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A BILL TO BE ENTITLED
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AN ACT
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relating to the taking of a specimen to test for intoxication and |
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retention and preservation of toxicological evidence of certain |
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intoxication offenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 38.50, Code of Criminal Procedure, is |
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amended by amending Subsections (c), (d), and (e) and adding |
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Subsections (g) and (h) to read as follows: |
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(c) An entity or individual described by Subsection (b) |
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shall ensure that toxicological evidence collected pursuant to an |
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investigation or prosecution of an offense under Chapter 49, Penal |
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Code, is retained and preserved, as applicable: |
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(1) for the greater of two years or the period of the |
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statute of limitations for the offense, if the indictment or |
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information charging the defendant, or the petition in a juvenile |
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proceeding, has not been presented or has been dismissed without |
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prejudice; |
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(2) for the duration of a defendant's sentence or term |
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of community supervision, as applicable, if the defendant is |
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convicted or placed on community supervision, or for the duration |
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of the commitment or supervision period applicable to the |
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disposition of a juvenile adjudicated as having engaged in |
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delinquent conduct or conduct indicating a need for supervision; or |
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(3) until the defendant is acquitted or the indictment |
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or information is dismissed with prejudice, or, in a juvenile |
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proceeding, until a hearing is held and the court does not find the |
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child engaged in delinquent conduct or conduct indicating a need |
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for supervision. |
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(d) A person from whom toxicology evidence was collected |
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and, if the person is a minor, the person's parent or guardian, |
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shall be notified [For each offense subject to this article, the |
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court shall determine as soon as practicable the appropriate |
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retention and preservation period for the toxicological evidence |
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under Subsection (c) and notify the defendant or the child or |
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child's guardian and the entity or individual charged with storage |
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of the toxicological evidence] of the periods [period] for which |
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[the] evidence may [is to] be retained and preserved under this |
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article. The notice must be given by: |
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(1) an entity or individual described by Subsection |
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(b) that collects the evidence, if the entity or individual |
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collected the evidence directly from the person or collected it |
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from a third party; or |
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(2) the court, if the records of the court show that |
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the person was not given the notice described by Subdivision (1) and |
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the toxicological evidence is subject to the retention period under |
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Subsection (c)(2) or (3) [If an action of the prosecutor or the |
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court changes the applicable period under Subsection (c), the court |
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shall notify the persons described by this subsection about the |
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change]. |
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(e) The entity or individual charged with storing |
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toxicological evidence may destroy the evidence on expiration of |
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the applicable retention period: |
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(1) described by Subsection (c)(1); or |
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(2) described by Subsection (c)(2) or (c)(3), provided |
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that: |
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(A) notice was given in accordance with this |
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article; and |
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(B) if applicable, the prosecutor's office gives |
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written approval for the destruction under Subsection (h) [provided |
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by the notice most recently issued by the court under Subsection |
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(d)]. |
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(g) Notice given under this article must be given: |
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(1) in writing, as soon as practicable, by hand |
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delivery, e-mail, or first class mail to the person's last known |
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e-mail or mailing address; or |
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(2) if applicable, orally and in writing on requesting |
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the specimen under Section 724.015, Transportation Code. |
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(h) A prosecutor's office may require that an entity or |
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individual charged with storing toxicological evidence seek |
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written approval from the prosecutor's office before destroying |
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toxicological evidence subject to the retention period under |
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Subsection (c)(2) or (c)(3) for cases in which the prosecutor's |
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office presented the indictment, information, or petition. |
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SECTION 2. Section 724.015, Transportation Code, is amended |
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to read as follows: |
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Sec. 724.015. INFORMATION PROVIDED BY OFFICER BEFORE |
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REQUESTING SPECIMEN; STATEMENT OF CONSENT. (a) Before requesting |
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a person to submit to the taking of a specimen, the officer shall |
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inform the person orally and in writing that: |
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(1) if the person refuses to submit to the taking of |
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the specimen, that refusal may be admissible in a subsequent |
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prosecution; |
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(2) if the person refuses to submit to the taking of |
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the specimen, the person's license to operate a motor vehicle will |
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be automatically suspended, whether or not the person is |
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subsequently prosecuted as a result of the arrest, for not less than |
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180 days; |
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(3) if the person refuses to submit to the taking of a |
