Getting a Deep Lung Device Off Your Car

April 28, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

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.

Here are the times when when an ignition interlock device is legally required in Texas.  But 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.

When a Deep Lung Device is Required by Texas Law

March 7, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

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.