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.
Ive met and discussed with da mike anderson a number of times pertaining to issues surronding this situation and the former da pat,from what i gather da anderson is trying to take a program that is “far reaching from the legislatures original intention”,which is what pat did and bring it within the law,i think mike anderson has the right direction with this issue and chron.com and myself should back him 100%.In other words-a dwi offense is a criminal offense within a county and a state,i think both involved in the rehabilitation of the offender has merit.
respectfully submitted
joshua ben bullard
I guess it is too early for anything to have happened on this. My daughter got a first time DWI in October and got approved for DiVERT. She had the device on her car, has been going to counseling and AA. She went through the inverview and lengthy questionnaire and was approved. When she went to court in January, she was told the DIVERT program was over and that the DA would look at the cases on a case by case basis. She is so young to have a conviction on her record, and I think this program would be so good for her. She is in college and works 3 days a week plus side jobs. Very worried about what we will find out this week when she goes back to court. Would love to hear any updates on this new program.