As we all know, according to the change in law from the most recent legislative session, all persons who are convicted of a DWI and have a BAC of .15 or above must have the ignition interlock device installed on their vehicle as a part of a probationary sentence.

Here is a question I've been going back and forth on with a defense attorney: Defendant is stopped and arrested for DWI. Defendant agrees to give a breath sample and provides two separate samples (as is standard procedure). Results of breath tests are .147 and .152

So......does the Defendant get the ignition interlock? My position thus far has been yes, I can prove that the higher number was an "accurate sample", etc. through testimony of my breath tech expert. But of course the defense attorney is arguing no because of the one sample that was below.

Anyone else encountered this? Any ideas or suggestions?

The statute indicates that the interlock is required "if it is shown on the trial of the offense" that the alcohol level was .15 or more at the time the analysis was performed.

Certainly a plea hearing is a trial, but if the defendant pleads guilty to the typical charging instrument, he has only admitted to being .08 or more at the time of the offense. That's a far cry from admitting to being .15 or more at the time of the test.

(Although, practically speaking, the plea negotiations will generally take care of this oddity - "either take the interlock condition or we have no deal." But I'm curious if proof of .15 at the time of the test is actually being offered during routine plea hearings. And it would seem the prosecutor would have the discretion to waive the statutory interlock requirement by simply not offering any proof of .15 or more.)

What if there is a finding in the judgment that the BAC was lees than .15, despite the fact that is was over? Pursuant to a plea agreement, etc.

Would that have any impact on the surcharge, or would the original test result still be the deciding factor for DPS? EX. Def. has a BAC of .17....it takes a while to get to the jail and get a sample(new use for retrograde extrapolation?).....As part of the plea, Def. agrees to enter a guilty plea in exchange for a finding of .14, no interlock and potentially a lower surcharge. This has been brought up by a couple od Def. attys. , but has not yet explored. Any thoughts?

We have been giving the defendant the benefit of the doubt in cases where there's one sample over and another one under for purposes of ignition interlock. I try to give people who actually BLOW some credit in that regard (yes, I realize that at some point people who blow and blow high need to be hammered - pun intended - rather than rewarded). We have not been putting anything in the plea paperwork that the BT was over .15, only that an interlock is required.

Another question along these lines (and please forgive me if this was addressed in another discussion) but in family violence cases the statute specifies that the finding of FV is made by the court. In the BT >.15 statute, it simply says "if it is shown at the trial." Is anyone out there putting any special issue to the jury on the BT, or is that going to the court as an issue on terms and conditions only? I can't imagine that too many BT cases >.15 are going to trial, but sheesh - between the interlock and surcharges, I wouldn't be surprised to see more of them. I would argue that this is in the nature of the finding of FV (in that it doesn't enhance the crime or punishment range, only adds a particular term as a condition of community supervision).