The Office of

Patricia R. Lykos

Harris County District Attorney

Overview of HCDA D.I.V.E.R.T. Intervention Presented by: Roger Bridgwater, Bureau Chief Professional Development, Community Protection and Ethics Bureau Harris County District Attorney’s Office 1201 Franklin, 6

th floor

Houston, Tx, 77002 Wk: 713-755-3796 Fax: 713-755-6865 Bridgwater_Roger@dao.hctx.net

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The Problem:

Harris County ranks #1 in DWI Fatalities

Among the Large Counties in the USA

• Experts agree that limited public transportation and urban sprawl that would lead their 3.9

million residents to drive many miles are partly to blame for their high DWI fatality.

• Meanwhile, the county jail is constantly filled with DWI suspects due to more officers

and stepped-up reinforcement patrolling roadways at peak times. Added to this mix is the

public’s stubborn reluctance to get cabs or rely on designated drivers when they get

drunk.

• From 2000 to 2008 those opting for jail time to avoid treatment as the method of

disposing of their criminal charge has dropped by 26%

0

2,000

4,000

6,000

8,000

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011*

Straight Convictions Probations Acquittals Dismissals

Start of Divert Program August, 2009

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011* Straight

Convictions 5,069 4,812 5,354 5,658 6,740 6,720 6,294 6,421 6,394 6,232 5,069 4,402

Probations 4,719 4,384 4,021 3,617 3,333 3,039 2,266 2,152 2,214 2,331 3,498 3,458

Acquittals 15 11 8 29 80 128 120 112 109 61 75 52

Dismissals 812 718 713 791 858 1,104 1,358 1,261 1,100 1,811 2,630 2,805

*2011 data YTD - November 17, 2011

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The Solution:

D.I.V.E.R.T. Intervention

A. What is DIVERT Intervention?

The HCDA’s DIVERT Intervention program began August 1st 2009.

DIVERT is an addition to the exceptional efforts already underway in our community to

reduce the incidents of Driving While Intoxicated and the devastating loss of lives of

innocent members of our community as a result of the automobile crashes that are

occurring at an alarming rate.

DIVERT is an acronym for Direct Intervention using Voluntary Education Restitution

and Treatment.

HCDA’s DIVERT Intervention is the postponement of prosecution in first offender Class

B Misdemeanor DWI cases. Any person qualified as being eligible for the program is

subject to the respective conditions imposed based upon the evaluation of the Defendant.

The intervention time period of supervision shall not exceed two years.

The keystones of this program are Education, Restitution, and Treatment. Treatment is

determined after a thorough battery of tests to determine pertinent matters including:

alcohol/drug dependency, motivation, needs assessment, and supervisory requirements.

DIVERT Intervention is reserved for cases in the best interest of the community.

B. DIVERT is designed to:

1. Reduce the instances of repeat arrests for driving while intoxicated through mandatory

Evidence-based treatment and supervision;

2. Raise community awareness of consequences of Driving While Intoxicated;

3. Minimize court appearances during the disposition period;

4. Impose Evidence-based conditions following evaluation of each offender;

5. Objectively assure entry, supervision, and treatment criteria uniformly applied to all.

C. DIVERT Intervention joins the outstanding programs (Traditional Traffic Patrol; No Refusal

Weekends; Vigorous Prosecution; DWI Task Force; Mandatory Blood Draws; Citizen

Education) currently being implemented by local law curb the plague of drunk driving and

alcohol related traffic deaths on our streets and freeways throughout Harris County.

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The Result:

It is Working!

