I have addressed some of the problems with pretrial diversion in all types of cases, and the dangers discussed apply in DWI cases as well. However, there are some unique issues with DWI diversions that a client needs to understand. In many respects, a pretrial diversion for a DWI is a gift. An individual charged with DWI cannot receive deferred adjudication, which means that the only way to avoid a conviction is an acquittal, or dismissal that results in an expunction of his criminal record.
Most of my clients hire me in order to achieve that holy grail of dismissal, and I am very persuasive. However, facts are king and if an individual has a blood test or other facts that greatly substantiate guilt, no back slapping, threatening or begging is going to convince the Assistant D.A. to dismiss.
Sometimes trial is absolutely necessary. A prosecutor reviews a case for probable cause, whereas a jury makes beyond a reasonable doubt determinations. Driving While Intoxicated is one of those charges where the jury absolutely gives the defendant the benefit of doubt. Most jurors can see themselves in the position of the accused.
However, there is no guarantee what a jury will do. In addition, once the jury finds an accused guilty, there is very little control on the resulting punishment. If the Judge is deciding punishment, he or she may give probation, but pile on conditions one could negotiate away with plea bargaining.
The benefit of pretrial diversion is that a dismissal is guaranteed if certain conditions are met. The current program provided by the District Attorney in Harris County spans one year. An interlock device is almost always required, as is community service and various classes. A participant in the program must see a probation officer, take drug tests and do most of the conditions one would expect with a standard probation. If the program is followed, then the DA dismisses. That is the upside.
Like most things in life, the downside is painful. Once a client requests pretrial diversion, it is an all or nothing proposition. In order to get pretrial diversion, the individual must fill out a questionnaire provided by the District Attorney. It asks surprising questions like where were you coming from, and how many drinks did you have? Answering these questions are uncomfortable, and usually fall squarely within the protection of an attorney-client privilege. If you fail at the diversion program, these answers are recorded and available to the DA if a punishment hearing or trial follows.
In addition, not everyone can qualify for pretrial diversion. As of the date of this post, the DA refuses to offer pretrial diversion for anyone with a blood or breath test over .15. Any prior contact with law enforcement may result in being turned down for the program. I have had several clients informed that they were not eligible because they had a dismissed criminal case sitting on their record. (Another reason for expunction.)
A client also needs to understand that a pretrial diversion has no effect on a DPS decision to suspend his license as a result of a blood or breath test refusal, or failure. That whole mess of a process is governed by rules and procedures that have nothing to do with the result in criminal court.
The bottom line is that many times a trial is preferable to a pretrial diversion. This decision needs to be made after your lawyer has spent many hours obtaining and reviewing evidence in possession of the state. Together, you and your client can review the options, odds, benefits and burdens of both options and make the right choice about how to proceed. Most of my clients are unbelievably stressed after being arrested for DWI and prefer to get the case over with, but proper representation takes time. Rushing into a pretrial diversion decision is as foolish as marrying someone after a first date.