Interlock Issues and Concerns contd.
Why is this important to Texas judges? MADD has made it clear that one of its major objectives for the upcoming year will be to emphasize not only the mandatory interlock orders required by statute, but the discretionary use of breath interlock devices where appropriate. For instance, New Mexico was the first state to require breath interlock devices for all convicted DWI offenders, whether first or subsequent. Recent statistics have shown a dramatic drop in alcohol related crashes and deaths in New Mexico, and a study is under way to determine the link between those numbers.
Since there have been some recent Texas cases highlighting breath interlock trial issues, and recent changes to the laws requiring breath interlock orders, I thought it might benefit us to review both the case and statutory law.
Case Law
Let's start with the most recent case because it is the one that may have the most immediate significance for those of you trying DWI cases on a regular basis. This is a case appealed from Denton County Court at Law to the Ft. Worth Court of Appeals. Even though this is a "Do Not Publish" opinion, I think it is instructive for us to pay close attention to the portion of the opinion that discusses the trial judge’s gatekeeper function when scientific evidence is offered.
Brock v. Texas, No. 2-06-452-CR., (Tex. Civ. App. 2nd Dist. Ft. Worth, Nov. 1, 2007).
On January 4, 2006, Appellant was speeding when she went airborne in her car and hit a tree. A witness called for emergency assistance, and an ambulance took Appellant to the hospital. A trooper who inventoried Appellant's car found a half-empty bottle of Chardonnay in it. A sample of blood was taken from Appellant at the hospital. The sample had an alcohol concentration of approximately .327. Appellant then left the hospital without checking out.
Appellant was charged by indictment on March 16, 2006, with the third-degree felony offense of DWI. As a condition of her pretrial release on bond, Appellant was ordered to install and maintain an ignition interlock device on her car and to “[c]onsume no alcoholic beverages.”
At trial, the State notified Appellant that it intended to offer evidence showing that Appellant committed a violation of the Smart Start ignition interlock device by failing a retest while the engine was running and by failing to provide a passing test before the engine was turned off. Appellant filed a motion to exclude the State's admission of the ignition interlock device evidence based on two grounds. First, Appellant argued that the ignition interlock device was not scientifically reliable to identify and accurately return a “positive” test indicating the presence of alcohol on Appellant's breath. Second, Appellant argued that the ignition interlock device was not scientifically reliable to establish that Appellant had consumed an alcoholic beverage in violation of her pretrial bond. The trial court overruled Appellant's motion, and therefore did not conduct a Kelly gatekeeper hearing.
Defendant was convicted and received an eight-year sentence (the County Criminal Court in Denton County has felony jurisdiction.) On appeal, Defendant claimed that the trial court erred by failing to perform its gatekeeping function and by permitting the State to introduce scientific evidence derived from use of an ignition interlock device without first requiring the State to meet its burden under Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992).
The Court of Appeals noted that the Court of Criminal Appeals has established only one exception to the requirement that the trial judge conduct a gatekeeper hearing prior to the admission of scientific evidence. "In Hernandez, the court stated that a party seeking to introduce evidence of a scientific principle need not always present expert testimony, treatises, or other scientific material to satisfy the first two criteria of the Kelly test. It is only at the dawn of judicial consideration of a particular type of forensic scientific evidence that trial courts must conduct full-blown ‘gatekeeping’ hearings under Kelly. Trial courts are not required to re-invent the scientific wheel in every trial. Some court, somewhere, has to conduct an adversarial gatekeeping hearing to determine the reliability of the given scientific theory and its methodology… if the court of criminal appeals, this court, or another Texas appellate court has already determined the validity of a particular scientific theory or technique, then the party offering the expert testimony need not satisfy Kelly's first two criteria. The trial court and a reviewing court can rely upon prior opinions and take judicial notice of those findings."
The Court went on to cite examples of scientific theory and methodology of which judicial notice may be taken: intoxilizer evidence, blood splatter evidence, and DNA analysis. The Court even noted that if a particular trial judge has previously conducted numerous Kelly hearings and determined that the scientific evidence underlying interlock devices is reliable, the judge or the State may put that in the record along with materials from those previous hearings and a Kelly hearing will not be required. In that case, the judge is, in essence, taking judicial notice of his/her own prior judicial proceedings.
The Court ruled that because the evidence offered by the State was scientific in nature, the trial court erred in failing to hold a gatekeeper hearing as requested by Appellant and as required by Kelly. However, after conducting a harm analysis, the Court found the trial court error to be harmless.
Other Interlock Cases of Note
Ex Parte Elliott, 950 S.W.2d 714 (Tex. Civ. App. 2nd Dist. Ft. Worth, 1997) pdr refused.
Breath interlock may be required as a condition of bond because it increases the likelihood of defendant's appearance at trial does not constitute punishment, is not oppressive, does not constitute a fine; and is not contrary to the presumption of innocence. Also, Code of Criminal Procedure Article 17.44 requiring breath interlock orders for all second and subsequent offenders is constitutional.
Ex Parte Kevin Sells, 01-99-00362-CR (Tex. Civ. App. 1st Dist. Houston, 2000) unpublished.