The Goal to Increase Participation

in Supervision/Treatment is Being Reached

Month Supervision Straight

Conviction Probation Divert

Month Supervision

Straight

Conviction Probation Divert

January

'10 420 311 239 181

January

'11 376 324 264 112

February 477 302 284 193 February 376 288 269 107

March 544 401 327 217 March 401 364 289 112

April 481 354 296 185 April 345 304 238 107

May 409 307 254 155 May 371 339 270 101

June 438 419 253 185 June 363 368 271 92

July 360 351 217 143 July 300 321 222 78

August 368 312 220 148 August 394 377 250 144

September 346 311 216 130 September 381 278 271 110

October 357 312 230 127 October 404 291 263 141

November 285 330 195 90 November 264 151 175 89

December 300 280 191 109 December

Since the inception of the DIVERT program through 2010,

the average number of 1st Offense DWI Defendants accepting supervision

has increase by 38%

0

100

200

300

400

500

600

Supervision Straight Conviction

Start of DIVERT program

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DIVERT Statistics as of 12-21-11:

4022 enrolled to date

1412 active participants

76.97% (2009) Defendants successfully completed

23.03% (601) Defendants terminated for violation

00.82% (33) Recidivism Rate

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APPENDIX

I. Advisory Materials: National Prosecution Standards, 3rd Edition

1. 4-3.1 Prosecutorial Responsibility-The decision to divert cases from the criminal justice system should be the

responsibility of the prosecutor. The prosecutor should, within the exercise of his or her discretion, determine whether

diversion of an offender to a treatment alternative best serves the interests of justice.

2. 4-3.2 Diversion Alternatives-A prosecutor should be aware and informed of the scope and availability of all

alternative diversion programs. The prosecutor’s office should take steps to help ensure that all diversion programs are

credible and effective.

3. 4-3.3 Need for Programs-In jurisdictions where diversion programs are deemed insufficient by the chief prosecutor,

the prosecutor’s office should urge the establishment, maintenance, and enhancement of such programs as may be

necessary.

4. 4-3.4 Information Gathering-The prosecutor should have all relevant investigative information, personal data, case

records, and criminal history information necessary to render sound and reasonable decisions on diversion of individuals

from the criminal justice system. The chief prosecutor should take steps to ensure the enactment of appropriate legislation

and court rules to enable the prosecutor to obtain such information from appropriate agencies.

5. 4-3.5 Factors to Consider-The prosecutor may divert individuals from the criminal justice system when he or she

considers it to be in the interest of justice and beneficial both to the community and to the individual. Factors which may

be considered in this decision include:

a. The nature, severity, or class of the offense;

b. Any special characteristics or difficulties of the offender;

c. Whether the defendant is a first-time offender;

d. The likelihood that the defendant will cooperate with and benefit from the diversion program;

e. Whether an available program is appropriate to the needs of the offender;

f. The impact of diversion and the crime on the community;

g. Recommendations of the relevant law enforcement agency;

h. The likelihood that the defendant will recidivate;

i. The extent to which diversion will enable the defendant to maintain employment or remain in school;

j. The opinion of the victim;

k. Provisions for restitution;

l. The impact of the crime on the victim; and

m. Diversion decisions with respect to similarly situated defendants.

6. 4-3.6 Diversion Procedures-The process of diverting a defendant should include the following procedures:

a. A signed agreement or court record specifying all requirements for the accused;

b. A signed waiver of speedy trial requirements, where applicable;

c. The right of the prosecutor, for a designated time period, to proceed with the criminal case when, in the prosecutor’s

judgment, such action would be in the interest of justice;

d. Appropriate mechanisms to safeguard the prosecution of the case, such as admissions of guilt, stipulations of facts, and

depositions of witnesses.

7. 4-3.7 Record of Diversion-A record of the defendant’s participation in a diversion program, including the reasons for

the diversion, should be created for each case and maintained by the prosecutor’s office for subsequent use by law

enforcement, unless prohibited by law.

8. 4-3.8 Explanation of Diversion Decision-Upon request, the prosecutor should provide adequate explanations of

diversion decisions to victims, witnesses, law enforcement officials, the court and statewide diversionary program(s) and

when deemed appropriate, to other interested parties.

