Sustained!: Harris County DWI Diversion Program: Forced Rehabilitation? Or Rehabilitation With An Incentive?

Sunday, August 2, 2009

Harris County DWI Diversion Program: Forced Rehabilitation? Or Rehabilitation With An Incentive?

Through my practice, I know people who struggle with different forms of addictions. On a weekly basis, I interact closely with substance abusers, sex addicts and people with other self-destructive compulsions. Many do not think they need treatment. Some of them have allowed their addictions and compulsions to destroy their careers, relationships and families. Yet they are adamant that they do not have a problem. They do not need any help. Courts have forced treatment on them. And with a great degree of predictability, the treatment has routinely failed. Professionals skilled in substance abuse treatment widely acknowledge that a person will not accept treatment until that person is ready to do so. Some people need to hit "rock bottom" before they are ready to respond to treatment.

Texas leads the nation in alcohol related traffic fatalities. And according to the Harris County District Attorney's Office, Harris County leads the state in alcohol related traffic fatalities. Knowing that the county is a leader in this category does not make me feel safe on the road driving with my family. I am a strident proponent of civil liberties. But I am not a proponent of any man or woman abusing their civil liberties at the expense of innocent people. Anyone concerned with safety would recognize that things need to change.

After August 1, 2009, the Harris County District Attorney's Office will begin administering a new DWI diversion program which the DA argues will curb recidivism and make our streets safer. Some defense lawyers, upset about not being invited to the table when the DA crafted the program, argue that the program is coercive and illegal. However, despite the rhetoric being spouted about the program, it appears to be a marked improvement above the status quo. Although not perfect, it is a needed change.

Defense lawyers correctly argue that the program is coercive. As part of the program, the DA is offering a first time offender a plea bargain deal where a defendant can accept the program or accept 30 days in jail. The program will require first-time DWI defendants to participate in substance abuse treatment and community service. All will be required to install a vehicle interlock device on their vehicles (a device which will check a driver for the presence of alcohol before allowing the vehicle on which it is installed to start). And all will receive licenses that will allow them to drive to and from work and to and from treatment. It will also require defendants to waive their rights to a jury trial. Upon successful completion of the program, a defendant will be able to avoid a conviction on their record and will have the case dismissed. Before this program, defendants could resolve their cases by paying a fine with no additional jail time and no probation (and consequently, no treatment).

Defense lawyers have criticized the program by asserting that the program impinges on a defendant's constitutional rights because it coerces them into the program. But all prosecutions impinge on a defendant's constitutional rights. All plea bargaining is inherently coercive (a defendant enters a plea and waives his right to trial to avoid a harsher sentence at trial). It is totally legitimate plea bargaining for a DA to offer a plea deal without any other option besides trial. The DA could offer the program without the 30 day offer and tell defendants that they could take the deal (the program) or go to trial and face jail time. The obvious effect will be that first-time DWI defendants in Harris County will either opt for the program or opt for trial. The program is no more coercive than plea bargains where the DA makes a firm offer.

But the question that our defense bar seems to miss is the age old question in treatment for substance abusers: Will a system that forces a person who may not be ready for change into treatment, be successful in curbing recidivism? Time will only tell. But on its face, this program is different than current attempts at rehabilitation in that it offers a defendant a unique incentive. It is the only means for a first-time DWI defendant to avoid a conviction by not going to trial. DWI is one of the few offenses were the legislature requires a conviction with any resolution (besides dismissal or acquittal). Even if a court considers this program an illegal deferred adjudication and fails to grant an expunction (and that is a huge if because the case will be formally dismissed like a pre-trial case and not like a deferred adjudication which happens without a formal dismissal motion); then a defendant would still have avoided a conviction on his record. This is still far superior to the manner in which DWIs have been resolved up to now. The DAs efforts to change the status quo should be SUSTAINED!

Perhaps this new incentive will encourage some to seek help. If not, facing 30 days in jail will certainly cause many to "bottom out" and realize the need to get help.

2 comments:

AnonymousAug 4, 2009 01:21 PM
Thank you for speaking out about this program. I do think that it is an alternative just like any other alternative the defendant is presented. How then can it be considered "coercive" if the defendant still has the right to go to trial? It is still techinically within the realm of possibility that a jury can give timeserved or even just acquit the defendant if the facts are that bad.

I think that the DIVERT program adds up to a really hard probation to live up to, but it certainly will cause me to think before I have wine with my dinner!
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AnonymousAug 21, 2009 11:36 AM
Cursing like a drunk sailor, while driving on a liver pool of intoxicated manslaughter. The victim being both the other commuters and the driver himself. He does not know in his frail state of mind that he is in trouble and endangering everyone who aboards the free way with him. He does not know that he is a victim to his condition and that life without subtance is more productive. He cannot rationalize these conceptions or other wise he would not endanger his life or the passing travelers. The only thing he understands is to drink more wine at dinner time because surely a glass just wont be enouph to succomb the liver he encompassed with a life long serenity to eat, drink and have a little more drink. Do not drink in Excessiveness is what the Psalm writer say's but if you cannot drink and stop with one then you must then admit that you have a problem. I heard Solomon say, Do not admire the wine when it sparkles in the cup even though it is red and it sparkles in the crystal in the light of the night. He said be not admiral of this kind of wine because though it may look good and sparkle in the night and though it make you feel good for a temperal moment the end there of is as the bite of a snake. Then the ole' folks will tell you "The only way to get rid of that Hang Over that wine left you with is to bite the snake that bit you back." This to is deciet because that means the only way to kill the pain is to have another drink and it leds to a deadly cycle of road kill. Paul on the way to Damascus was blinding by this light. The C with the 7 in the middle making in a G. This is also known as bar Jesus and no one can say it better than the folk's that lost their A--s in Vegas. I guess thats where those 3 777 and 3 cherry's came in to play. It is no wonder you can take a helicopter with a glass bottom from Ceasors Palace to the Grand Canyon and the Arizona river to see the London bridge they so admire as a land mark of the forum. I went to Vegas once and stayed at the palace for two weeks. Those people put me on those machines and had me drunker than Cooter Brown. When I woke up the next evening my Supervisor who I went there with took me to ride a roller coaster on top of a 100 story building right next to Circus, Circus. I was still higher than Georgia Pine's and wasn't looking forward to making a trip any higher but when I got back from up there I knew I would never let them have my A-- again.
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