Background

Drinking and driving are a dangerous combination. We all know this to be true, but how dangerous is drinking and driving? Is our state any better or worse than other states? An examination of the relevant statistics paints a grim reality for Texas. The combination of drinking and driving has proved more deadly in Texas than in any other state. In 2004, there were 1,642 alcohol related traffic fatalities in Texas. California, with a higher population, reported 1,643 alcohol related traffic fatalities.2

Texas is a large state with many road miles. The danger drunk drivers pose to Texans is evident when the number of miles driven by intoxicated persons is compared to the number of total miles driven. In 1999, a person with a blood alcohol content greater than .08 drove one out of every 150 miles. Alcohol consumption was a factor in 170,000 car accidents injuring 63,500 people in 1999. These are estimates for Texas alone.3

Texans incurred over $10 billion dollars in monetary and property losses due to alcohol related crashes. The National Highway Traffic Safety Administration (NHTSA) estimates that the average cost of each alcohol related fatality was $3.3 million in 1999.

Policy makers have recently made the reduction of alcohol related crashes and fatalities a priority. The blood alcohol content needed to prove intoxication was reduced from .10 to .08 BAC. The Legislature enacted a zero tolerance law making it illegal for drivers under the age of 21 to drive if they have any detectable amount of alcohol in their system. Magistrates are now required to make defendants charged with subsequent DWI offenses install an Ignition Interlock Device.

Ignition Interlock Devices Explained

Ignition Interlock Devices (IID) are defined as:

A device that is a breath alcohol analyzer that is connected to a motor vehicle ignition. In order to start the motor vehicle engine, a driver must deliver an alveolar breath sample to the IID which measures the alcohol concentration. If the alcohol concentration meets or exceeds the startup set point on the interlock device, the motor vehicle engine will not start.4

In other words, an IID is a device designed to prevent a car from starting when the driver has consumed too much alcohol. The devices approved for this purpose are regulated by the State. The State of Texas has approved eight different interlock devices for this purpose.

Defendants charged with a subsequent DWI offense are required to install an IID through an approved vendor. Presently, there are six approved vendors. The authorized vendors, in turn, train and license IID installers in communities across the state.

Though each device has different features, they share important common features, including:

• The ability to prevent the vehicle from being started if the device measures a BAC of over .03;
• The ability to limit the driver up to no more than five opportunities to start the vehicle within a short period of time;
• If the driver fails multiple tests, the ability to prevent the vehicle from starting for a period of time;
• The ability to measure ethanol alcohol only; and
• The ability to maintain a tamper-proof internal record of each attempted start that can be downloaded monthly and reported to the supervising court.

The Legal Requirements

Texas Law provides that:

A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.5

The term "intoxicated" is defined as:

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.6

State law requires magistrates to order defendants charged with a subsequent DWI to install an IID unless the magistrate finds that the installation of an IID "would not be in the best interest of justice."7 Defendants subject to a magistrate's order to install an IID are further ordered not to operate any motor vehicle unless the vehicle is equipped with an IID.8

Texas laws requiring the installation of IIDs have been challenged as unconstitutional. The Fort Worth Court of Appeals upheld the IID requirement finding:

The interlock device serves the narrow governmental purpose of assuring that such persons not drive an automobile after they have consumed alcohol. See Ex parte Tharp, 912 S.W.2d 887, 890 (Tex. App. Fort Worth 1995), aff'd, 935 S.W.2d 157 (Tex. Crim. App. 1996). Driving an automobile is a privilege, not a right. See Naff v. State, 946 S.W.2d 529 (Tex. App.-Fort Worth 1997); Texas Dep't of Pub. Safety v. Schaejbe, 687 S.W.2d 727, 728 (Tex. 1985); Ex parte Tharp, 912 S.W.2d at 890. The revocation of licenses and privileges in general have traditionally not been found to be punitive in nature. See Ex parte Tharp, 912 S.W.2d at 891. Accordingly, the requirement of an interlock device, which is a less severe infringement on the privilege of driving an automobile, does not constitute punishment and is not oppressive.9

The magistrate's order requiring that a defendant install an IID is not subject to interlocutory review.10 The appellate courts may only hear cases specifically authorized for interlocutory appeal. No exception exists for the appeal of a magistrate's order requiring the installation of an IID.

