Wednesday, December 29, 2010

Defense bar critiques suggestion for deferred adjudication on DWIs

Now that the defense bar has had a chance to review state Rep. Todd Smith's HB 189 - a MADD-endorsed bill that would allow deferred adjudication for first-time offenders (see earlier Grits coverage here) - several prominent attorneys are expressing serious reservations.

Mark Bennett at Defending People doesn't like the idea. He's argued in the past that Harris County's DIVERT program (which some have criticized as de facto deferred adjudication) makes little sense for defendants given that roughly 95% of Harris County DWI defendants who don't plead guilty have their cases dismissed or prevail at trial.

At The Defense Rests, Paul Kennedy at first thought the legislation seemed promising,. Yesterday, though, he looked more closely at the bill and declared he couldn't support it in its current form, but that "that a sea change may be taking place and that at some point in the near future a more amenable bill may be submitted."

After initially offering a more sympathetic view, Robert Guest now says the bill is "a con designed to trick unwary DWI defendants." It's a different breed of cat than usual "deferred adjudication," he notes, and mandates ignition interlocks on the first offense (I'm okay with requiring interlocks on the second offense; the first is unnecessary and unworkable).

My question to these writers and other interested readers: What specific changes would need to be made in the bill to make it palatable? (See the text.) Rather than oppose the bill reflexively, it might make sense to brainstorm about ways in which it would be possible to meet MADD and Rep. Smith halfway. After all, the defense bar opposed it when MADD convinced the Lege to eliminate deferred for DWIs in the first place. Or maybe deferred adjudication itself is simply an idea that never really fulfilled its promise and deserves to be relegated to the dust bin of history. I'm not at all sure where I come down on these issues without giving it a lot more thought. Let me know your opinions in the comments.

UPDATE: See a comment string discussing the bill on the District and County Attorney's Association User Forum.

21 comments:

Anonymous said...

What happens to those that cannot afford an interlocking device at all?

Barry Green said...

The current law requires an Interlock on DWI-First for a breath/blood test of .15 or over if "convicted." Let that law apply to deferreds as a compromise. CCP 42.12 Sec. 13(i)

The current bill doesn't allow for deferred adjudication if a person holds a CDL (even if he were driving a private vehicle at the time of the offense.) This is unfair and needs to be changed.

As I read elsewhere, however, the distinction between "deferred" and "convicted" is largely non-existent now. And if insurance companies can raise rates based upon a DWI deferred (I have no idea), an employer won't care whether his employee who drives company vehicles avoided a conviction or not. He'll be canned.

Anonymous said...

We just need to start calling all these kinds of bills by their rightful name: "Cha-Ching" bills. They are designed to put money in someone's pocket. I agree that a .15 BAC is a good indication that someone is dangerous. However, it's ridiculous to require an ignition interlock for the grandfather who went to his granddaughter's Quinceanera and drank to a .09 level for his first ever DWI. I wonder if Smart Start or Guardian helped influence the writing of this bill?????

R. Shackleford said...

Sounds like a revenue generating scheme for the state in collusion with the various interlock companies. Beware of any law that sounds generous to folks accused of dui.

Anonymous said...

The principal reason the defense bar opposes any kind of deferred on DWI cases is that it will cut into their retainers that they are now charging for individuals who are desparate (for whatever reason) to keep the DWI convictions off of their record. It will ultimately make these cases easier to work out and still avoid the problem that existed many years ago where drunks repeatedly got deferreds for DWI offenses thereby precluding any opportunity for punishment enhancements. What a hilarious irony to see Grits "kinda sorta" on the same side of this issue with prosecutors and adverse to the defense bar! A sign of the apocolypse? LOL!

Anonymous said...

Deferred... Convicted... I had the interlock on my car for 18 months and hadn't even seen a Judge! So much for "Innocent until proven guilty" right? When I finally won my case with expert testimony from my doctor proving that the medication I was taking was mis-labeled and that there was a class action law suit against the drug company. I didn't see anyone running out to pay me back. They just said it was a condition of bond. Even had to pay $43.00 for them to remove the stupid thing. Oh yeah!!! It has nothing to do with justice... Only money!

Gritsforbreakfast said...

12:54, you're right about the pecuniary motives of the defense bar on this, though the data Bennett cites arguably implies their opposition is also in the best interests of their clients who don't plea out. Robert Guest made the same point you did when he wrote:

"Some defense lawyers are going to oppose this bill for the wrong reasons. Less DWI trials = less DWI trial fees. Some defense lawyers are going to oppose this bill for the right reasons. That is, more DWI pleas = less DWI acquittals. Defendants are going to plead for deferred because it saves them the expense of trial, and because most DWI defendants have no problem with probation (besides marijuana possession, DWI defendants are the least 'criminal' defendants in the system)."

