By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
Deep lung devices (also called ignition interlock devices) are devices installed on a cars ignition which requires a clean breath specimen in order for the car to start. Once the car is going, it randomly requires clean samples to continue.
I’m not sure exactly why, but deep lung devices are far more popular amongst judges today than they were even five years ago. Part of the reason is because the law now requires these to be ordered on cars — but even so, it seems as though many judges are ordering them when it’s discretionary (meaning the the law leaves the decision to the judge as to whether to order it or not).
There are several times during a DWI case that a judge might have the opportunity to order the deep lung device to be ordered on a car. First is upon arrest. Tex.R.Crim.P. 17.441 requires a magistrate to make the determination upon initial arraignment as to whether an interlock device is required. Although they are only legally required when a person is arrested for a subsequent DWI, the law allows the judge to order the device on the car anyway. Often if there is an accident or if there is a high breath test score (which the judge knows about), then that often serves as their rationale for ordering the device on the car.
A second opportunity for the Court to order deep lung device on a car is during sentencing. This is where the accused has either plead guilty or been found guilty after a trial. A device is required for 1/2 of the probationary period in a 1st DWI conviction if the driver’s blood/alcohol level is in excess of 0.15 or if it is a subsequent DWI conviction. Just the same as with the magistrate judge above, the judge controls the terms and conditions of probation — so even if there isn’t a breath test result above 0.15 or a subsequent conviction — the judge can order the device none-the-less.
A third time the Court would have the opportunity to order a deep lung breath analysis instrument is as a term of an occupational license. An occupational license is a Court -ordered license which allows an individual to drive while their driver’s license is suspended. Many judges will order the device as a condition of the occupational.
The Court can re-visit the deep lung device decision made by the magistrate during the case — if it was ordered in an instance that was discretionary.
The deep lung breathalyzer, while expensive, inconvenient and embarrassing can be used to your advantage during DWI proceedings. With the device, there is a clear record of your history of compliance with the Court’s order. If you have a device ordered on your car from the outset of your case — by the time the judge consider’s your sentence, you have objective and indisputable proof that you have been compliant with the court’s orders and are worthy of leniency.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact an attorney directly.