Interlock Update (cont'd)

The Court of Appeals determined that it did have jurisdiction to hear the direct appeal of an order granting ODL, and then reviewed the statutory authorities and concluded that "the trial court did not have authority to impose the requirement of an ignition interlock device, and its requirement that appellant have an ignition interlock device installed on his car was without reference to any guiding rule or principle."

The Court of Appeals then modified the trial court's order to delete the provision requiring breath interlock device as a condition of the ODL. Read the full text of the opinion here.

NOTE: As a result of this opinion, the presiding judge may accomplish the same result by ordering interlock as a condition of the defendant’s appearance bond instead.

Appellant was arrested for driving while intoxicated. He refused to provide a specimen of his breath for testing, and his driver's license was suspended. See Tex. Transp. Code Ann. § 724.035(a) (Vernon Supp. 2008). While his DWI trial was pending, appellant filed in district court a petition for an occupational driver's license under chapter 521, subchapter L, of the Texas Transportation Code, alleging an essential need for him to operate a motor vehicle. See id. § 521.242 (Vernon 2007). On October 4, 2007, the trial court held a hearing on the petition. See id. § 521.244. Appellant testified he needed to drive to get to and from his employment and to have visitation with his children. He also testified he had no prior convictions for driving while intoxicated or for any alcohol- or drug-related offense. Appellant requested that the trial court not impose the installation of an ignition interlock device as a condition for the occupational license. At the conclusion of the hearing, the trial court granted appellant an occupational license as necessary for him to attend work and have visitation with his children. The court also required that appellant have an ignition interlock device installed on his car. On appeal, appellant contends the trial court had no authority to impose the requirement of an ignition interlock device on appellant's occupational license.

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Interlock Orders (cont'd)

In some counties, the presenting judge does not enter a separate order relating to the installation of the device, but merely includes a provision in the order granting probation requiring the installation of the device. Most judges agreed that it is better practice to use a separate order because it allows the judge to tailor the conditions to more closely fit individual circumstances of each defendant’s case.
We have provided links to two orders currently being used for that purpose. The first is used by the Harris County Criminal Courts and is a multi-use order which can be tailored for use as a bond condition, condition of community supervision, or otherwise. (Get it here). In Harris County, a copy of this multiform order is given to the defendant, pretrial services or community supervision, the clerk, and DPS. Harris County also uses a written order when the ignition interlock device is removed. DPS regulations require that the breath interlock companies not remove a device that has been ordered to be installed until the presiding judge orders removal. Different vendors interpret these regulations differently. Some vendors will simply require that the judge, probation officer, or any other court personnel notify them by phone that they have authorized removal of the device, while other vendors will require a written order of removal.

The other form order provided is used by Judge Denman in Brazoria County for situations in which the judge is mandated to order a breath interlock device under Penal Code Section 4909 (h). (Get it here). This is the section that requires the installation of breath interlock devices for all defendants who have a second or subsequent conviction within the last five years, even if the defendant is not granted probation.

The judicial discussion groups, in considering what provisions the "perfect" ignition lock order would contain, came up with the following summarized list of suggestions:

1. Designate the section of the Code applicable to Defendant's case.
2. Order that defendant install the device on all vehicles owned or operated by the defendant, even if defendant claims not to own a vehicle.
3. Consider restricting defendant to curfew times or permissible hours except during emergency.
4. Defendant must notify employer of his requirement to have device installed on his personal vehicle.
5. Consider changing the frequency of court monitoring and calibration for compliance violations.
6. Consider ordering a specific installation date. Statute requires within 30 days, but defendant’s circumstances may warrant a shorter time period.
7. Consider an instruction that defendant attend vendor education program and comply with all of vendor instructional materials (handbook, DVD) in order to reduce false positives and other excuses for non-compliance.
8. Consider ordering the vendor to reduce the percentage of alcohol tolerance. DPS regulations currently require alcohol tolerance levels to be set at .03. Judges who had these devices installed on their vehicles, went out to dinner and had several drinks over a period of several hours were able to start their vehicles and drive home despite the alcohol ingestion because of the .03 level. Several of them reported feeling uncomfortable that defendants, especially repeat offenders, would be able to consume several drinks and still drive, and stated that they would contact the vendors in those instances to have the alcohol tolerance level lowered for those defendants. Although DPS regulations require the level to be set at .03, this does not take away the judge's discretion to lower the level for a particular defendant.
9. Require defendant to provide written proof of installation within the time period ordered. Some judges actually set a status hearing and allow the defendant to avoid hearing by providing written proof of installation. This shifts the burden from pretrial services or community supervision to check on timely installation.
10. Require the defendant to notify court personnel if the defendant changes vendors.
11. Require defendant to provide a specimen of breath, blood or urine for analysis upon the request of any law enforcement officer.
12. Require an ignition interlock device with a camera to verify the person who is providing the breath sample.
13. Especially if no camera device installed, require that defendant is responsible for all test results from the device to eliminate the excuse that someone else provide the breath sample.
14. The order may NOT provide that the defendant use any specific company or provider. Also, remember that defendant’s employer’s vehicle is exempted, except in cases where it can be shown that the defendant is self-employed.

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