Pros & Cons of a Pretrial Diversion Program in Criminal Cases

This video explains the pros and cons of a pretrial diversion program, sometimes known as pretrial intervention. It considers how pretrial diversion works in criminal cases, its advantages and disadvantages. Visit https://www.gustitislaw.com for more information about a pretrial diversion program and the best criminal defense attorneys in Bryan-College Station, TX.

In this video, criminal attorney Stephen Gustitis describes how a pretrial diversion program works in criminal pre-trial proceedings and how it can help and hurt a person charged with a crime. Steve is a Texas Board Certified Criminal Defense Attorney practicing in Bryan-College Station, Texas. He has more than 28 years of experience in the field of criminal law and criminal defense in Brazos County. His videos cover a range of the best defense tactics and criminal defense strategies, including the advantages and disadvantages of a pretrial diversion program.

Probation and the Motion to Revoke

Probation can be a welcomed second chance for good folks running afoul of the law. A person on probation can expect to attend monthly meetings with a supervision probation officer, attend education classes for offenses involving drugs and alcohol, perform community service, and pay fines, fees, and court costs. Depending upon the trouble the person got into, there may be other conditions of probation, even county jail time, that must be complied with before they are successfully discharged from probation.

Problems arise when a probationer begins to violate the terms of their probation. Something as simple as a dirty urine screen can land one back in court to endure the wrath of prosecutor and judge. In the worse cases, motions to revoke probation are filed by the prosecutor which result in warrants issued for your arrest. In Texas, if a motion to revoke is filed on a misdemeanor offense the probationer is entitled to a bond. However, in a felony case the probationer can be held without bond, in the county jail, until the resolution of their case.

An important thing to remember is that everything you say to your probation officer can ultimately be used against you later. If you admit doing drugs while on probation, for instance, the probation officer can come to court later and testify about what you said. Your statement alone can be used by the judge to find a probation violation and sentence to jail, or prison. Like I tell all my clients going onto probation, your probation officer can be your friend, and slit your proverbial throat, all at the same time.

Unfortunately, probationers must be guarded in what they say to their probation officer. Especially folks who tempt fate by violating their conditions hoping the officer does not find out. If you violate probation and are confronted by your officer, remember you have the absolute right to remain silent. In that case, the supervising officer might make your life miserable, but at least you aren't supplying them information to use against you. The best approach is to contact a qualified Bryan|College Station criminal defense lawyer before saying anything incriminating to the officer. At a minimum, the criminal lawyer can talk with the officer and prosecutor without the risk of incriminating you.

The Hole In The Non-Disclosure Statute

Non-Disclosure is a great way for persons to get a fresh start after running afoul of the law, getting deferred adjudication, and completing the deferred successfully. Orders of Non-Disclosure seal those records from dissemination into the public domain by the custodian of records, the Texas Department of Public Safety. However, there's a hole in the statute resulting from DWI arrest records which remain available to the public, even when the person receives a "reduction" and completes a deferred adjudication successfully.

The hole involves cases of DWI arrests where a plea agreement is reached on a "reduced" charge of obstructing a highway, reckless driving, or a like offense in which the accused is eligible for deferred adjudication (DWI is not deferred eligible in Texas). In Brazos County, the usual course involves the prosecutor adding a "Count II" to the misdemeanor complaint alleging obstructing a highway, etc. Count I, the DWI, is waived and the accused pleads guilty to the obstructing count. The court grants deferred and the client goes their merry way, successfully completing the probation.

After successfully completing the deferred the client comes back to me and asks if they can get their records sealed using an Order of Non-Disclosure. Of course they can. However, only the obstructing count will be sealed. The Bryan-College Station DWI arrest will remain on their record despite the completed deferred. Why? Because only the obstructing count was deferred, not the DWI count. Even if the clever defense lawyer includes the DWI arrest information in the Order of Non-Disclosure, DPS will not seal the DWI arrest record.

What about expunction, you ask? Excellent point. However, the problem is Chapter 55 of the Code of Criminal Procedure which provides for expunction. Chapter 55 does not authorize expunction for an arrest "unless" there was no court ordered community supervision resulting from the arrest (except Class Cs). But we know there was court ordered community supervision for the obstructing a highway count. Consequently, the person is not technically eligible for expunction of the DWI arrest and the local prosecutors have been objecting to expunction petitions on this precise issue in Brazos County.

What's the net result of this hole in the Non-Disclosure statute? Presently, even though a good DWI defense lawyer may get the prosecution to reduce a DWI to a deferred eligible offense, the accused person is stuck with a DWI arrest record that can neither be sealed, nor expunged. A big problem for young persons having made a mistake in college and now trying to develop careers in corporate America. Hopefully, the Texas Legislature will eventually fix this problem since the spirit of the Non-Disclosure law is being thwarted by a hole in the statute resulting when DWIs are reduced to deferred adjudication eligible offenses.

Expunging Felony Arrest Records

Last week we examined the expungement of misdemeanor arrest records. Today we'll look at the more difficult case scenario . . . Expunging the felony arrest record.

Regarding felony charges, the Texas Code of Criminal Procedure, art. 55.01 provides that a person who's been arrested (custodial or non-custodial) for the commission of a felony is entitled to have their records and files relating to the arrest expunged if several potential conditions exist:

(1) The person was tried for the felony and was acquitted;

(2) The person was convicted of the felony and subsequently pardoned;

(3) The person was convicted of the felony and subsequently acquitted by the Texas Court of Criminal Appeals; or

(3) An indictment or information charging the person with the commission of a felony was not presented against the person, the statute of limitations period expired before the date on which the expunction was filed, the person was released, the charge did not resulted in a final conviction, the charge is no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person has not been convicted of a felony in the five years preceding the date of the arrest.

