By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
(972) 562-7549
All driving while intoxicated arrests in Texas require that a person see a magistrate judge. That judge is required by law to make an initial assessment and to decide whether to order the defendant to have an ignition interlock device (also known as a deep lung device) under Texas Code of Criminal Procedure 17.441.
Here is the relevant text of 17.441:
“(a) Except as provided by Subsection (b), a magistrate shall require on release that a defendant charged with a subsequent offense under Sections 49.04-49.06, Penal Code, or an offense under Section 49.07 or 49.08 of that code:
“(1) have installed on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant, a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and
“(2) not operate any motor vehicle unless the vehicle is equipped with that device.
“(b) The magistrate may not require the installation of the device if the magistrate finds that to require the device would not be in the best interest of justice.
Section 17.441 can be read to state that a judge can only order the interlock device on a vehicle if it’s the 2nd DWI arrest (or more) of the defendant. The judge can find that an interlock ignition device is not appropriate in the best interests of justice even on a 2nd arrest.
In reality, Judge’s interpret the law to state that they can always place an interlock device on a car but are only required to do so on a 2nd offense. It is unclear whether they are interpreting 17.441 as the basis for their beliefs of some other statute. Additionally, many Collin County judges have informal policies that if a defendant had a car accident or was charged with the new offense of DWI with a blood alcohol concentration above 0.15, then they will order the deep lung device as well.
Ultimately deep lung devices are becoming more and more common as terms and conditions of bond in Collin County. Arrest and going before the magistrate is not the only time in a case where a judge may have an opportunity to order the deep lung device as well… the judge can order the defendant get one when the defendant applies for an occupational license due to a driver’s license suspension, during a guilty plea, or if a jury convicts the defendant.
*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. Contacting the attorney through this blog does not create an attorney client relationship and communications through this blog are not confidential.
