Getting a Deep Lung Device Off Your Car

April 28, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

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.

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Dealing with a Probation Officer

April 19, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Probation officers have a hard job.  They deal with many difficult people going through difficult times in their lives.  Probation officers can be your ally or they can be your enemy.

I’m frequently asked by clients and potential clients about how to handle certain situations with a probation officer.  Sometimes it may be appropriate to involve your lawyer but sometimes that can backfire unintentionally.

Probation officers are people too.  Like most people – they don’t react well to being challenged by a probationer or by a lawyer.  Some probation officers will retaliate harshly when their actions are called into question.  In Texas, the probation officers technically work for the judges… but judges want to stay out of the day-to-day monitoring of probationers.  If it seems as if it is a situation where the judge will not be interested — or if it’s an area where the judge and prosecutor will traditionally back up the probation officer, the better course of action may be to tough-it-out with the bad situation.

This doesn’t mean you should subject yourself to an abusive probation officer, however.  You should contact an attorney if you feel like the terms and conditions of your probation need to be modified to avoid an abusive situation.  Also remember that your right to remain silent isn’t checked-in at the door.  In Texas, you do not have to incriminate yourself with regards to other offenses or violations the probation officer may want to question you about.

Sometimes the probation officer can be a valuable ally.  Once in a while, a prosecutor will attempt an aggressive approach to a revocation or adjudication proceeding and the probation officer — who knows the accused far better may disagree.  Having the probation officer on your side can convince the prosecutor to take a different approach or even help convince the judge that the prosecutor is wrong in their assessment.

It goes without saying, but always do your best on probation and always do your best to get along with your probation officer.  They are people too with the same pressures and shortcomings we all have.

*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.

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New Photo-Lineup Bill May Become Texas Law

March 25, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The Texas legislature is considering measures to give force all law enforcement agencies conducting photo-lineups to have uniform standards and uniform procedures.

This article summarizes the problem and the situation.  Texas has had an atrocious record of wrongful convictions, and the statute is designed at eliminating one of the root causes — photo lineups that are not done correctly.  Experts agree that often the person administering the photo lineup can consciously or subconsciously influence the witness.

The measure will not entirely invalidate photo-lineups that don’t comply, however.  As long as the lineup “substantially complies” with state law, it will still be legal.  This clause takes a lot of bite out of the law, but it’s a step in the right direction none-the-less.

*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 pertaining to any legal matter you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Can a Drug Conviction in Texas Impact Financial Aid for College?

March 19, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Yes.  Here is a great article I found recently on the topic which discusses some of the far reaching collateral consequences of marijuana convictions all across the country.  Collateral consequences of convictions range from eligibility to be a foster or adoptive parent, gun ownership eligibility, or difficulty in receiving federal financial aid.

The article points out that under 20 U.S.C. 1091(r), a student that is convicted under federal or state law is not eligible for federal financial aid for 1 year for a first conviction, two years for a second conviction, or an indefinite period for a third conviction.

Keep in mind that under Texas law, deferred adjudication means that a person is not convicted.  Although, some federal agencies do not recognize deferred adjudication (such as in immigration proceedings for example).

Before accepting a deferred adjudication or conviction for marijuana offenses, be sure you have been thoroughly advised by your attorney.

*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 specific situation, you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

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

texasdefensefirm.com

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.

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