Judge Chided for Barring DWI Prosecution Deferral

     HOUSTON (CN) – A county judge improperly dismissed nine drunken driving cases because he opposes prosecution deferral, a Texas appeals court ruled.
     When a driver is charged for the first time with class B misdemeanor for driving while intoxicated, the Harris County District Attorney’s Office offers him the chance to avoid prosecution by participating in a program called Divert, short for Direct Intervention Using Voluntary Education, Restitution and Treatment.
     Participation requires the defendant to plead guilty plea, waive his right to a jury trial and agree to punishment. The defendant must get then treatment, take education classes, install an ignition lock on their vehicles and perform community service.
     If they complete the program successfully, Harris County dismisses the DWI charge. If they violate the terms, however, they are found guilty and face a preapproved sentence.
     Judge William Harmon presides over the Harris County Criminal Court at Law No. 2. He is one of 15 Harris County criminal judges, and the only one who has refused to put first-time DUI offenders into the Divert program.
     Harmon has repeatedly stated in open court that Divert is illegal because Texas bars deferred adjudication for those charged with a DWI.
     Claiming that their prosecution in Harmon’s court would violate their constitutional rights to equal protection, nine DUI defendants moved to dismiss the charges against them. Harmon granted the motions and dismissed each case on Dec. 13, 2011.
     The judge based his dismissal on the testimony of Assistant District Attorney Roger Bridgewater, chief of the Divert program.
     Bridgewater testified that his office had held a pilot pretrial diversion program for drunken drivers with mental health issues, separate from DIVERT.
     Four or five people participated in the short-lived program, which was shuttered for a lack of resources.
     Harmon found that this pilot program tried “to convey some sort of special opportunities to some selected defendants [and is] complete evidence of invidious discrimination exercised by the District Attorney’s Office in showing favoritism to some defendants, and I’m going to grant the motion to dismiss for violation of the equal protections under the 14th Amendment of the United States Constitution as well as the Texas Constitution.”
     The county appealed each dismissal, and a three-judge panel from the 14th Court of Appeals reversed and remanded all nine cases on Thursday.
     The panel used the case of defendant who was charged with misdemeanor DWI on Oct. 11, 2009, as a template for reviving all nine cases.
     “The trial court believed that the HCDAO was using the above-described pretrial diversion pilot program as a means to provide ‘special opportunities’ to selected defendants,” Chief Justice Adele Hedges wrote in the 10-page ruling. “But nothing in our record reflects that any defendant placed into this pilot program was similarly situated to appellee, i.e., that any of these defendants was eligible to participate in the Divert program. . . Indeed, appellee admits in his motion to dismiss that he was  offered and accepted into the Divert program, while the pilot program  existed for defendants [who] were not eligible for Divert.”

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