I’ve spent a great deal of time in Brazos County court this week. Meeting with prosecutors, working to resolve cases, negotiating . . . and getting nowhere. Hurry-up and wait was the maxim. So what’s the problem? Well, prosecutors wanted too much. Not all prosecutors mind you . . . but many. And what would help move those backlog of cases, especially DWI misdemeanors? Pre-trial diversion would work to remove much of the backlog. Especially for first time offenders who, for the most part, are self-correcting folks who simply needed a wake-up call. But pre-trial diversion is not an option in Bryan-College Station criminal court proceedings. In fact, there are many Texas counties that offer pre-trial diversion. Just Google the Harris County DIVERT program.

Pre-trial diversion could be described as “informal probation.” There’s no adjudication of guilt. The offender simply agrees to participate in a community supervision program which would include monthly reporting to a probation officer, education classes, community service, and other common conditions you’d associate with probation. The offender would pay monthly fees and other associated expenses.

The upside for prosecutors is quick accountability and consequences for behavior. Even though the police had strong evidence to convict, rehabilitation and a second chance would be the focus of such a program. Cases would move more quickly since the offenders wouldn’t be compelled to plead guilty and accept life-changing convictions. Again, since most of these low level offenders will avoid repeating this humiliating experience at all costs, they’ll self-correct and stay out of future trouble.

The upside for the accused person is the opportunity to get their arrest and court records expunged. Upon successful completion of a pre-trial diversion program the criminal charge would be dismissed. Once the statute of limitations expired (two years for misdemeanors) the person could file a petition to expunge the arrest and all associated court and government records. If the person failed to successfully complete the pre-trial diversion program, they could be prosecuted as usual.

Pre-trial diversion could work in Brazos County. I’ve talked to prosecutors about it from time to time. Some agree, while others believe only a conviction would serve the interests of the community. I know this, however. If my clients have no incentive to resolve their case short of a jury trial, then a jury trial we will have . . . along with the clogged court dockets and delay.


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.

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