And I don't know why you find my stance "ironic" when my position is that I'm not taking one yet. Maybe you need to look up that word and make sure it means what you think it does.

1:08, was that a pretrial condition for 18 months?! In what county, if you don't mind my asking (since you're anonymous)? And was this a first offense? That's a ridiculous waste and unfair to boot. And as 11:46 points out, a lot of folks just can't afford it.

And Barry, excellent suggestion. BTW, I just stopped by your blog in the first time in a while after seeing your comment and you've got some fun stuff up there lately. You give readers a reason to visit besides just the boob pics, but they're always a nice bonus. :)

Anonymous said...

12:17...of course the interlock industry had a hand in this. Go to the TEC campaign contributions site and you can see for yourself.

Don Dickson said...

So if you're granted deferred adjudication, you're paying a monthly fee to probation and another (larger) fee for the IID, plus whatever fees you incur for classes and what-not that are tacked on as conditions of probation? I could see this getting almost as expensive as the surcharges. And I could still see the lawyers making plenty of money on motions to adjudicate, etc.

Anonymous said...

Would it be fair to say that if one is unable to pay their fees they will be revoked and sent to prison anyway? Will your record be clean if you are able to complete your probation period without incidence?

Anonymous said...

01:15, The D.A. was trying to get a conviction as a second DWI. The county was Fort Bend. Yes, I was convicted of a DWI 12 years ago and I think this may have really got the D.A. going hot on this one. The first thing that happened was I was rushed in to talk to a probation officer that offered me a really "sweet" deal for intense supervision. All I had to do was plead guilty and enroll in this program and everything would be behind me in a year, the fees would be as a class B misdemeanor instead of class A, all kinds of cost would be waived, but it would still go on my record as a second conviction. I was on some very strong medication and had some horrible side effects as my doctor testified. So I turned this "deal" down as I felt I was innocent and this was not something I had control over. So for the next 18 months there were several hearing resets, I had to call a recorded message every day at 5:00 a.m. to see if my "color" was the one for the day. If it was, I had to go to Fort Bend and do a mandatory UA that cost $15.00 every time plus another $10.00 for them to have me drive my car by and look to "see" if the IIL was installed. Pay for the interlock at $79.86 every month, keep paying my attorney every time there was a reset. We won't even go into how much was lost with just time off work. All this was happening before I even seen a Judge. On top of that, I kept getting phone calls from the Probation officer asking if I wanted to change my mind and accept his "deal". Then there was the matter of my children not wanting to be in the car with me or have there friends around because they were humiliated that Dad had to "blow" in his car to get it to work. I haven't even had so much as a parking ticket in the last 12 years! If I had been convicted or plead guilty at the beginning of this, then yes, I'll gladly pay my dept to society. So the way I see it, I was convicted and sentenced the day I was pulled over. This is not justice in any way, shape, or form. Just revenue.

Mark Bennett said...

12:54, you're right about the pecuniary motives of the defense bar on this

I'm not surprised that your anonymous commenter has no clue what he's talking about (if you're anonymous, why bother with accuracy, reason, or even reading comprehension?) but I'm a little surprised at your affirmation of his ignorant anti-criminal-defense-lawyer bias, Scott. (I'm thankful that you affirmed it, though, since I make it a practice not to respond to anonymous cowards.)

In matters of policy the criminal-defense bar often argue in the public interest (as they see it) even when that interest is opposed to their self-interest. For example, the war on drugs probably puts more money in our pockets than anyone's, but we're among the loudest advocates against it.

Deferred adjudication, as proposed, will not be a conviction, technically, for purposes of Texas criminal law, but it will still have most of the same adverse consequences for those who are desperate to keep a DWI off their records.

As many people who have taken deferreds for other stuff in the last 30 years have learned, it is still on your public record and it still counts against you with your employer, your insurance company, your landlord, cops, prosecutors, and the general public. For most purposes, a deferred in a non-DWI case was no better for the accused than a straight probation, at least until nondisclosure became possible.

If nondisclosure is not available on a DWI deferred, then a DWI deferred is little better than a straight probation. D might avoid the surcharge, but in no meaningful practical sense is he going to keep anything off his record.

Would deferred for DWI cost me income? Only if (a) there were a real benefit to be gained by a defendant taking deferred; and (b) deferred were consistently offered in the few ugly cases that shouldn't be tried anyway. If that were the case, I would favor it.

