Since then, according to a Sam Houston State University survey of Texas judges, some courts have been reluctant to adhere to the legislative mandate. Though the magistrates polled generally valued the breath-monitoring devices as tools for fighting DWI recidivism, they were sharply divided on how the law should be implemented.
This division has resulted in a notable disparity in sentencing, explained Laura Myers, associate professor in criminal justice at SHSU and coordinator of the survey.
"Judges have a lot of latitude in interpreting the law," explained Myers. "Often, when legislators pass laws judges don't agree with, the judges interpret them liberally. We wanted to find out who's using the law and who's not. And, why the ones who are not using it, aren't."
The gadget around which the September 1995 law revolves is known as a breath alcohol ignition interlock device, or BAIID. Once installed in a vehicle, an alcohol-free breath sample must be blown into the device before the engine will start. If a measurable amount of alcohol is detected in the breath sample, the device disables the vehicle.
Though the law is quite specific in requiring judges to order the device for repeat DWI offenders, a sub-section of the statute allows jurists to circumvent the mandate in cases where it would not serve "the best interest of justice."
The SHSU survey found, with few exceptions, Texas judges are ordering the interlock devices to be installed in the cars of chronic DWI offenders. As a matter of fact, over 80 percent of the respondents said they had a "positive opinion" of the devices.
"However," Myers said, "judges tend to apply the law on a case-by-case basis rather than uniformly, as the law suggests. When the devices are ordered," she said, "it is usually a part of a more elaborate sentence that includes fines, community service and mandatory alcohol abuse treatment."
Furthermore, the study found that judges with positive attitudes toward the breath analyzing devices ordered them with greater frequency. Conversely, those skeptical about the monitoring systems, as well as those uncomfortable with certain aspects of the statute, were less likely to utilize the devices.
A small portion of the survey respondents said they never ordered DWI offenders to install the devices.
The part of the new DWI law most criticized by Texas jurists was the requirement that the breath device be ordered for all repeat offenders posting bond. Approximately 25 percent of the judges surveyed argued that this provision denies the defendant due process, assigning punishment to someone who has to yet be found guilty of the crime. This controversial "presumption of guilt" was the most frequent reason magistrates cited for not complying with the intent of the law.
On the other hand, an equal number of judges saw no disadvantages to requiring the devices as a condition of bond or probation. Nine percent of the respondents even favored requiring the devices in all drunken driving cases.
While all judges surveyed agreed that the interlock offered no guarantee against recidivism, over 90 percent said the device could serve as a "means of specific deterrence or as a tool of incapacitation." Half of the responding jurists said the instruments actually reduced recidivism or insured sobriety, and approximately 30 percent said the device "protects the public."
Among those judges favoring BAIIDs, several pointed to the advantage of allowing offenders a means of transportation to and from work, probation meetings, and alcohol treatment programs. The device was seen as a viable alternative to license suspension, which in effect, could deny the offender access to beneficial activities.
On the negative side, 25 percent of the respondents said the interlock devices were too costly when lumped with fines, bond and court fees.
The law requires the device to be installed within 30 days of posting bond. Installation can cost from $70-$140 dollars, depending on the interlock company utilized. Additionally, users must pay about $60 per month to lease the unit, and ultimately they must spend about $21 to have it removed.
Another common complaint, echoed by about 10 percent of the judges polled, was that the interlock devices were too easy to circumvent. Though offenders are ordered to drive only their own BAIID-controlled vehicle, there is no prudent way of keeping them from driving a friend's car or even renting another car.
Newer versions of the device require frequent breath samples to keep the vehicle operational. However, there is no method for assuring that the person blowing into the unit is the offender for whom the instrument was installed.
Up to 10 percent of the survey respondents said enforcing BAIIDs regulations were difficult and about 25 percent said they had no knowledge of how many of the BAIIDs sentenced had actually been installed. Judges who ventured an estimate put the average rate of BAIIDs compliance at approximately 67 percent. The jurists also estimated that an average of 10 percent of the offenders using BAIIDs failed to avoid drinking and driving while the unit was installed.
The judges offered a variety of reasons for not requiring the devices, including those stated above: lack of due process, high costs, ease of circumvention and inability to enforce.
Several said they didn't see the need to require BAIIDs for offenders who had their driver's license suspended. Others didn't consider BAIIDs in their sentences unless asked to do so by prosecuting or defense attorneys.
Almost all of the judges polled by SHSU researchers said the responsibility for enforcing BAIIDs sentences fell on probation officials.
What struck Myers about the BAIIDs survey was the general lack of knowledge among judges about the devices.
"They knew about the new law, but because they didn't know how BAIIDs worked, they weren't likely to use them," Myers said. "What they did know about the devices, they generally learned from probation officials or from representatives of the interlock companies."
Myers said the survey identified a definite need for judicial education on the use of interlock devices.
"We need to get the judges who are using BAIIDs to tell other judges about them," she said. "It is evident from the survey, that judges familiar with the devices find them to be a valuable component in today's trend toward more creative sentencing. That trend," she said, "is aimed not only at punishing and incapacitating chronic offenders, but at helping them receive the rehabilitation they need to avoid another arrest."