The Harris County District Attorneys Office's DIVERT Program, a pre-trial intervention style program for qualifying DWI Defendants, has been praised by a variety of parties,
including the editorial page of the Houston Chronicle. One local judge, however, has found it to be unconstitutional -an event that seems to have, thus far, escaped local media attention.
On October 28, 2011, Judge Bill Harmon of Harris County Criminal Court at Law Number Two found the DIVERT Program to cause a violation of this Defendant's 14th Amendment to the U.S. Constitution's guaranty of equal protection. (To review the legal issues presented, click to view the
accused's motion and the
state's response). The Defendant, Rochelle McNutt, had previously attempted to have Judge Harmon recused from the case on account of his
well publicized hostility to the program, but was unsuccessful. (Judge Harmon believes DIVERT is actually deferred adjudication, which is prohibited by statute in DWI cases.) The State of Texas has yet to file a notice of appeal.
The State of Texas has twenty days, or until November 17, to appeal Judge Harmon's ruling. An appeal is a virtual certainty as otherwise any Defendant charged with DWI in County Criminal Court at Law Number Two will follow the same course of action and seek to have their case dismissed by Judge Harmon. It would be foolish not to.
The State timely filed notice of appeal. The case has been assigned to the First Court of Appeals, one of two intermediate state appellate courts in Houston.
Presently, Harmon's ruling potentially affects no one other than this Defendant and other Defendants in his Court who file a similar motion, who can expect a similar appeal. Unless other judges adopt a similar stance, it benefits no one else.
If the appellate court upholds the ruling, it may cause problems for the program in more courts and/or cause the District Attorney's office to simply do what the Defendant suggested - dismiss cases in Court 2 for re-filing or create a different type of pretrial intervention for some or all eligible DWI Defendants. If Judge Harmon is reversed, there may be either no change at all or he may be moved to 'get with the program.' The consequences of a reversal may fall solely on Ms. McNutt and those who imitate her tactics, whose charges will once again be pending - for trial, plea bargain, or dismissal.
The Fourteenth Court of Appeals, in a different case, ruled that the Administrative Judge for this area, Judge Olen Underwood's decision not to recuse Judge Harmon in a DIVERT case was correct one. The Defendant's argument was that Harmon should have been recused because he couldn't consider the full range of punishment. The opinion makes clear that pretrial intervention programs, of which DIVERT is one, are not punishment, and therefore recusal was not required.
It's back - by another name, but I will write more about that soon.
Individuals charged with DWI in Harris County, should contact an experienced DWI Defense Lawyer, to advise them of their rights and responsiblities in any prosecution or administrative license revocation proceeding, including the DIVERT program.