2007 By W. Clay Abbott
TDCAA DWI Resource Prosecutor
On your wish list for Santa
This holiday season, many Texas jurisdictions will see increased law enforcement and media activity during a just-announced crackdown on intoxicated drivers. I know more cases are not on any prosecutor’s Christmas list, but fewer impaired drivers probably is, and the push is on.
On November 20, 2006, Mothers Against Drunk Driving (MADD) announced a nationwide Campaign to Eliminate Drunk Driving. This group, which has spearheaded campaigns for increased enforcement, better laws, and public awareness of the impact of impaired driving on innocent victims for decades, was joined by the National Highway Traffic Safety Administration, the Insurance Institute for Highway Safety, alcohol and auto industry groups, and law enforcement. Their call is not for reducing impaired driving but eliminating it. This is a lofty goal indeed. I, for one, would be glad to see it succeed so I can find another vocation.
The campaign has four initiatives:
• high-visibility law enforcement,
• maximum implementation of ignition interlocks,
• advanced technology research initiative, and
• widespread public support.
As I mentioned, December will be full not only of caroling and mistletoe but also highly visible police crackdowns on intoxicated driving. You may be contacted by local law enforcement to join in public announcements concerning your community’s responses to national anti-DWI efforts. The idea is that there is no reason to sneak up on drunk drivers: The more publicized the initiatives, the greater the deterrence. Now, fewer impaired drivers on the road is on most prosecutors’ Santa wish list. When we join with law enforcement in making these announcements, the message is stronger and certainly reminds the community of our largely invisible efforts.
The second initiative is also dependent on our work. Ignition interlocks are used in motor vehicles to disable the vehicle’s ignition if the device detects alcohol in a deep-lung breath sample. Improvements in these devices have made them more difficult to tamper with or bypass. One very helpful feature is that they send reports of usage, failure, or tampering to the vendor, which then provides that information to probation or other monitoring entities. (What a compelling potential source of punishment evidence!) With DWI offenses having such a high and certainly dangerous incidence of recidivism, this technology can save lives.
Article 42.12 §13(i), Code of Criminal Procedure controls ignition interlock as a condition of DWI or other Chapter 49 offense probations. The condition is usually that the defendant will install, maintain, and pay for an ignition interlock device in his vehicle and not drive a vehicle in which ignition interlock is not installed.1 All defendants receiving subsequent DWI (or other Chapter 49 offense) convictions must install an ignition interlock.2 In addition, first-time offenders under age 213 or having a BAC of 0.15 or higher4 must also install an ignition interlock.
Ignition interlock may be a condition of bond if the magistrate finds the condition reasonable and related to the community’s safety.5 It is a mandatory bond condition if the offense is a subsequent Chapter 49 offense or first-time intoxication manslaughter or intoxication assault offense.6 Like with probation, the magistrate orders the device’s installation and maintenance and that the defendant not operate vehicles without an ignition interlock.7 Unlike probation cases, prosecutorial intervention in monitoring is a must if the bond conditions will have any effect.
The third initiative is a forward-looking one. It is simply amazing to watch the development of modern medical science. The simplicity, mobility, and accuracy of devices monitoring the human body are accelerating at a science-fiction-type pace. As an example, technology developed to constantly monitor blood glucose levels in diabetics has launched an amazing ability to monitor a person’s blood alcohol concentration (BAC). This new technology, called a Secure Continuous Remote Alcohol Monitor (SCRAM), has already come into use across the country and in Dallas, Denton, Rockwall, Kaufman, Collin, and other Texas counties. In simple terms, this ankle bracelet measures perspiration from the subject’s skin to detect alcohol’s presence. Our skin constantly gives off small amounts of perspiration and, based on the same scientific principles as breath testing, the percentage of alcohol in sweat is the same percentage of alcohol in blood. Using technology developed for communications, the device then sends its results by modem to a server, then to the Internet for monitoring by probation or prosecution. It produces an hourly confirmation that the individual is either consuming alcohol or not8—a result previously possible only through incarceration.
This technology is often used by prosecutors as a means of preventing a defendant from avoiding ignition interlock conditions. Those defendants who claim that they don’t operate a vehicle or who claim that employers’ vehicles cannot be equipped, are offered this more intrusive but more effective alternative. I have heard that making such an offer often helps the accused decide that he does have a vehicle that should be equipped. SCRAM is also tailor-made to fit DWI Court initiatives. Repeat offenders receiving this intensive, high-contact probation can be monitored hourly instead of weekly, and authorities can respond to the results in hours rather than weeks.
Based on the same science, auto manufacturers have developed a steering wheel that makes a similar analysis when the driver starts the car. Can you imagine what this might potentially mean? A world without DWI! What a great gift to prosecutors and the communities we serve! Believe me, I would love to train on another topic. MADD is not suggesting that every car have such a device, but it does advocate technological solutions and thinking outside the box. Prosecutors must be aware of these technologies because we all know what happens when we are left out of plans that affect the work we do.
Public supportThe final initiative is public support, which is created by community dialogue. You would think that everyone has heard the message about how dangerous, thoughtless, and selfish impaired driving is, but my guess is that there are a bunch of folks on your dockets and several on your jury panels who just haven’t gotten the message yet. So I am glad the folks at MADD are still talking. We need to continue our dialogue with the public, in and out of voir dire, as well. Even more open discussion about impaired driving and its prevention is high on my Christmas list, even topping that new GPS gizmo for my car.
Endnotes1 Article 42.12 §13(i), CCP.
2 Article 42.12 §13(i), CCP.
3 Article 42.12 §13(m)(2), CCP.
4 Article 42.12 §13(i), CCP.
5 Article 17.40, CCP.
6 Article 17.441, CCP.
7 Article 17.441, CCP.
8 For more information on this device, see a manufacturer’s website at www.alcoholmonitoring.com.