Appellant, Kevin Sells, was charged with the misdemeanor offense of driving while intoxicated (DWI). As a condition of bail, the trial court required him to install an ignition interlock on his car. Appellant filed an application for writ of habeas corpus seeking to have his information dismissed on the basis of double jeopardy. He contended that the federal and state prohibitions against double jeopardy should bar his prosecution for DWI, because he has already been punished by imposition of the interlock device and loss of his driver's license.
The Court held that the requirement of ignition interlock as a condition of bond is not unreasonable and does not constitute double jeopardy.
Kaylor v. State, 9 S.W.3rd 205 (Tex. Civ. App. 4th Dist., San Antonio 1999)
Defendant’s DWI probation was revoked based on the judge’s finding that he consumed alcohol in violation of the terms of probation. This finding was based on the results of the log of the breath interlock device placed on defendant’s car. It appears the only State’s witnesses at the hearing were the probation officer and the “systems administrator” for the interlock company. It does not appear from the opinion that any scientific evidence was introduced regarding the reliability of the interlock device. However, it also appears that no objection was made to the introduction of the interlock results based on Kelly or Daubert.
Defendant contended that this evidence was insufficient to revoke his probation because there was no evidence that he was the person with alcohol on his breath, or that he blew into the interlock ignition device on either July 23, 1998 or August 5, 1998. Although no one testified at the hearing that they observed Defendant consume alcoholic beverages, the evidence regarding the interlock results was not controverted. In the absence of any other explanation, the Court held that the trial judge could reasonably believe that the high readings recorded from Defendant's ignition interlock device resulted after Defendant consumed alcoholic beverages and then repeatedly blew into the device in an effort to start his car. Based on this reasonable belief, the trial judge could conclude by the preponderance of the evidence that Defendant violated the conditions of his probation by consuming alcoholic beverages. The Court ruled that the trial judge did not abuse his discretion and affirmed the judgment of the trial court.
Statutes
We now have access to a substantial body of research which demonstrates the effectiveness of using breath interlock devices to reduce alcohol-related crashes and the resultant property damage, injuries, and death. Following that research, there has been an increasing trend to not only permit, but to require the use of breath interlock devices, both nationally and internationally. This trend toward the increasing use of breath interlock devices is not isolated to the criminal justice setting. Many major international corporations are now beginning to install breath interlock devices on all of their fleet vehicles, especially in Europe. Much of the research on the use of breath interlock devices, both in the civil and criminal settings, has been conducted by a nonprofit corporation in Canada, the Traffic Injury Research Foundation, and is available at:
http://www.trafficinjuryresearch.com/index.cfm
The Texas Legislature has followed the national trend to require breath interlock devices both as a condition of bond and as a condition of probation for certain DWI offenders. A recent amendment to the Penal Code also requires a breath interlock device for certain offenders, even if they are sentenced to jail or prison.
It is an entirely foreign concept to us that the Legislature can impose a continuing duty on the trial judge relating to a defendant whose case has been disposed of by final sentence. That is the result of the recent amendment to the Penal Code, Section 49.09(h):
(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.
This statute purports to give the trial judge continuing jurisdiction over a defendant who is serving jail time or prison time on a second or subsequent DWI offense and requires the judge to not only order a breath interlock device on the defendant's vehicle, but to ensure that that device remains on the defendant's vehicle until one year after the mandatory suspension period is completed. When I first read the statute, the following questions occurred to me:
1. Can the Legislature give the trial judge continuing jurisdiction over a defendant whose case has been of disposed of by final sentence? In this case, that continuing jurisdiction may last for several years if the defendant receives a felony conviction and has several prior convictions within the last five years.
2. Should the order requiring the breath interlock device be contained in the sentencing document, or should the judge enter a separate order?
3. What is the best way for a judge to determine if his/her order is being complied with? Will you now need to establish a new procedure that requires the defendant to re-appear before you for a status hearing after the jail/prison term has been served?
4. The only way to enforce the statute is by contempt. Since a violation of the statute will constitute constructive contempt (outside the courtroom), will the State ever be able to allege and prove all the elements of constructive contempt when a violation occurs?
