Houston Criminal Law Journal by Texas Lawyers covering DWI Drunk Driving Arrests, Criminal Defense Charges, Drug Possession, and Assault

After more than twenty years the Welfare Fraud division of the Harris County District Attorney's Office (HCDAO) will have a new chief.  Carl Hobbs, chief of the division, one of the longest tenured Harris County prosecutors, is moving to become head of the misdemeanor division.  I hope Mr. Hobbs continues the fantastic work Kate Dolan did while she was the chief of the misdemeanor.  More importantly, I hope that he keeps an open-mind toward pretrial diversions.  For the past two years, the HCDAO has been generous in dispensing these type of agreements.  My concern is that Mr. Hobbs will not be as charitable since he never granted one while chief of the Welfare division.  I am hoping for the best.

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While I understand that the Harris County District Attorney's Office (HCDAO) has a policy of not offering undocumented defendants probation for any case the law disagrees with their position.  Despite the fact that I understand the policy does not mean that I have to agree with it. 

 Recently, I was representing a young woman that was charged with a misdemeanor.  Her parents brought her to the United States when she was just an infant.  She did not play a role in coming to this country herself.  She went to school in Houston and is currently attending college.  She is on target to graduate in one year from  the University of Houston.  She has never visited the country where she was born.  The life she knows is in Houston.  However, according to the HCDAO because she is undocumented she is not being offered the chance to complete probation as punishment.  This is merely a political position by the HCDAO.  The HCDAO is without merit and mistaken.  In fact, some younger prosecutors that I have come across are under the belief that she is not eligible to receive probation at all.  Luckily, this is not the case.  The HCDAO may not offer her probation, but this does not mean that she is precluded from receiving this from a judge or a jury.  When the HCDAO sets a policy it needs to inform the junior prosecutors that despite making this their policy it does not make it the law.

Para personas hispanas:  Escoje un abogado en Houston que hablar Espanol!  Uds. puede recibir probation sin embargo que este en este paiz sin documentos. 

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 You've no doubt read the recent news regarding Toyota Camry recalls. I came across an online story of a man convicted of vehicular manslaughter in Minnesota. Koua Fong Lee was sentenced to 8 years in prison after being accused of speeding and crashing into cars in front of him killing 2 people and paralyzing a third person. Lee contends that his car sped up on its own and is now asking that his 1996 Toyota Camry be reexamined. Toyota has issued a recall for several models and years of its vehicles, but the 1996 Camry is not one of them.

The case highlights the challenges with prosecuting and defending car accidents that may or may not rise to criminal negligence. The Houston Press recently wrote a story regarding the Harris County District Attorney's Office prosecution of car accidents that they believe rise to the level of Criminal Negligent Homicide.

Catherine Evans, Chief of the Harris County District Attorney's Office Vehicular Crimes Section, is quoted explaining the factors that are taken into consideration when deciding whether to charge someone. "What were the ambient conditions? What was the weather like? The lighting, the equipment on the different vehicles if you had different vehicles involved. You're also looking at the behavior and the actions of the victim, the other driver in the case, because it's often a situation of two people making a series of bad choices or acts, so you need to have an understanding of what caused it or how those events contributed to the crash."

If you live in a big city like Houston that is big on highways and not so big on public transportation you will spend a significant time on the public roads. Accidents happen everyday all over town. Sometimes the result of these accidents is death. But is the death as a result of an accident criminal? It could be. Drive safe.

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It seems like the Harris County District Attorney's Office is not budging from the second court date DIVERT decision put in place last month.  This decision requires that anyone wishing to enter the DIVERT program must make that decision by their second court date.  Unlike other misdemeanor charges this seems inconsistent in respect of how quickly a decision needs to be made.  In response,  the Harris County, Texas misdemeanor judges should recognize the unfairness of this policy and allow these cases to proceed down a different track than the other cases that are heard in their courts.  While this has worked well for several years the new DIVERT program throws things off because it is unlikely that an attorney that is handling a DWI case that is eligible for the program is able to make a full assessment before the second court date.  In a perfect world the ALR hearing would be concluded, the video would be reviewed, testifying experts will give their input, the offense reports will be completed and will be in the possession of the lawyer handling the case.  A two week reset does not come close to allowing all of this to occur because of the time constraints.  I would suggest that cases that are deemed to be DIVERT eligible be given a forty five day reset  time frame from their initial court date appearance so most of the preliminary investigation can be accomplished and all parties may make an informed decision before proceeding. 

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I am not sure if Pat Lykos, Harris County District Attorney, will be attending the Houston Rodeo this year, but if she is she most likely is hoping to rope some drunk drivers in during the month of March.  The Harris County District Attorney's Office,(HCDAO) has expanded its "no refusal weekend" once again during the rodeo.  Initially, this program was implemented during major holiday weekends.  Subsequently, it has expanded at will.  Today, the HCDAO is announcing a "spring no refusal."  Their aim is to protect the added travelers during the various events that are occurring at this time of year like the Houston Rodeo, St. Patrick's Day, and "March Madness."  The "no refusal weekend" was implemented to make Harris County, Texas residents think twice before driving while intoxicated.  That message is being diluted by having a "no refusal weekend" becoming the norm.  I would be curious to see the statistics of DWI arrests from a regular weekend compared to one of the "no refusal weekends."  I have not seen any data that suggests that these no refusal weekends decrease drunk driving.  I am willing to wager that what it does increase is the number of Houston DWI Task Force man hours, and therefore cost the city more money then it should be paying out.  All things considered, the "no refusal" sounds great as a press release and sound bite, but is doing little to achieve the intended goal or reducing drunk driving in Hourston.