II. What is the difference between ―Deferred Adjudication and DIVERT Intervention?

1.Deferred Adjudication is a form of Community Supervision and is authorized in Article 42.12 of the Code of

Criminal Procedure. Section 1 of that Article states , in part: “…it is the purpose of this article to place wholly within

the state courts the responsibility for determining when the imposition of sentence in certain cases shall be

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suspended, the conditions of community supervision, and the supervision of defendant’s placed on community

supervision…”

2.Texas Government Code Section 76.011, Pretrial Services. (a) The department may operate programs for the

supervision and rehabilitation of persons in pretrial intervention programs. Programs may include testing for

controlled substances. A person in a pretrial intervention program may be supervised for a period not to exceed two years.

3.Moreover, Article 102.012 of the Code of Criminal Procedure authorizes a department to assess a fee equal to its

actual costs for supervision or providing programs to a defendant. Actual costs include the department’s administrative costs. Tex. Gov’t Code Ann. 75.015(c) (Vernon 1998).

4.Expunction is available for successful completion of DIVERT because:

a. Expunction is governed by Chapter 55 of the Texas Code of Criminal Procedure and prohibits expunction for any

person who received a final conviction or court ordered community supervision under Article 42.12 for any offense

other than a Class C misdemeanor;

b. Pre-trial Intervention is authorized by Texas Government Code and is not prohibited from Expunction.

III. This program is the postponement of prosecution in 1st offender Class B Misdemeanor DWI cases. In

order to be eligible to be considered for the program a defendant must meet the following pre-requisites: 1. Be a US citizen or legal resident alien.

2. Be a Texas resident, and willing to comply with all conditions in Harris County, Texas.

3. TDL valid at the time of the DWI. If relying on International or Interstate reciprocity, please contact DWI DIVERT

first at DWIDIVERT@dao.hctx.net.

4. Never before been arrested/charged/convicted of any criminal offense, including juvenile offenses, or cases that were

originally filed as Class A or B Misdemeanors, and reduced to a Class C. (An exception may be made for dismissed cases). For DIVERT Appeals, e-mail DWIDIVERT@dao.hctx.net.

5. No open felony cases.

6. Defendants with a CDL that are interested in DIVERT must surrender the endorsement. If they subsequently qualify for

DIVERT following a DIVERT interview and assessment testing, they must provide an affidavit indicating they will not reapply for a CDL until 2 years after completion of their DIVERT term.

7. Defendants with high travel demands need to be pre-approved. E-mail DWIDIVERT@dao.hctx.net for pre-approval.

8. Must remain alcohol and drug free while out on bond.

9. Submit to a DIVERT interview and testing conducted by the Harris County Community Supervisions and Corrections

Department to evaluate alcohol/drug dependency as well as other pertinent matters that may affect eligibility.

IV. DIVERT EXCLUSIONS:

1. Judicial Veto.

2. Defendant suffers from co-occurring disorder recognized as a significant factor in reducing the success of a person on

supervision.

3. Restitution issues.

4. Case has been set for trial.

5. Case involves passengers under the age of 17.

6. Circumstances where the supervision/treatment needs exceed those available through DIVERT resources.

7. Circumstances where the DWI offense includes a victim who suffers serious bodily injury or death as a result of facts

surrounding the arrest for DWI, regardless of culpability on the part of the defendant.

Contrary to the best interest of the community and intent of HCDA’s DIVERT.

8. Pending information, complaint, or indictment in Harris or in any other County or state or federal jurisdiction.

However, this exclusion may not apply, in certain circumstances, where the Defendant is charged with one of the

misdemeanor offenses (Misd POM; Misd PCS) arising out of the same transaction. In some circumstances, if allowed to

proceed when charged by misdemeanor information for an offense arising out of the same transaction, a nolle prosequi

with a waiver of SOL may be permitted in Misd POM and Misd PCS matters where DIVERT is permitted. In these cases,

the period of any DIVERT that is permitted may be no less than 18 months and the incentives regarding Interlock removal

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or mail in reporting will not apply. Pre-approval must be obtained by the Misdemeanor Division Chief, Deputy Chief, or

Bureau Chief.