Other Statutes
The various statutes requiring judges to order interlock devices as a condition of bond, occupational license, or probation are scattered through the Code of Criminal Procedure and the Transportation Code. The following tables summarize those provisions:
LAWS RELATING TO IGNITION INTERLOCK REQUIREMENTS
Bond Conditions, CCP, 17.441
Driving While Intoxicated, Boating While Intoxicated, Flying While Intoxicated
|
Offense
|
Interlock Required
|
1st |
Discretion of Judge |
.15 BAC or higher |
Discretion of Judge |
Subsequent |
Yes, Mandatory |
Intoxication Assault, Intoxication Manslaughter
| Offense |
Interlock Required |
1st |
Yes, Mandatory |
Subsequent |
Yes, Mandatory |
As a Condition of Probation, CCP, 42.12
Driving While Intoxicated, Boating While Intoxicated, Flying While Intoxicated
| Offense |
Interlock Required |
1st |
Discretion of Judge |
.15 BAC or higher |
Yes, Mandatory |
Subsequent |
Yes, Mandatory, |
Intoxication Assault, Intoxication Manslaughter
| Offense |
Interlock Required |
1st |
Discretion of Judge |
.15 BAC or higher |
Yes, Mandatory |
Subsequent |
Yes, Mandatory, |
Defendants under 21 years of Age, if placed on probation, CCP, 42.12 (n) TRC 521.342 (b)
Driving While Intoxicated, Boating While Intoxicated, Flying While Intoxicated, Intoxication Assault,
Intoxication Manslaughter
| Offense |
Interlock Required |
1st |
Yes, Mandatory , |
Subsequent |
Yes, Mandatory, |
Condition of Issuance of Occupational License, TRC 521.246
If Defendant has been convicted of an offense of DWI, Intoxication Assault or Intoxication Manslaughter
| Offense |
Interlock Required |
1st |
Discretion of Judge |
Subsequent |
Yes, Mandatory, |
Code of Criminal Procedure, Art. 42.12 Community Supervision § 13 DWI Community Supervision amends subsection (1) to require as a condition of community supervision that the defendant drive with an ignition interlock device if the defendant had an alcohol concentration level of 0.15 or more.
These statutes place an affirmative duty on the judge to determine the defendant’s prior criminal history before issuing an order granting probation or setting bond. Since the judge is unable to obtain the criminal history directly from DPS, what type of procedure should he/she implement to ensure that the breath interlock devices are being ordered in the appropriate case? Some judges have been relying on the defendant's application for probation since it is a sworn document and the defendant can be charged with perjury if the information contained therein shown to be false. In this instance, the discrepancy is usually brought to the judge’s attention by the probation officer after reviewing the file, but in most counties that maybe 30-90 days post plea. Other judges have required the defendant to attach a certified copy of his/her DPS criminal history to the application for probation or petition for occupational license, and other judges have gone as far as requiring the defense counsel and prosecutor to sign a statement as officers of the court that the defendant’s application for probation or petition for occupational license is a true and accurate account of the defendant's prior criminal history.
It is also important to note that the judge’s duty under these statutes does not end with the issuance of the Order: The court shall require the defendant to provide evidence to the court within the 30-day period that the device has been installed. Article 42.12 CCP §13(a) (1). As a result of the increased scrutiny being given to these breath interlock orders, some judges are no longer relying on their probation officer to ensure that the defendant has complied within the 30 day window, but are taking the additional step of setting a status hearing 30 days post plea, and allowing the defendant and defense counsel to avoid the additional hearing by providing proof of compliance.
Summary
We can expect the Texas Legislature to continue to expand the required use of breath interlock devices. Until a more reliable study is completed, victim advocate groups are relying on the DPS statistics cited above, and are concerned that Texas judges are not complying with these mandatory statutes. It is important for us to understand this environment and to have a thorough understanding of our duties under these statutes in order to avoid the criticism being cast our way. Very few who have not sat as a Texas trial judge understand the administrative, ethical, and statutory duties imposed upon us from every direction. However, it is my firm belief that Texas judges make every attempt to learn and understand all of these duties, and to comply with them to the best of our ability.
For comments, questions, or further information regarding this article, contact:
David L. Hodges
Texas Judicial Resource Liaison
Texas Center for the Judiciary
dhodges@yourhonor.com
254.744.1115
DRUG COURTS were major news last month!
As the largest daily newspaper in the country with a daily print circulation of 2.3 million as well as 10 million visitors to their website, DRUG COURTS were major news last month! The USA TODAY ran a compelling story describing the drug court model, highlighting strong statistics and promoting its past and future growth. To view the entire article go to:
http://www.usatoday.com/news/nation/2007-12-20-alternativecourts_N.htm
There is a new product that claims to metabolize alcohol and to, therefore, reduce a drinker's BAC. The marketer is careful to refer to the substance as a dietary supplement rather than a drug. Calling itself a drug would require them to demonstrate to the FDA that the product actually worked. It is only sold online. You can find a website at:
http://www.sobrietol.com/Content/default.aspx.
Several TV news stations have gleefully jumped on the story and have taken the occasion to get some people drunk to test the product. You can read the result of their efforts here:
http://kwch.com/Global/story.asp?s=7293520
http://www.komotv.com/news/5606061.html
http://www.wnem.com/i-team/13565771/detail.html
Law enforcement authorities fear that some people may rely on the product's advertising claims and trust it to reduce their impairment before driving.Want to know more about SCRAM?
Click here to view a 96 page research article recently published by NHTSA. It is an excellent detailed discussion of two transdermal alcohol monitoring devices, SCRAM and the Giner Inc. Wrist Transdermal Alcohol Sensor (WrisTAS™). This article contains an excellent discussion of the advantages of using such devices and the information that can be gleaned from them, as well as the drawbacks and limitations of these devices. It also details how defendants attempt to defeat or interfere with the operation of the devices, with examples of participant agreements and instructions, and the operational charts of several of the participants.