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One of the requirements of the Harris County District Attorney's Office for anyone arrested for drunk driving or DWI to be considered for the DIVERT program is that they do not have any prior incidents with law enforcement.  This is the initial consideration for anyone that is going to enter the DIVERT program.  When a person is arrested for any crime in Harris County, Texas an appropriate bond is to be assigned.  Typically, a first offender's bond for a DWI in Houston, Harris County will be $500.  I have noticed lately that more personal recognizance bonds are being given for first time offenders.  This should be the rule instead of the exception for anyone that is a candidate for DIVERT in Harris County, Texas.  Some may say that if someone can not make a $500 bond they will not be able to pay for all the fees associated with the program.  Nonetheless, Judge Roger Bridgwater indicated at the initial DIVERT meeting with the defense bar that there would be a sliding scale for those that could not afford all the fees for the DIVERT program.  Granting a PR bond would offset the future costs for the person, allow them to be on bond while going through the DIVERT process and not have someone incarcerated for something that is going to take months to resolve.

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Now that the DIVERT program in Houston is about six months old attorneys are coming across several issues.  Several Houston DWI attorneys have told me that their clients are not  in compliance with the DIVERT contract which, according to the DIVERT contract these defendants are subject to jail time. These attorneys are hopeful that they will be able to keep their clients from going to jail.  Will the Harris County District Attorney's Office (HCDAO) enforce the agreement?  What will the judge do if they have a hearing on the matter?   Is the agreement even enforceable?  I am curious as to what the final result will be in the upcoming cases. 

Mark Bennett provides another opinion in his blog as to why the HCDAO is changing the DIVERT program so capriciously. He concludes that the HCDAO doesn't know what they are doing with regard to the DIVERT program.

Also, Dane Johnson writes in his blog that the HCDAO is reconsidering the two week reset rule that was implemented last week.  A rule that did not make any sense to anyone in the misdemeanor division in the first place and caught everyone else off guard.

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While there is been a lot of talk about building a new jail in Harris County, Texas there has not been much discussion about reducing the amount of people that are in jail today for a low level misdemeanor offense such as marijuana possession.  I have stated before that the law in Texas allows for a police officer to cite a person to appear in one of our fifteen County Criminal Court at Law for marijuana possession.  The Harris County District Attorney's Office (HCDAO) has openly refused to allow officers to do this for the past two years despite the aim of the law being reduction of jail overcrowding.  The HCDAO prides itself on following the law, but for some reason is not doing it in this instance.  Meanwhile, people are getting arrested and await a court date while being housed in the overcrowded Harris County jail.  Why is the public allowing this to happen if current public opinion is against the policy of jail time for small amounts of marijuana possession?  Probably, because the media is not reporting this discrepancy as they should.

It is time that Sheriff Adrian Garcia, all 15 misdemeanor judges, and the Harris County District Attorney, Pat Lykos start allowing officers to write citations for low level marijuana possession like other counties have been doing for a while now.  Alternatively, if the HCDAO opposes them on this issue pretrial bonds should be granted for every person that is charged with this crime.  A pretrial bond will insure that someone is not jailed for something that the law clearly states may be handled by a citation.  In turn, this may reduce the amount of people that sit in the county jail.  I can not believe that this is that difficult to implement.

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As one of the few Spanish speaking DWI lawyers in Houston I represent a fair amount of Spanish speaking people that are charged with the crime of driving while intoxicated.  While they may not speak English they are still lawfully residing in the United States.  Some are citizens with others being resident aliens, or in the United States under some sort of Visa.  Some are here with proper documentation while others are in the process of getting their status sorted out.

The Harris County District Attorney's Office (HCDAO) was initially clear about what type of people would be accepted into their DIVERT program, or so I thought.  They were only accepting people that were in this country lawfully.  One would think that this is straightforward enough, but actually like most other things with the DIVERT program this is ambiguous  Now I have been told, if a person is in the process of obtaining his residency and not yet a citizen or permanent resident they will not qualify for the DIVERT program.  While the Federal government allows them to stay in this country indefinitely the HCDAO does not allow them to enter the DIVERT program.  This is difficult for my clients to comprehend when they are doing everything required of them by the Federal law.  Is the HCDAO being too selective of people when it comes to their DIVERT program or just  too exclusive since they do not have an issue allowing them to go on probation for the same DWI charge.  Regardless, this leaves my clients in DIVERT limbo.

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As a Houston DWI Attorney I am grateful that the Harris County District Attorney's Office is implementing the DIVERT Program.  One question that has gone unanswered thus far is whether a DWI with a child passenger, a felony, will qualify for the new program?  I am hopeful that the administration will treat this first time offender the same as one that is charged with a misdemeanor.

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