Since it's a shell game, though, and since I've seen the harm done to many defendants who took deferred for other offenses thinking that was a silver bullet (deferred is often the lazy lawyer's way out, and I've heard lawyers go to great and dishonest lengths to sell it to their clients), I oppose it.

Mark Bennett said...
This comment has been removed by the author.
Anonymous said...

I'm anonymous because it would be professional suicide to be public.
Prosecutors will continue to offer plea agreements for a lesser offense regardless if deferred adjudication becomes an option for 1st time DWI Offenders. Even if deferred adjudication becomes a reality for 1st time DWI Offenders, if the defendant violates the term of supervision, the prosecutor will still recommend a similar if not the exact same thing that would have been recommended if the defendant was serving a term of Standard Probation. This happens already with persons who are serving terms of deferred adjudication for any given offense. Interlock devices and continuous random alcohol monitoring systems don't stop DWI. Never have and never will. They do make a lot of money for private industry. They do sound good to the general public. They even sound good to many Judges and Prosecutors. DWI stops when the offender stops driving drunk. Anybody can commit the offense of DWI. All that is needed is a few dollars, the corner convenience store, and a vehicle. Most people have more than one vehicle to choose from to drive. I'm not suggesting to do nothing, but am stating that this proposed legislation is mostly just good conversation, nothing more.

blanfear said...

#1.
Scott I have ready several articles on this so please bear with me while I explain. My comment is to long so I will have to break it down at least once if not twice. I will mark this comments in numerical order. There are several things I and no doubt millions of other Texan's who have taken deferred adjudication.

The first article I read on this can be found here: http://www.reporternews.com/news/2010/dec/27/dwi-changes-considered/

Taylor County District Attorney James Eidson and Tarrant County Prosecutor Richard Alpert comment in this article: "“My understanding is, even though they get deferred, it is still usable as a conviction,” he said. “That’s the key point. Other than that, it’s hard for me to comment.”

Meanwhile, Tarrant County Prosecutor Richard Alpert called it “a needed change.”

“It’s not like they are getting a free DWI, but a type of probation that would not technically be a conviction,” Alpert said.

Scott or anyone else who can help me better understand the deferred adjudication law, please correct me where I am wrong.
Part of the deferred adjudication "contractual agreement" that the state of Texas signed with the approximate 2 million Texans is stated, in part, as found in Texas Criminal Code 42.12 Section 5(c):

"...Except as provided by Section 12.42(g), Penal Code,
a dismissal and discharge under this section may not
be deemed a conviction for the purposes of disqualifications
or disabilities imposed by law for conviction of an offense..."

AND

Texas Criminal Code 42.12 Section 20:

"... If the judge discharges the defendant under this section,
the judge may set aside the verdict or permit the defendant
to withdraw his plea, and shall dismiss the accusation,
complaint, information or indictment against the defendant,
who shall thereafter be released from all penalties and
disabilities resulting from the offense or crime of which he
has been convicted or to which he has pleaded
guilty..."


The one notable exception to the rule of not "being deemed a conviction" is listed in the statute itself, Section 12.42(g) Penal Code. If one researches what this exception to the law is, it becomes clear that the exception is referring to certain sex offenders. This is discussed in detail under Kellum VS. Texas Work Force Commission; No. 05-05-00718-CV 5th Circuit Court of Appeals, Dallas, TX. March 29, 2006.

blanfear said...
This comment has been removed by the author.
blanfear said...

#2

On October 10th 2006 the United States Supreme Court ruled on a case pertaining to deferred adjudication in Texas. http://www.supremecourt.gov/opinions/06pdf/05-10671.pdf
Two very interesting paragraphs in this ruling:
(1) Tex. Code Crim. Proc. Ann., Art. 42.01, §1 (Vernon 2006 Supp. Pamphlet) (emphasis added). An order of deferred adjudication probation is not a conviction, and it is therefore not a “judgment” under Texas law. See Davis v. State, 968 S. W. 2d 368, 371 (Tex. Crim. App. 1998). Under a literal reading of the federal statute, such an order cannot be a “judgment of a State court” within the strict terms of §2244(d)(1)(A).
(2) *See Davis v. State, 986 S. W. 2d 368, 370 (Tex. Crim. App. 1998) (“A defendant who has been discharged from deferred adjudication [probation] is immediately eligible to serve on a jury, to vote, and to be recommended for probation by a jury after a finding of guilty at a subsequent trial” (footnotes omitted)); Ex parte Laday, 594 S. W. 2d 102, 104 (Tex. Crim. App. 1980) (“The whole point of [the deferred adjudication probation] statute is to avoid having to formally adjudicate the defendant’s guilt unless and until he demonstrates that he cannot abide by the terms of probation set by the court. If the defendant successfully completes his probation, his offense is essentially expunged”).