9. Companion FSGI, Resisting Arrest, Reckless Driving, Racing, UCW, UCW by CHL holder, Fleeing, Fict. or altered

DL or ID are excluded from DIVERT.

V. AFTER a DIVERT interview has occurred, if it is determined that a defendant is both eligible and an appropriate

candidate for the program, an agreement will be tailored for the defendant with customized conditions of the program.

Defendants that are alcohol dependent are not eligible for DIVERT. An offer will be e-mailed to you before your next

Court date. If you have not received your offer via e-mail at least 24 hours before your next Court date, please call 713-

755-5474 or e-mail DWIDIVERT@dao.hctx.net. Please print out this packet, and take it with you to Court. Any

modifications must be pre-approved. If the defendant accepts the terms of the agreement, the defendant will be required to

enter a plea of guilty to the offense of Driving While Intoxicated and agree to the punishment to be received in the event

of violation of the conditions of the program. As part of the agreement the Defendant will waive the right to a jury trial,

right to appeal from a finding of guilt, and right to appeal from assessment of sentence.

The case will then be reset for a period of 12-24 months. If the defendant successfully completes all of the conditions of

the agreement and treatment plan the case will be dismissed. After a period of 2 years from the date of the dismissal, the

defendant may follow the statutory procedure and request expunction of the record.

VI. If considering the DIVERT program for a defendant, please do the following: 1. Meet with your client and determine citizenship status.

2. Discuss your client’s travel needs. Defendants that live out of state or that travel frequently may not be appropriate for

DIVERT.

3. Counsel with your client regarding the use of alcohol/drugs while on bond.

4. Notify the court prosecutors of your client’s interest in being considered for the program. Advise Prosecutor if your

client DOES NOT speak English.

5. Approach Prosecutor to have appointment set and provide Prosecutor with your client’s next reset date, the client’s

availability, your name, and email address/fax number where the assessment report and DIVERT agreement may be sent.

6. Advise your client of $202.00 assessment fee that MUST be paid on the 6th floor of 49 San Jacinto St. Should they miss

their appointment, arrive late, or show up without the required fee, they will not be eligible for the program.

7. Accepted methods of payment include cash, money order, or a cashier’s check made out to HCCSCD. Personal checks

and credit cards are not accepted.

8. Inform your client that they must first report to Rm. 451 on the 4th Floor at 49 San Jacinto St. to report for the

assessment. They will then be directed to pay for the assessment.

PLEASE NOTE: A. Before a defendant charged with DWI may enter the Harris County District Attorney’s DIVERT program, the

defendant must be evaluated to determine the appropriate terms and conditions of the supervision program based on the

individual needs and history of the defendant. This evaluation may include any interviews or testing of the defendant

deemed necessary by the District Attorney to facilitate the evaluation process.

B. If the defendant, after evaluation, chooses not to enter into the DIVERT program, the District Attorney agrees that any

information directly or indirectly derived from any interviews or testing of the defendant during the DIVERT evaluation

will NOT be used as evidence against the defendant in any criminal proceedings except for the purposes of impeachment,

rebuttal, or cross-examination should the defendant testify or provide the court with information contrary to that provided

in the evaluation process; or information learned from a source independent of the evaluation.

C. The defendant further acknowledges and agrees that in the event that he does obtain an expunction order related to this

case, the District Attorney is authorized pursuant to this agreement to retain the defendant’s name, date-of-birth, Harris

County SPN, date of offense, name of offense and the date of the filing of the pre-trial intervention agreement. The

defendant affirmatively waives his right to seek expunction of his name, date-of-birth, Harris County SPN, date of

offense, offense, and the date of the filing of the pre-trial intervention agreement. The defendant agrees that the District

Attorney can retain this information pursuant to this agreement regardless of whether an expunction order expressly

discusses the information. The District Attorney agrees to maintain this retained information related to defendant’s pre-

trial intervention in a confidential and secure database that is not be released to third parties