I have a question from a Trooper. Here's the situation. Two young women go out partying with the expected results. The driver has an ignition interlock device on her vehicle by court order. Unfortunately, due to said partying, she cannot start the car. Friend tries, no go. Then they recruit a third party who apparently hadn't been drinking to blow into the tube and, voila!, the car starts. Meanwhile two peace officers have been watching this whole scene. The question is: is there any offense applicable to the conduct of the third party who obliged the women by blowing in the interlock device so car would start and they could leave?

Any ideas?

Janette Ansolabehere

Janette -

I first thought of Tampering with evidence - but there would be difficulty getting over the "knowing an investigation .." issue. However, if the intox. driver subsequently committed the offense of DWI can you charge the "blower" with DWI also - since without the conduct of the blower, the offense could not have been committed? Or did the trooper stop the transaction prior to allowing the defendant to drive away? I'm assuming a misdemeanor DWI, so no conspiracy offense. Novel facts. Is there any chance the blower was on probation also?

No idea, but I will contact the Trooper and find out. Apparently, the two women were at a convenience store and while they were busily recruiting the "blower," a clerk called the cops and that is how the officers came to watching. It must have taken the women some time to get a recruit, but the town is a small panhandle town, so presumably the law wasn't too far away. A novel issue.

Janette Ansolabehere

My thinking on the blower being on probation is that there are probably at least a couple of terms that she violated - curfew, not be present where a criminal offense is being committed, not associate with criminals - surely there is something. Good luck.

We had a defendant here who used to carry a portable air tank in his pickup bed....for those occassions when you drink alone I suppose!

Seems to me she would be a party to the offense of DWI (assuming you have a DWI from the driver being intoxicated). She certainly aided the driver to commit the crime.

If there is no actual DWI, you might be able to charge her as a party to the attempt to commit DWI, but you would have to show that she intended that a DWI be committed, which may be hard to do unless you can prove that she knew that the defendant was DWI (as opposed to simply having too much alcohol for the interlock, which is undoubtedly set to a level far below legal intoxication).

Blowing in the interlock and starting the car is operating. If parked in a public place, probably not hard to get since she didn't live there and parked was DWI. The blower knew she couldn't pass the blow test, did she knowingly assist in commission of the offense? Looks like it to me. The "helpful" blower might make a better accomplice witness than defendant?

Is DWI--Criminal Attempt a legally cognizable offense?

I don't think Attempt of DWI is a possible crime - either you are or you aren't. Imagine if attempt was an OK charge: Defendant is stopped by officer, gives a breath sample with a result of .06, so is charged with "attempted DWI"? Sounds similar to an officer hearing a '79 Yugo going up a hill at 45 miles per hour with the accelerator obviously to the floor and pulling the vehicle over for "attempted speeding".

I'm guessing that the car owner is on probation for DWI or facing charges.

I would think the fact that she couldn't blow b/c of the presence of alch. would be a violation. If driving on an occupational, I would think that she would be violating the terms of that and can be charged accodingly. Yank the occ. lic. Charge her with it and MTR for the drinking. (again - this assumes she was on prob.)

Doesn't really help against the helpers. They'll end up having to drive her around so maybe there is a little solace in that.

See Strong v. State, 87 S.W.3d 206 (Tex. App.--Dallas 2002)

Thanks for all the input. Other states have an offense for "tampering with an ignition interlock device." Would that Texas had such an offense! That would cover our helpful blower as well as the defendant who uses compressed air to get around the device. I know they are making them more sophisticated these days and it's my understanding that some of the newer ones "recognize" compressed air and go into lockout mode. I think the troopers nailed the original driver for DWI, but I have to admit it's looking like he will get through this without any charge being filed on him. Too bad. Maybe this one ought to be added to the "next time the Legislature is in session" list.

Janette Ansolabehere