee held a hearing on the issue in August, more than 122,000 misdemeanor DWI cases were pending in state district courts. Prosecutors argue they are too limited in the options they can offer first-time offenders.

“Our alternatives that we can offer have diminished such that our bargaining positions have weakened, and cases are backing up,” testified Richard Alpert, a 24-year Tarrant County prosecutor who has become a key figure in the fight against drunken driving.

The bill in question appears to be HB 189. My initial impression on reading this story was that it sounded like a good idea. But I’m not a defense attorney, and no one from the criminal defense bar was quoted reacting to Rep. Smith’s bill. Someone should have called Mark Bennett for an opinion, because that would have significantly changed the way this was presented:

What would deferred-adjudication probation add to defendants’ options, either in Harris County or elsewhere?

A deferred-adjudication probation is not, as the Chronicle article would have it, an acquittal. It cannot be expunged. In most non-DWI cases, deferred-adjudication probation has two advantages over straight probation: 1) it is not, for purposes of Texas criminal law (but is, for purposes of Federal sentencing and immigration law, among other things), a conviction; and 2) it can be sealed from public view with a petition for nondisclosure at some point after the probation is successfully completed.

Nondisclosure is important because of the opprobrium that attaches to many criminal convictions. Try renting an apartment with a felony drug offense on your public record; try getting hired when the boss finds out about your misdemeanor theft deferred. While deferred is not technically a conviction, there is nothing to stop private individuals from treating it as one, so they do.

But nondisclosure would be less important in DWI cases because the stigma of a DWI conviction is not nearly that of a crime involving dishonesty, violence, or even drugs. It would not be unimportant—there might be some employers reluctant to hire (or eager to fire) employees with DWI—but I’m betting that if deferred adjudication becomes available for DWI, nondisclosure will be unavailable for DWI (as it is for sex-offender-registration and family violence offenses, among others). So deferred adjudication will not provide an advantage to DWI defendants over straight probation.

What about the fact that a DWI deferred would not, for purposes of Texas criminal law, be a conviction? The only real effect of a deferred not being a conviction is that it is not available for enhancement, as a conviction would be, if the accused gets charged with something else. The supporters of DWI deferred have a plan to wire around that: “[I]f they do reoffend, it can be used to enhance their punishment,” says Tarrant County prosecutor David Alpert.

(Note: Mark linked to the Chron reprint of this story.) Doesn’t sound so appealing now, does it? Well, it likely would help clear out that backlog, but not in a way that is helpful to anyone facing a DWI charge. I think this bill has enough support from the usual suspects that it has a decent chance of passing, so it’s worth keeping an eye on it. Grits, who reacts favorably to the story, has more.