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Guest Post by Lauren Williams, staff writer for Randolph H. Wolf, New Jersey DWI Defense Attorney.
The Texas Code of Criminal Procedure in pertinent part – Tex. Code Crim. Proc. art. 17.441 – provides that a magistrate should require a defendant, upon the release of the defendant after being arrested for driving while intoxicated, to install an ‘Ignition Interlock Device’ onto his motor vehicle owned or usually driven by the defendant.
An Ignition Interlock Device is a machine that is connected to a vehicle’s ignition. It is like a breath-analyzer. It checks for the presence of alcohol in the driver and prevents the operation of the vehicle if the percentage of alcohol is more than the prescribed limit. The magistrate should also direct the defendant not to drive the vehicle unless the device is installed. The magistrate may not order the installation of the device if he finds that the installation is not in the best interests of justice. The defendant is usually directed to install the device within 30 days of his release on bond. Normally, the installation is done by an agency appointed by the Magistrate.
If a person is convicted two or more times under any combination of Section 49.04, 49.07, or 49.08 of the Texas Penal Code or if the person’s license has been suspended after a conviction under Section 49.04, for which the person has been punished under Section 49.09, the judge shall restrict that person from operating a motor vehicle unless the vehicle is equipped with an Interlock Device. (see The Texas Transportation Code – Tex. Transp. Code § 521.246). But the person may operate the vehicle if the person’s job requires him to drive the vehicle; if the owner of the vehicle is the person’s employer; the employer is not owned or controlled by the person whose driving privilege is restricted; the employer is notified of the restriction in the driving privilege and proof of that notification in the vehicle.
It should be specifically noted that the ‘conviction’ is necessary before imposing a restriction under Tex. Transp. Code § 521.246. In a 2009 case – Deleon v. State, 284 S.W.3d 894 – the Court of Appeals of Texas, Fifth District reversed a trial court’s order requiring the defendant to install the interlock device while awaiting his trial for a DWI offense holding that the trial court had no authority to require the defendant’s vehicle be fitted with an ignition interlock device before convicting the defendant.
The general rule is that the magistrates have authority to impose reasonable conditions on pretrial bail. In DWI cases, the magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community. But the condition must be reasonable and it must be made to secure the defendant’s presence at trial and related to the safety of the alleged victim or the community.
The Texas courts view the requirement of an interlock device as a ‘less severe infringement on the privilege of driving’ and it does not constitute punishment. In many cases, the courts held that the imposition of an interlock device is not oppressive.