If a felony charge was dismissed prior to indictment the arrest record is expungable, provided the statute of limitations has expired. Chapter 12 of the Texas Code of Criminal Procedure establishes the limitations period for felonies and other offenses. The minimum period of limitations for a felony is 3 years. However, depending upon the offense the limitations period can be 5, 10, or 20 years. For offenses like murder and manslaughter, there is no statute of limitations.

However, if a felony charge was indicted, then a person can obtain an expungement of their records only if:

(1) The indictment was dismissed or quashed: and

a. The limitations period expired before the date on which the petition for expunction was filed; or

b. The court finds that the indictment was dismissed or quashed because the presentment was made because of mistake, false information, or other similar reason indicating the absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void: and

(2) The person was released, the charge did not resulted in a final conviction, the charge is no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person has not been convicted of a felony in the five years preceding the date of the arrest.

Next week we'll look at the procedure for expunging criminal records and why the services of a qualified Bryan|College criminal defense lawyer are critical to success.

Expunging Misdemeanor Arrest Records

Potential clients often call asking whether their particular case is expungable. My first question is whether the person was arrested for a felony or a misdemeanor offense? If arrested for a misdemeanor, my next question is always "how was your case ultimately resolved?" Was the case dismissed? Were you found guilty and placed on probation? Did you received deferred adjudication? Were you found not guilty after a trial? Have you been pardoned?

Regarding misdemeanor charges, the Texas Code of Criminal Procedure, art. 55.01 provides that a person who's been arrested (custodial or non-custodial) for the commission of a misdemeanor is entitled to have their records and files relating to the arrest expunged if several potential conditions exist:

(1) The person was tried for the offense and was acquitted;

(2) The person was convicted and subsequently pardoned; or

(3) An indictment or information charging the person with the commission of a felony had not been presented against the person, the statute of limitations period (usually 2 years) expired before the date on which the expunction was filed, the person had been released, the charge had not resulted in a final conviction, the charge was no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person had not been convicted of a felony in the five years preceding the date of the arrest.

Under this statute, if a misdemeanor charge resulted in a dismissal the arrest records could be expunged. Dismissal could result if the trial court granted a motion to suppress evidence and the case was dismissed. If a motion for directed verdict was granted the arrest is subject to an expunction. Any termination of a misdemeanor prosecution that did not result in a conviction or probation (including deferred adjudication) can be expunged. In other words, no probation, regardless of the type or whether it was successfully completed, is expungable.

Next week we'll look at felony arrest records . . . much more difficult to expunge! If you have a misdemeanor arrest that might be expungable, call a Brazos County criminal defense lawyer to explore your options.

Deferred Adjudication and Non-Disclosure Unraveled

Many people have heard of deferred adjudication. Deferred adjudication typically occurs by way of a plea bargain when the accused person pleads guilty to an offense, but the judge "defers" a finding of guilt while the person is on probation. Assuming the person complies with the terms of their probation and completes deferred, the original guilty plea does not result in a conviction and the charge is "dismissed."

The average client believed when they completed deferred adjudication successfully, their "criminal record" would be wiped clean. In other words, after being discharged from deferred, the average client (and even some lawyers) thought the charge was set aside with a finding of not guilty and, therefore, the arrest and charging records would not not be available to the public. Some people even believed a person who successfully completed deferred was eligible for an expunction of their records.

Regretfully, this misunderstanding often came home to roost when folks found out these records were available to the general public in any courthouse. The records were also available through the Texas Department of Public Safety. Making matters even more difficult for clients was the plethora of Internet providers who purchase criminal history data from the state's and make the records available on the Internet.

However, the Texas legislature finally realized that persons who received deferred adjudication and completed probation successfully needed relief from the stigma attached to having pled guilty to a criminal offense. Consequently, it passed a law allowing for an "Order of Nondisclosure" in certain cases when deferred had been completed. The law stated: "After notice to the state and a hearing on whether the person is entitled to file the petition and issuance of the order is in the best interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information relating to the offense giving rise to the deferred adjudication." Tex. Gov't Code sec. 411.081

A person who received deferred adjudication for a misdemeanor can often petition the court for an Order of Nondisclosure immediately upon the successful discharge from probation. However, there is a two-year waiting period following the completion of probation for persons on deferred for indecent exposure, public lewdness, disorderly conduct, obstructing a highway, false report, interference with an emergency telephone call, harassment, cruelty to animals, unlawfully carrying a weapon, or making a firearm accessible to a child. All persons who received deferred adjudication for a felony charge must wait five years before becoming eligible for a nondisclosure order.

During the waiting period, the person must not have been convicted of, or placed on deferred adjudication for, any offense "other than" an offense that resulted "only" in a fine under the Texas Transportation Code. A person shall not be granted an Order of Nondisclosure if that person has been previously convicted or placed on deferred adjudication for any of the following: (1) An offense requiring registration as a sex offender; (2) Murder, capital murder, injury to a child, elderly or disabled, endangering a child, violation of a protective order, stalking, or aggravated kidnapping; or (3) Any other offense involving family violence.

If an Order for Nondisclosure has been issued, information is not available by a public records request. A person who has obtained a nondisclosure order may deny the occurrence of both the arrest and prosecution to which the information relates "unless it is being used against that person in a subsequent criminal proceeding." All private entities that collect and compile criminal histories must comply with nondisclosure orders or face penalties and/or prosecution for releasing information in violation of the order.

If you believe you might be eligible for an Order of Nondisclosure, don't hesitate to contact the Bryan|College Station Expunction Attorney to discuss your options.