Finally, the magistrate's order requiring an IID does not trigger the bar against double jeopardy when the defendant is prosecuted on the charge of driving while intoxicated.

The revocation of licenses and privileges is traditionally not found to be punitive in nature. Elliot, 950 S.W.2d at 717. Driving is a privilege, not a right. See Ex parte Tharp, 935 S.W.2d 157, 159 (Tex. Crim. App. 1996). The court held in Sharp that a complete loss of driving privileges is not punishment. Id. The requirement of an interlock device, a less severe infringement on the privilege of driving, does not constitute punishment. Elliot, 950 S.W.2d at 717. Therefore, we conclude that the restriction on appellant's driving license also does not constitute punishment.11

The Magistrate's IID Order

When the magistrate orders the defendant to install an IID, an order is signed by the magistrate setting forth the requisites. The magistrate's order must require the defendant:

• to install an IID;
• at the expense of the accused;
• within 30 days of release on bail; and
• not to operate any motor vehicle, unless the motor vehicle is equipped with an IID.

In some cases, the magistrate may find that the IID should not be required in the best interest of justice. In that event, the magistrate should make a written order excusing the accused from the IID requirement that states the reasons for such determination. Reasons that might justify lifting the requirement might include economic hardship and health.

If the defendant fails to comply with the magistrate's order, the magistrate may revoke the bond upon a finding by a preponderance of the evidence that the defendant violated the conditions of the bond. Texas Code of Criminal Procedure, Art. 17.40.

Monitoring the IID

The magistrate is also empowered to designate an appropriate agency to monitor the installation and operation of the IID. In practice, the monitoring function has been delegated to pre-trial services or the probation department. In some cases, the magistrate has assigned the monitoring function to members of the judge's staff.

The monitoring function is critical to an effective program of reducing drunk driving through the use of IIDs. Each month the defendant must report to a field office of the IID vendor company. The information regarding ignition attempts maintained by the IID is downloaded at that time. The report from the downloaded data is then reformatted and sent to the monitoring official.

The IID monthly report is a listing of each start prevented by the IID, and it identifies the reason the start was prevented. For example, if the defendant registered a BAC over .03, the monthly report would state the BAC measurement, date and time.

If the report indicates non-compliance, the monitoring officer might recommend the magistrate modify the bond to include alcohol/drug counseling, out-patient or in-patient treatment, or increased supervision of the defendant.

The action taken by the magistrate should be proportional to the extent of the non-compliance.

Conclusion

IIDs are a response to the very serious problem of drunk driving. A properly monitored IID is an effective tool for reducing drunk driving.
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1 Judicial Guide: Hardcore Drunk Driving, National Association of State Judicial Educators, 2004.
2 National Highway Traffic Safety Administration, Traffic Safety Facts: Crash Stats, DOT HS 809 905.
3 National Highway Traffic Safety Administration, Impaired Driving in Texas, ww.nhtsa.dot.gov/people/injury/alcohol/impaired_driving_pg2/TX.htm.
4 37 TAC §19.21(23).
5 Texas Penal Code §49.04(a).
6 Texas Penal Code §49.01(2).
7 Texas Code of Criminal Procedure Art. 17.441(b).
8 Texas Code of Criminal Procedure Art. 17.441(a)(2).
9 Ex parte Kevin Elliott, 950 SW2d 714, 717 (Tex. App. Fort Worth, 1997).
10 Briddle v State, 16 SW3d 906 (Tex. App. Fort Worth, 2000).
11 Ex parte Sells, 2000 Tex. App. Lexis 132 (Tex. App. Houston- 1st District, 2000).