By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
The most common complaint I get about the deep lung device (also known as an ignition interlock device) is not the hassle, not the cost, but is that is a very cruel and degrading mark of shame.
Whether it’s increased legislative requirements or increased pressure from mothers against drunk driving, these devices are becoming more and more popular with judges.
If you’re reading this, chances are you want to know how to get the thing OFF your car with the Judge’ permission.
The first question is whether the Judge has discretion to order the device removed. Discretion is just a legal term meaning that the law allows the Judge to decide one way or the other. For example, in a situation where it is a second DWI arrest, the accused must legally have the deep lung device installed on the car pursuant to Tex.Code.Crim.P. 17.441. But, under Texas.Code.Crim.P. 42.12 Section 13(i), the Judge may allow a probationer to have the interlock device removed after 50% of the probation is complete.
If the judge has the legal discretion to remove the device, the next step is to convince him or her that this is appropriate in your case. Here’s the key in Texas — private companies monitor the ignition interlock devices and they keep a detailed log of whether there have been any violations or if the car is under-utilized which indicates the driver may be driving another vehicle and avoiding blowing into the apparatus. Virtually any judge that I know would ask to see the records from the log. This means that to have a good chance of getting the deep lung device off your car — you have to have as clean a record as possible. Also keep in mind that probation officers and the personnel that monitor these devices are highly cynical. Some will take any failure – regardless of the cause – as proof that the driver has been drinking.
Even with a clean record, it’s no guarantee that your judge will allow the apparatus to be removed, but you’re not giving yourself a chance to get rid of the humiliating device with a dicey record.
You should consult with your attorney as to when it is appropriate to ask the Judge to have a deep lung device removed from a car.
*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 should be considered legal advice. For legal advice about any specific situation, you should contact an attorney directly.