So here we have case law that clearly states deferred adjudication is NOT a conviction, not a judgment and that such an order cannot be a judgment of the State Court within the strict terms of §2244(d)(1)(A).

Article 42.12 Section (20) also clearly states that if a person is (keyword) DISCHARGED under this section; who shall thereafter be released from all penalties and disabilities resulting from the offense or crime.

blanfear said...

Reply: #1

This is concerning the deferred adjudication law in Texas. Correct me where I am wrong . Please bear with me while I try to explain my concerns. My posting exceeds the character limit so I will post my reply in two if not three parts.

As found in Texas Criminal Code 42.12 Section 5(c):

"...Except as provided by Section 12.42(g), Penal Code,
a dismissal and discharge under this section may not
be deemed a conviction for the purposes of disqualifications
or disabilities imposed by law for conviction of an offense..."

AND

Texas Criminal Code 42.12 Section 20:

"... If the judge discharges the defendant under this section,
the judge may set aside the verdict or permit the defendant
to withdraw his plea, and shall dismiss the accusation,
complaint, information or indictment against the defendant,
who shall thereafter be released from all penalties and
disabilities resulting from the offense or crime of which he
has been convicted or to which he has pleaded
guilty..."


The one notable exception to the rule of not "being deemed a conviction" is listed in the statute itself, Section 12.42(g) Penal Code. If one researches what this exception to the law is, it becomes clear that the exception is referring to certain sex offenders. This is discussed in detail under Kellum VS. Texas Work Force Commission; No. 05-05-00718-CV 5th Circuit Court of Appeals, Dallas, TX. March 29, 2006.

Erik said...

My two cents:

http://www.austincriminaldefenderblog.com/dwi/deferred-adjudication-for-dwi/

Anonymous said...

Beverly Lanfear posting:

I am confused so let me start here:

On October 10th 2006 the United States Supreme Court ruled on a case pertaining to deferred adjudication in Texas. United States Supreme Court Case No. 05–10671 raises the question whether a Texas order of “deferred adjudication probation” is a “judgment” under the statute. Given the case cited; See Davis v. State, 968 S. W. 2d 368, 371 (Tex. Crim. App. 1998) clearly confirms deferred adjudication is not a judgment.

Below I give you two examples; I see no difference between the two.

Example (1). You have a person who is misidentified out of a photo lineup, they are arrested and charged with the crime. A trial is set; a few short weeks before the trial the real perpetrator is caught. The person who was misidentified is discharged from the crime; reason or reasons being lack of evidence or whatever the given reason is stated.

Example (2). A person who takes deferred adjudication: After they successfully complete his or her probation, the judge signs a form dismissing the case discharging the person from all penalties and disabilities for which he or she was arrested. Therefore the verdict is set aside dismissing the accusation, complaint, information or indictment against the defendant.

Taking everything into consideration above: Is there a difference and where does that difference fall in? No judgment has been made in either case, the indictment has been dismissed discharging from ALL penalties and disqualifications.

How can it be deemed a conviction or for inhancement purposes after a person successfully completes their probation and release from all disqualifications and penalties, case dismissed?

blanfear said...

This is so confusing so let me start here:
On October 10th 2006 the United States Supreme Court ruled on a case pertaining to deferred adjudication in Texas. United States Supreme Court Case No. 05–10671 raises the question whether a Texas order of “deferred adjudication probation” is a “judgment” under the statute. Given the case cited; See Davis v. State, 968 S. W. 2d 368, 371 (Tex. Crim. App. 1998) clearly confirms deferred adjudication is not a judgment.

Below I give you two examples; I see no difference between the two.

Example (1). You have a person who is misidentified out of a photo lineup, they are arrested and charged with the crime. A trial is set; a few short weeks before the trial the real perpetrator is caught. The person who was misidentified is discharged from the crime; reason or reasons being lack of evidence or whatever the given reason is stated.

Example (2). A person who takes deferred adjudication: After they successfully complete his or her probation, the judge signs a form dismissing the case discharging the person from all penalties and disabilities for which he or she was arrested. Therefore the verdict is set aside dismissing the accusation, complaint, information or indictment against the defendant.

Taking everything into consideration above: Is there a difference and where does that difference fall in? No judgment has been made in either case, the indictment has been dismissed discharging from ALL penalties and disqualifications.

How can it be deemed a conviction or for inhancement purposes after a person successfully completes their probation and release from all disqualifications and penalties, case dismissed?