Will a Deep Lung Device Be Required in a DWI Case

Our laws provide a number of ways to shame a person who has been arrested for a DWI. In addition to eliminating almost every avenue for removing a DWI arrest from your criminal history, the law provides judges with several opportunities to require an ignition interlock device installed on your vehicle (also known as a deep lung device or DLD). A DLD is a small but frustrating device installed on your vehicle which requires the driver to provide an alcohol-free breath sample before the vehicle will start. Generally, there are three occasions in a DWI case where the Court could require a deep lung device installed on a person’s vehicle.

First Occasion: A Condition of Bond

Texas Code of Criminal Procedure 17.441 instructs the Court when a DLD is required as a condition of bond. Technically, the only time the Court is required to order the DLD this early in the game is when a person arrested for DWI has a prior DWI on his criminal record. However, judges have wide discretion to place a variety of conditions on a bond that are not technically required by law. What this means is that even a first-time DWI offender can be subjected to a DLD device within weeks of an arrest.

Second Occasion: A Condition of an Occupational License

Most DWI cases involve a temporary driver’s license suspension. During the period of the suspension, an individual can and should apply for an occupational license to get to and from work and for other limited purposes. Petitioning the Court for an occupational license also gives the Court a second opportunity to require an individual to install a DLD device; it can be required as a condition of the occupational license. Technically the law only requires the DLD as a condition of an occupational license when the applicant has 2 prior convictions. The law gives the judge discretion to require the DLD when the applicant has only 1 prior conviction. The law seems to indicate that in no other situation is the judge required to or has discretion to require the DLD (namely when the applicant has been charged for the first time). Unfortunately, some judges try to require the condition on first time DWI applicants anyway.

Third Occasion: Condition of Probation

Finally, the Court can make a deep lung device a condition of probation. Chapter 42 of the Texas Code of Criminal Procedure requires the judge to order a DLD in two scenarios: (1) when an individual with a prior DWI is placed on probation for a new DWI, or (2) when the court determines that the person being placed on probation for DWI had a blood alcohol concentration of .015 or greater. In all other cases, the judge may decide to require the DLD for any reason at all.

Using the DLD to your advantage

In the unfortunate event that your case requires the installation of a DLD, you can use that to your advantage in a criminal prosecution. In the event you plea or are found guilty on a DWI charge, the judge, jury, or prosecutor will want to hear reasons for leniency. While anyone can swear up and down that they have either changed their behavior or that their particular charge was an isolated incident, an individual with a DLD is able to back this up with proof. Records of the alcohol-free specimens are available to the accused and can be used to sway the opinion of seeking to punish an individual charged with DWI.

Speak Your Mind