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specimen, the officer may apply for a warrant authorizing a |
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specimen to be taken from the person; |
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(4) if the person is 21 years of age or older and |
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submits to the taking of a specimen designated by the officer and an |
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analysis of the specimen shows the person had an alcohol |
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concentration of a level specified by Chapter 49, Penal Code, the |
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person's license to operate a motor vehicle will be automatically |
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suspended for not less than 90 days, whether or not the person is |
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subsequently prosecuted as a result of the arrest; |
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(5) if the person is younger than 21 years of age and |
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has any detectable amount of alcohol in the person's system, the |
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person's license to operate a motor vehicle will be automatically |
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suspended for not less than 60 days even if the person submits to |
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the taking of the specimen, but that if the person submits to the |
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taking of the specimen and an analysis of the specimen shows that |
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the person had an alcohol concentration less than the level |
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specified by Chapter 49, Penal Code, the person may be subject to |
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criminal penalties less severe than those provided under that |
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chapter; |
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(6) if the officer determines that the person is a |
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resident without a license to operate a motor vehicle in this state, |
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the department will deny to the person the issuance of a license, |
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whether or not the person is subsequently prosecuted as a result of |
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the arrest, under the same conditions and for the same periods that |
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would have applied to a revocation of the person's driver's license |
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if the person had held a driver's license issued by this state; |
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[and] |
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(7) the person has a right to a hearing on the |
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suspension or denial if, not later than the 15th day after the date |
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on which the person receives the notice of suspension or denial or |
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on which the person is considered to have received the notice by |
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mail as provided by law, the department receives, at its |
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headquarters in Austin, a written demand, including a facsimile |
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transmission, or a request in another form prescribed by the |
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department for the hearing; and |
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(8) if the person submits to the taking of a blood |
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specimen, the specimen will be retained and preserved in accordance |
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with Article 38.50, Code of Criminal Procedure. |
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(b) If a person consents to the request of an officer to |
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submit to the taking of a specimen, the officer shall request the |
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person to sign a statement that: |
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(1) the officer requested that the person submit to |
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the taking of a specimen; |
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(2) the person was informed of the consequences of not |
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submitting to the taking of a specimen; and |
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(3) the person voluntarily consented to the taking of |
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a specimen. |
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SECTION 3. (a) Except as provided by Subsections (b) and |
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(c) of this section, the changes in law made by this Act to Article |
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38.50, Code of Criminal Procedure, apply only to evidence for which |
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the appropriate retention and preservation period under that |
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article expires on or after the effective date of this Act. |
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Evidence for which the appropriate retention and preservation |
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period expired before the effective date of this Act is governed by |
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the law in effect on the date of expiration of that period, and the |
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former law is continued in effect for that purpose. |
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(b) If the applicable retention and preservation period |
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under Article 38.50(c)(1), Code of Criminal Procedure, has expired |
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with respect to toxicological evidence held in storage on the |
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effective date of this Act, and notice regarding that evidence has |
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not yet been given under Article 38.50(d), Code of Criminal |
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Procedure, as that subsection existed immediately before the |
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effective date of this Act, the entity or individual charged with |
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storing the evidence may destroy the evidence pursuant to Article |
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38.50(e), Code of Criminal Procedure, as amended by this Act. |
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(c) If the appropriate retention and preservation period |
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under Article 38.50(c)(2) or (3), Code of Criminal Procedure, as |
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applicable, has expired with respect to evidence held in storage on |
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the effective date of this Act, and notice regarding that evidence |
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has not yet been given under Article 38.50(d), Code of Criminal |
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Procedure, as that subsection existed immediately before the |
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effective date of this Act, the court shall provide the notice |
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required by Article 38.50(d), Code of Criminal Procedure, as |
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amended by this Act, not later than September 1, 2022. |
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(d) The change in law made by this Act to Section 724.015, |
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Transportation Code, applies only to a request for the taking of a |
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breath or blood specimen to test for intoxication that occurs on or |
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after the effective date of this Act. A request for the taking of a |
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specimen that occurs before the effective date of this Act is |
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governed by the law in effect on the date the specimen was |
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requested, and the former law is continued in effect for that |
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purpose. |
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SECTION 4. This Act takes effect September 1, 2021. |
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