DIVERT dismissal confusion....
Again, I feel as confused as anyone else about the DIVERT program, since looking up or googling DIVERT gives a hundred different perspectives...mostly coming from attorney's who "know the law" and that is completely laughable. The issue is this....and I have stolen this from an attorney's blog:
"Basically, if you are a first-offender DWI defendant you may qualify for the DIVERT program. You plead guilty, but if you follow the program's requirements for a specified period and pay fees and costs, your guilty plea is erased and your case is totally dismissed. If you are a first-offender DWI defendant not on the DIVERT program, you will be prosecuted pursuant to the Texas Penal Code. Non-DIVERT first offender defendants everywhere else in Texas are eligible for deferred adjudication community supervision (a fancy way of saying probation.) If those other defendant's live out their deferred-adjudications successfully, their plea of guilty is still a part of the record but the court does not actually make a finding of guilt and their probationary period is satisfactorily terminated."
COMPLETELY FALSE.......from what I was told from my DIVERT officer and the DA's office, your plead of guilty or DWI arrest is visible to officers of the law. IF/when you get an expungement, then it will be taken off your record for those visible public record.....unfortunately there is a clause that states the DA's office will retain ALL of your information, arrest, guilty plea, etc. on file. Hmmm....color me stupid, but doesn't that completely contradict the entire concept of expungement? Someone please tell me I'm wrong. I've gone over this so many times in the past year, and I am still trying to figure out why someone hasn't confronted the DAs office. I guess I will have to wait my two years to find out if this is actually truth. Unfortunately by then they will most likely have changed the ruling and the guilty plea will stick...who knows, with this system anything is possible.
"Basically, if you are a first-offender DWI defendant you may qualify for the DIVERT program. You plead guilty, but if you follow the program's requirements for a specified period and pay fees and costs, your guilty plea is erased and your case is totally dismissed. If you are a first-offender DWI defendant not on the DIVERT program, you will be prosecuted pursuant to the Texas Penal Code. Non-DIVERT first offender defendants everywhere else in Texas are eligible for deferred adjudication community supervision (a fancy way of saying probation.) If those other defendant's live out their deferred-adjudications successfully, their plea of guilty is still a part of the record but the court does not actually make a finding of guilt and their probationary period is satisfactorily terminated."
COMPLETELY FALSE.......from what I was told from my DIVERT officer and the DA's office, your plead of guilty or DWI arrest is visible to officers of the law. IF/when you get an expungement, then it will be taken off your record for those visible public record.....unfortunately there is a clause that states the DA's office will retain ALL of your information, arrest, guilty plea, etc. on file. Hmmm....color me stupid, but doesn't that completely contradict the entire concept of expungement? Someone please tell me I'm wrong. I've gone over this so many times in the past year, and I am still trying to figure out why someone hasn't confronted the DAs office. I guess I will have to wait my two years to find out if this is actually truth. Unfortunately by then they will most likely have changed the ruling and the guilty plea will stick...who knows, with this system anything is possible.
Hi! I was browsing the web about the DIVERT program and came across your blog. It's nice to hear someone elses point of view. I just started the program on August 7th. I was wondering about the expungement as well. I came across a couple websites that said things such as this..
ReplyDelete"A benefit of DIVERT is that the D.A. will not oppose an expunction of the arrest record two years from the date of dismissal of the case.
However, while the D.A. has stated they will not oppose expunction, it is not clear whether the Texas Department of Safety will agree to the expunction.
Thus, while many of us believe expunction will be possible for DIVERT, it is somewhat unclear at this point."
......
the words "somewhat unclear" make me uneasy. Have you heard from anyone that has put in the 3 years and received the expungement?
Hi. There is a lot of confusion when it comes to expuntion. I know that the DWI charge is dismissed after the year by the judge; as long as you are arrest free for 2 years you can ask the DA to have it taken off your permanent record. The problem is there is no record of anyone doing this and its hard to get clear answers. Also, the theory is that it will not be visible to anyone checking your record but the DA will have record of it happening and can use it against you in the future if you ever get a DUI again. And the Texas Dept of public safety is seperate, thats why you have the ALR for your liscense seperately....Its confusing. And something I am still trying to clear up.
