Deferred Adjudication for DWI

I couldn't tell from the highly flattering front page photo in the Statesman of Rep. Todd Smith (Texas House District 92) whether he was old enough to remember the last time persons charged with driving while intoxicated were eligible to receive deferred adjudication.  The Legislature did away with it on January 1, 1984.  My recollection is that the powers that be figured out that DWI was too serious to let some avoid a conviction.  Deferred adjudication (not "deferred ajudification", which seems to have infected the lexicon) is a provision whereby the judge finds sufficient evidence of guilt but withholds finding the defendant "guilty". The case is ultimately ordered "dismissed" upon successful completion of the deferred adjudication.

Well times certainly have changed haven't they. Now, MADD likes it. John Bradley, the influential Williamson County DA is in favor of it along with the Statesman's editorial board. What up with that? According to the Statesman's Claudia Grisales, it looks like the bill  will pass. How did we get from here to there and back again? Expediency.

122,000 pending DWI's statewide. A jury trial for each one of them? That won't happen. They'd be trying DWI's until sometime in 2020. So dust off the deferred adjudication provision in the Code of Criminal Procedure. This won't make a dent in the backlog. For one thing, deferred adjudication boasts a non-existent benefit of not counting as a conviction. However, everyone knows you've been arrested for DWI; you cannot expunge a deferred adjudication. Dollars to donuts the non-disclosure law will not apply to DWI. (I wrote this before I actually read the proposed applicable provision of the non-disclosure law; sure enough no non-disclosure for DWI's).

So with deferred adjudication on the books for DWI I'm going to tell my clients, "It's not technically a conviction. However, it's still on your record, you won't be able to expunge it. You won't be able to get an order of non-disclosure. Your employer will be able to see it along with anyone else". Well that sounds attractive doesn't it?

You want to make some inroad upon the number of pending DWI's. Do what a number of counties do informally. Use pretrial diversion-a contractual agreement between the defendant and the prosecution that results in a dismissal. The defendant completes counseling, community service and other specified conditions and his case gets dismissed. I've never turned one down. And if you're worried about the almighty precious criminal record, make the defendant agree not to pursue an expunction. I think that's a disincentive but I still think it will reduce the caseload. You could trust your prosecutors to use it as needed. On the other hand if you're convinced that DWI is the worst offense in the Texas Penal Code you could increase the number of courts and prosecutors. You could put your money where your mouth is instead of rejiggering the system with a worn out provision that, I predict, will be scrapped because it didn't do what the proponents expected.