Deep Lung Devices are Getting Harder to Avoid in Collin County While on Bond

December 14, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

All driving while intoxicated arrests in Texas require that a person see a magistrate judge.  That judge is required by law to make an initial assessment and to decide whether to order the defendant to have an ignition interlock device (also known as a deep lung device) under Texas Code of Criminal Procedure 17.441.

Here is the relevant text of 17.441:

“(a) Except as provided by Subsection (b), a magistrate shall require on release that a defendant charged with a subsequent offense under Sections 49.04-49.06, Penal Code, or an offense under Section 49.07 or 49.08 of that code:

“(1) have installed on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant, a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and

“(2) not operate any motor vehicle unless the vehicle is equipped with that device.

“(b) The magistrate may not require the installation of the device if the magistrate finds that to require the device would not be in the best interest of justice.

Section 17.441 can be read to state that a judge can only order the interlock device on a vehicle if it’s the 2nd DWI arrest (or more) of the defendant.  The judge can find that an interlock ignition device is not appropriate in the best interests of justice even on a 2nd arrest.

In reality, Judge’s interpret the law to state that they can always place an interlock device on a car but are only required to do so on a 2nd offense.  It is unclear whether they are interpreting 17.441 as the basis for their beliefs of some other statute.  Additionally, many Collin County judges have informal policies that if a defendant had a car accident or was charged with the new offense of DWI with a blood alcohol concentration above 0.15, then they will order the deep lung device as well.

Ultimately deep lung devices are becoming more and more common as terms and conditions of bond in Collin County.  Arrest and going before the magistrate is not the only time in a case where a judge may have an opportunity to order the deep lung device as well… the judge can order the defendant get one when the defendant applies for an occupational license due to a driver’s license suspension, during a guilty plea, or if a jury convicts the defendant.

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney client relationship and communications through this blog are not confidential.

Computer Crimes – The Prosecutor Must ‘Put the Defendant’s Fingers on the Keyboard’

December 9, 2011

By Dallas and Collin County Criminal Lawyer Jeremy Rosenthal

(972) 562-7549

Every legislative session comes with new cyber laws altogether or new tweaks on existing laws.  Common online crimes are online harassment, online impersonation, unauthorized computer access and sex crimes such as online solicitation.

The biggest challenge for the prosecutor is to ‘put the Defendant’s fingers on the keyboard.’  In other words, the prosecutor must show that the computer crime, if any, was committed by the Defendant and not someone else on the same computer.  Though police may be able to track online activity to a particular Facebook or Yahoo account and can pin-point it to a particular IP address doesn’t mean they’ve made their case.  They must also eliminate other suspects under the same roof which can be difficult.  Remember too that the prosecution bears the burden of proof beyond all reasonable doubt and the burden never shifts to the defense.

This is where the advocacy of a skilled criminal defense lawyer can help with these types of charges.  Often police and prosecutors will quit on a case once they’ve narrowed the evidence down to a particular IP address if someone lives there with a motive to commit the crime.  In trial, though, the jury must be made to understand the importance of eliminating all other suspects — and thus eliminating all reasonable doubt.

Compare an online case with a case with biological evidence such as DNA.  In a case with a DNA match, the prosecutor can tell the jury that the DNA eliminates every other possible suspect in the state of Texas, the United States, or North America.  On a computer case, the prosecution can’t even eliminate other suspects living in the same house.

The prosecutor must “put the defendant’s fingers on the keyboard.”  Don’t let the jury allow them to get away with any less!

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any issue you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client privilege and communications to the attorney through this blog are not confidential.