ReplyDeleteSO yes it is not an easy answer.
Awesome. Thank you for the reply!
ReplyDeleteI "graduated" from DIVERT in October. My experience was somewhat similar, but very different in many ways, from yours. One reason may be that my husband is a defense attorney and his firm handled my DWI case. Therefore, I was constantly kept up to date with what was happening with my case.
ReplyDeleteOne thing that should be mentioned: YOU HAVE THE RIGHT TO HAVE YOUR ATTORNEY PRESENT FOR YOUR SALCE and DIVERT INTERVIEW. In fact, when the question about the circumstances leading to my arrest came up, my lawyer informed my interviewer that I did not have to answer that. My answer to that question was "I was driving home from a friends house, failed to use my signal when I turned, and was pulled over." This response did not hurt me. They will ask questions in the interview that are unneccessary. Having your lawyer present prevents this from happening and effecting the outcome of your interview.
I also had an extremely lenient PO (who has since retired). While for the first 6 months I was required to meet with him once a month, I only took UA's 3 of those times. If I traveled out of state I just sent him an email letting him know I was going and he would say "okay, have fun!", there were no surprise UA's after my return. I didn't have to attend any AA or SOP meetings, only complete 16 hours of community service (at a place where we were basically allowed to stand around and chat).
It was much easier for me because during the 4 months between my DWI and signing my DIVERT contract, I got pregnant, so no chance of drinking there!
I lost my license because my officer showed up at my ALR, and it is well known that if your officer doesn't show up you get to keep your license, but that hearing and the paperwork didn't make it across the right people's desks until a week before my license suspension was up, so the DA said I did not need to go ahead and get an in home monitor. After being put on modest bedrest, I didn't drive my car, so my husband would take my car to SmartStart to be calibrated. I had my interlock removed exactly 6 months after I started DIVERT.
Being on bedrest also made it impossible for me to work. This was never a problem, even after I delivered my child. Being a stay-at-home-parent or unemployed was not a reason to keep you from participation in the program. I realize since the program has been shut down, that doesn't matter much any more.
As of the day after my DIVERT contract ended, it shows on all records that my DWI was dismissed. In 2 years we will move to expunge it from my record completely, in accordance with my contract. However, the DWI arrest WILL still be visible to law enforcement agencies, but it will show it was dismissed. My arrest will NOT show up on background check future employers run.
While being on the program was expensive, and a bit of an annoyance, realizing that I broke the law and was over the legal limit when I was driving helped keep my perspective. There is no reason why any person in that building should be "nice" or helpful. I did a criminal act, and this was my punishment. Luckily, this punishment led to the dismissal of my charges. It could be worse and I could be living with this monster on my back (something that is not a true representation of who I am) for the rest of my life. Now, it's just an annoying life lesson.
Hi and thank you for your comments. I disagree with the treatment of anyone whether they broke the law or not. We are all human and make mistakes, in no way should one treat another as less than human period. You were lucky that your husband was your attorney, most of us did not have that luxury and had to guess or just wait for answers.
DeleteI'm happy you got out of the program and learned a lesson.
Thanks for posting
Cheers x
How far back do the UAs test for alcohol intake?
ReplyDeleteUA's are 24-48 hrs unless they do an Etg that goes back as far as 90 hours. I asked to go to Vegas for a Business trip and they hit me with both a Hair and Alcohol Hair Follicle test...which tests for 90 days back. So just know there are tests that can go back for 90 days,
ReplyDeleteI HAD to pay for this test in agreement for them letting me go to Las Vegas. The cost was damn near $300 dollars! Then there is the waiting for 3-5 days to see if you pass....very stressful. If I had to do it over again I would of NOT told them I was going on a short 3 days trip to Vegas. But you do run a risk...a huge risk because if you are caught, you are faced with immediate release from the Program and either a 90 day stay in Harris County or up to 1-3 years of Probation which includes having the interlock device for 3 years versus 6-12 months.
Its all a racket, everything costs money, the Attorney's all know each other, the Judges all known each other and the Business's profiting from all this all known each other.
Sorry am just frustrated with the whole process..but 36 days and counting and I'm back to being a free American again!