Today the interlock, tomorrow...

Senator Frank Lautenberg (D.-NJ) and Senator Tom Udall (D.-NM) have introduced the Drunk Driver Repeat Offender Prevention Act that would require states to mandate the installation of an ignition interlock device in the car of anyone convicted of driving while intoxicated. The device would have to remain in the car for at least six months.

According to the proposed legislation if a state refused to go along with this new federal mandate it could lose some federal highway funding. This is the same method Congress used to "convince" the states to raise their drinking ages t0 21 and to lower the states' per se definition to an alcohol concentration of .08 and higher.

“We know that 50 to 75 percent of drunk drivers continue to drive on a suspended license because they can. With an ignition interlock, DUI offenders can still go to work, school, or anywhere else they need to go. They just can’t drive drunk.” -- Jan Withers, MADD national board member

The goals of the legislation may be laudable, but the means of achieving them is not. First, it is not against the law in any state for a motorist to consume an alcoholic beverage and drive a car -- provided the motorist is not intoxicated or has an alcohol concentration below a certain threshold. Second, the installation of an interlock device will not prevent a person from driving another vehicle. Third, driving while intoxicated is not a federal crime (except in some limited circumstances) and the federal government has no business dictating how states punish acts that violate their own criminal statutes.

In Texas many courts require an ignition interlock device be installed before a restricted license will be issued to a motorist who has been convicted of driving while intoxicated. The motorist could lose his license if the device detects any alcohol. A court may also order the installation of an interlock device if a motorist's license suspension is probated by the court. In that case, the motorist could face a motion to revoke probation if the device detects any alcohol. But what about a motorist who pleads guilty, receives time served and never applies for a restricted license? What sanction could a court place on that motorist?

Maybe the next step in this assault on personal liberty and our constitutional rights will be a bill forcing states to place all motorists convicted of DWI on probation. How palatable is that option?

A chicken in every pot and an interlock in every car?

As Congress debates the level of highway spending for the upcoming year, the Alliance of Automobile Manufacturers has suggested that Congress spend $30 million to develop devices to detect alcohol in drivers. The Insurance Institute for Highway Safety estimates that if everyone who had a blood alcohol concentration of .08 or higher was prevented from driving that 9,000 highway deaths a year could be prevented. 

At a hearing on Monday of the Commerce, Trade and Consumer Protection Subcommittee of the House Commerce Committee, the auto manufacturers’ vice president for vehicle safety, Robert Strassburger, cited figures from New Mexico, which mandates interlocks after a first drunken-driving conviction. Alcohol-involved crashes in New Mexico are down 30 percent, injuries 32 percent and fatalities 22 percent, he said.

Our friends in the automotive industry are not necessarily proposing that every new car come installed with an interlock device. They are, however, proposing that the money be spent to develop passive technologies to prevent impaired drivers from starting their cars. Matthew Wald, the author of the New York Times "The Nuts and Bolts of Whatever Moves You" blog writes that:

No one is proposing a breathalyzer in every car. The auto and insurance industries are already involved in a cooperative research program to develop passive monitoring systems. Blood alcohol can be measured by bouncing light, in the near-infra-red wavelength, off the skin of a driver. It can also be measured by the sweat on the skin, or by analyzing eye movements.

I want to know how these detection devices would be calibrated? How would they be monitored? Would they operate like a "black box" and store information that could be downloaded by law enforcement as part of an investigation? Is this just another attempt at circumventing our freedom in the name of public safety?

What questions do you have?

Judges to receive ignition interlock "training"

The Texas Center for the Judiciary is offering an ignition interlock device workshop for Texas judges entitled "Blow 'n' Go" in May up in Dallas. The workshop is funded by a grant from the Texas Department of Transportation to "increase the effectiveness of DWI adjudications in Texas."

MADD is listed as one of the Texas Department of Transportation's Traffic Safety Program Partners according to the Texas Center for the Judiciary's website.

According to the Texas Department of Transportation's Traffic Safety Goals for 2010, traffic safety grants are to be used "to improve adjudication of DWI cases through improved training for judges, administrative license revocation judges, and prosecutors, and improved support materials for judges and prosecutors." In other words, the grant money is to be used to align judges and prosecutors on the same side of the fence. And, here all this time I thought the judiciary and the executive branches were supposed to be separate.

"Reluctant to rely on breath testing devices as a supervision tool?"

"Have you heard lots of plausible excuses from defendants to to why the device failed?"

"This practical workshop covers ignition interlock laws, separates fact from fiction, and dispels urban myths." 

