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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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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Posted by Jeremy Rosenthal, Esq.

Should I Take the Field Sobriety Tests?

February 5, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

No.

I’ve put a lot of time and thought into the answer and here’s why I’ve ultimately come to that conclusion:  because experience tells me most of the time the officer has already made his decision to arrest you by the time he asks you to take the field sobriety tests.  So no matter how well you do, you’re not being graded by a fair judge.  You’re being graded by someone who already decided you’re going to jail.

If you’re reading this because you were arrested for DWI and you took the field sobriety tests — don’t feel bad at all about your decision.  It’s a common one and there are plenty of decent reasons to submit to them.  I just feel that in totality — the bad outweighs the good — and I’ve had a lot more time and experience with these cases than you had before you were asked to take the tests!

Most people who submit to field sobriety tests do so for two main reasons.  First, is that they don’t know they have the right to refuse.  In Texas, a person absolutely has the right to refuse.  Second, the person thinks they’ll somehow show the officer that they’re okay to drive (again, what they don’t know is changing the officer’s mind is an impossible task).

Police play into the second reason very heavily.  Remember, deception is a legitimate tool of law enforcement.  Police officers have extremely honed skills at manipulating people to comply with their requests — even though the citizen has no obligation to do so.  Field sobriety tests are a classic example.  Here’s another example — ever been asked by a police officer that just pulled you over if you know why he pulled you over?  It’s a game of “gotcha” and now you can’t fight the ticket if you answered!  When an officer asks you to take the tests to see if “you’re okay to drive,” it may sound like he’s thinking of letting you go — but odds are that it just sounds that way!  Only the officer really knows — and you have no way of knowing if he’s already called the tow truck for your car.

There are some down sides to refusing field sobriety tests too.

First is that you’re basically daring the officer to take you to jail.  Most will take you up on it.  You’re basically gambling that even if he takes you to jail that you’ll be able to beat the DWI in court by not providing any evidence knowing the State has the burden of proof.

Second is that you’re possibly making yourself the” bad guy” in front of the jury by not complying with the police.  Most jurors ask themselves whether they would take the tests or not and even though most don’t have well informed opinions, most would take the tests… but ultimately, being the “bad-guy” can be overcome.

Third is that there’s always the chance that you’ve run into a policeman that hasn’t made up their mind.  It’s probably the exception and not the rule — but it does happen.

Finally is that jurors put more stock in how you look generally on the video than how the officer testifies you did on the field sobriety tests.  If you look good taking the tests but the officer says you still failed — jurors will doubt the officer’s testimony.

*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 specific legal advice about any situation, you should consult an attorney directly.

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Proposed DWI Deferred Will Only Feel Better for 1st Timers

January 18, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The 2011 Texas Legislature has a bill before it that would give 1st time DWI offenders the opportunity to get Deferred Adjudication according to this Dallas Morning News article. What can a first-time DWI arrestee expect in this bill crafted by Texas Prosecutors and MADD in exchange for pleading guilty?  Not much.

Remember, Deferred is where someone pleads guilty but the Court defers the finding of guilt while the person completes probation.  If the person completes probation successfully, then the charges are “dismissed” without a final conviction ever being attained.  I put the term dismissed in quotes because even though that’s the term used by the statute, the legislature gave it a special definition that most people speaking English would derive from it’s use — it’s really only a document confirming probation is over.

When someone completes deferred and their case is “dismissed,” then the person’s arrest record, court records, and probation records stay completely in tact and are routinely sold to private companies for public uses on job search applications, housing applications, or loan applications (etc.).  Only when someone applies for a petition for non-disclosure two years after the “dismissal” AND a Judge determines it is in the best interests of justice can the person’s file not be sold by the State.  But law enforcement, of course, gets to keep it and share it with practically any other entity that is affiliated with the State such as school boards and professional licensing agencies.

And according to the Dallas Morning News Article, the DWI Deferred proposal has even less benefit than a normal deferred.  For this program, if you plead guilty and get deferred it counts as a conviction for the purposes of enhancement.  Also there seems to be no other lessening of punishment in any way as far as interlock devices or sur-charges.

Prosecutors and MADD miss the point with this deferred proposal.  The reason deferred would help clear the dockets is that it would give an accused something to actually lose by contesting the charges.  About the only benefit with this proposed law is that someone can say they’ve never been convicted of DWI.  I guess that’s something, but it doesn’t do much more than make someone feel a little less guilty if they accept responsibility for a DWI that they’re guilty of.

*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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Posted by Jeremy Rosenthal, Esq.

Texas Legislature to Consider Deferred Adjudication for DWIs

December 27, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

The Texas legislature is likely to discuss legalizing deferred adjudication for first-time DWI arrestees during the 2011 legislative session according to this Houston Chronicle Article.

In Collin County, people accused of a DWI currently have two options;

(1) plead guilty and usually be placed on probation (or in jail) and in doing so accept a final conviction accompanied by surcharges to keep a driver’s license to name just a few punishment measures.  This final conviction would be enhanceable for any subsequent DWI arrest.

(2) plead not-guilty with two possible outcomes; (a) an acquittal entitling them to an expunction; or (b) a conviction along with all the headaches discussed in the paragraph above.

If deferred adjudication is added as an option, it could play-out in a number of different ways.  Though it would technically result in a “dismissal” at the end of the deferred period, it is only an actual “dismissal” in a technical sense.  The person would likely only be eligible for a non-disclosure, not an expunction.  This means it would be on the persons permanent record with the person being allowed to say that even though they plead guilty, it was not a final conviction.

Also another common trap-door the legislature likes to use is by making deferred adjudication a conviction for enhancement purposes.  This means that a subsequent DWI arrest would be a DWI 2nd and so on.  So basically the first one counts against you deferred or not.

Keep in mind that if Mothers Against Drunk Driver’s is for a plan to go ‘easier’ on people accused of DWI — you can be assured it’s for their gain and not the accused.

*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 specific legal advice about any legal issue you should consult an attorney directly.

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