-- promo material for Blow 'n' Go

Warren Diepraam, late of the Harris County DA's Office (now with the Montgomery County DA's Office) will present a lecture on the law regarding ignition interlock devices. According to the promotional materials "ignition interlocks have emerged as a powerful tool in keeping DWI offenders from driving drunk." Mr. Diepraam will instruct the judges as to the law and "the politics behind Texas interlock statutes."

Four manufacturers (Smart Start, Draeger, Guardian, and LifeSafer) will then present a panel discussion about their products, services, support materials and how they work with offenders. I'm sure the presentation will include discussions on error rates, calibration problems and false postive readings.

The judges will then learn how to draft the "perfect order" once they have decided the interlock device is appropriate in a particular case.

At lunch the judges will hear from the Texas Transportation Institute about their recent ignition interlock survey and will have the opportunity "to conduct personal 'field' research on some of the urban myths relating to ways to defeat interlock and breath-testing devices."

The judges will then hear how Denton County "created a system to efficiently deal with DWI ignition interlock compliance and monitoring" from arrest to termination of probation. 

The judges will also learn how to conduct a Kelly/Daubert hearing after a lock-out (occurs when the device detects alcohol in the driver's breath and locks the ignition) to determine if the ignition interlock operates on junk science or not.

Nowhere during the seminar is there a presentation from a defense attorney, nowhere is there a presentation questioning the accuracy and reliability of the ignition interlock device and nowhere is there any balancing viewpoint. If this were a workshop for prosecutors I would understand -- after all, we don't invite prosecutors to present at defense seminars -- but the judiciary is supposed to be neutral.

Is there anyone else out there troubled by this?

MADD about interlocks

An Ohio state legislator has introduced a bill to make ignition interlock devices mandatory for citizens convicted of driving while intoxicated, even first-time offenders. Currently the decision whether or not to order a citizen to install the device rests with the court.

This proposal is in line with MADD's Campaign to Eliminate Drunk Driving. MADD is pushing for a national requirement that all citizens convicted of driving while intoxicated be ordered to install an ignition interlock device in their cars. But that's not all that MADD is pushing.

MADD also supports the mandatory installation of ignition interlock devices, or other devices to detect the presence of alcohol, on all cars. Nevermind that it's not against the law to have a drink and then drive a car -- provided you haven't lost the normal use of your mental or physical faculties or that the alcohol concentration in your body is less than .08 percent.

Interestingly enough, the Alliance of Automobile Manufacturers, General Motors and Toyota are platinum-level MADD sponsors and Volkswagen is a silver-level MADD sponsor.

Who would calibrate these devices? How often would the owner of the car be required to have the device calibrated? Who would monitor the information? Who would have access to it? What about a car that is shared by one or more people? If such technology were mandated, what about the Fourth and Fifth Amendments?

Is it really a good idea to sacrifice our liberty at the altar of public safety? 

• See Arizona DUI Attorney Dan Jaffe's thoughts on MADD's latest proposal.
  
• Here's what California DUI Attorney Lawrence Taylor had to say about the MADD campaign.
  

Another day at the Criminal (In)justice Center

REPEAT AFTER ME... don't blow in the Intoxi-liar.

Had a client with a good video who blew a .10. The jury thought the arresting officer was a jerk. They knew he had been fired from HPD for something really bad since the prosecutor rose to object everytime I got near the subject. The jurors didn't think my client should've been arrested at the scene. We obtained all sorts of concessions from the technical supervisor - he admitted he couldn't say whether the test was higher, lower or the same as the BAC at the time of driving, he admitted he couldn't testify that the test result was accurate, only that it was valid, he said that with the drinking facts admitted by my client it would be impossible for his BAC to be over .08.

But, at the end of the day, the jury found my client guilty because they couldn't get past the breath test.

If the cops offer you a breath test, refuse it. Let the prosecutor say that a refusal is evidence of guilt. Deal with the hassle of fighting the license suspension. Just don't give the cops any more evidence than you have to.

KEEP YOUR MOUTH SHUT. Had a client who was given probation on a DWI. By mistake, the court's conditions of probation indicated he had to have an Interlock device installed on his car. I spoke to the court's probation officer and we had the court's docket sheet pulled. Sure enough -- nothing about an Interlock device was listed on the terms of probation.

The court's probation officer calls my client's probation officer to let him know my client needed to come to the courtroom on Monday to sign the amended conditions of probation -- but, for some reason I guess I'll never know, my client told his probation officer he had consumed alcohol while on probation. Oops.

The judge decided against jail time -- but decided to order an Interlock device installed on my client's car.

I CAN'T MAKE THIS STUFF UP. Check out this article and see what else has been lost in the Houston Police Department property room.