By Nelson S.B. No. 153
74R2234 JD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the civil and criminal consequences of an offense
1-3 involving the operation of a motor vehicle by a person under the
1-4 age of 21 while under the influence of alcohol or other substances.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 49, Penal Code, is amended by adding
1-7 Section 49.035 to read as follows:
1-8 Sec. 49.035. OPERATION OF MOTOR VEHICLE BY MINOR UNDER THE
1-9 INFLUENCE OF ALCOHOL OR OTHER SUBSTANCE. (a) A person younger
1-10 than 21 years of age commits an offense if the person operates a
1-11 motor vehicle in a public place and is under the influence of
1-12 alcohol, a controlled substance, a drug, a dangerous drug, or a
1-13 combination of two or more of those substances, but is not
1-14 intoxicated.
1-15 (b) Except as provided by Subsection (c) and Section 49.09,
1-16 an offense under this section is a Class B misdemeanor, with a
1-17 minimum term of confinement of 72 hours.
1-18 (c) If it is shown on the trial of an offense under this
1-19 section that at the time of the offense the person operating the
1-20 motor vehicle had an open container of alcohol in the person's
1-21 immediate possession, the offense is a Class B misdemeanor, with a
1-22 minimum term of confinement of six days.
1-23 SECTION 2. Sections 49.09 and 49.10, Penal Code, are amended
1-24 to read as follows:
2-1 Sec. 49.09. Enhanced Offenses and Penalties. (a) If it is
2-2 shown on the trial of an offense under Section 49.035, 49.04,
2-3 49.05, or 49.06 that the person has previously been convicted one
2-4 time of an offense relating to the driving or operating of a motor
2-5 vehicle while intoxicated, an offense of operating an aircraft
2-6 while intoxicated, or an offense of operating a watercraft while
2-7 intoxicated, the offense is a Class A misdemeanor, with a minimum
2-8 term of confinement of 15 days.
2-9 (b) If it is shown on the trial of an offense under Section
2-10 49.035, 49.04, 49.05, or 49.06 that the person has previously been
2-11 convicted two times of an offense relating to the driving or
2-12 operating of a motor vehicle while intoxicated, an offense of
2-13 operating an aircraft while intoxicated, or an offense of operating
2-14 a watercraft while intoxicated, the offense is a felony of the
2-15 third degree.
2-16 (c) For the purposes of this section:
2-17 (1) "Offense relating to the driving or operating of a
2-18 motor vehicle while intoxicated" means:
2-19 (A) an offense under Section 49.035 or 49.04;
2-20 (B) an offense under Article 6701l-1, Revised
2-21 Statutes, as that law existed before September 1, 1994;
2-22 (C) an offense under Article 6701l-2, Revised
2-23 Statutes, as that law existed before January 1, 1984; or
2-24 (D) an offense under the laws of another state
2-25 that prohibit the operation of a motor vehicle while intoxicated.
2-26 (2) "Offense of operating an aircraft while
2-27 intoxicated" means:
3-1 (A) an offense under Section 49.05;
3-2 (B) an offense under Section 1, Chapter 46, Acts
3-3 of the 58th Legislature, Regular Session, 1963 (Article 46f-3,
3-4 Vernon's Texas Civil Statutes), as that law existed before
3-5 September 1, 1994; or
3-6 (C) an offense under the laws of another state
3-7 that prohibit the operation of an aircraft while intoxicated.
3-8 (3) "Offense of operating a watercraft while
3-9 intoxicated" means:
3-10 (A) an offense under Section 49.06;
3-11 (B) an offense under Section 31.097, Parks and
3-12 Wildlife Code, as that law existed before September 1, 1994; or
3-13 (C) an offense under the laws of another state
3-14 that prohibit the operation of a watercraft while intoxicated.
3-15 (d) For the purposes of this section, a conviction for an
3-16 offense under Section 49.035, 49.04, 49.05, or 49.06 that occurs on
3-17 or after September 1, 1994, is a final conviction, whether the
3-18 sentence for the conviction is imposed or probated.
3-19 (e) A conviction may not be used for purposes of enhancement
3-20 under this section if:
3-21 (1) the conviction was a final conviction under
3-22 Subsection (d) <(e)> and was for an offense committed more than 10
3-23 years before the offense for which the person is being tried was
3-24 committed; and
3-25 (2) the person has not been convicted of an offense
3-26 under Section 49.035, 49.04, 49.05, or 49.06 or any offense related
3-27 to driving or operating a motor vehicle while intoxicated committed
4-1 within 10 years before the date on which the offense for which the
4-2 person is being tried was committed.
4-3 Sec. 49.10. No Defense. In a prosecution under Section
4-4 49.03, 49.035, 49.04, 49.05, 49.06, 49.07, or 49.08, the fact that
4-5 the defendant is or has been entitled to use the alcohol,
4-6 controlled substance, drug, dangerous drug, or other substance is
4-7 not a defense.
4-8 SECTION 3. Section 1, Chapter 434, Acts of the 61st
4-9 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
4-10 Civil Statutes), is amended to read as follows:
4-11 Sec. 1. (a) Any person who operates a motor vehicle in a
4-12 public place, or a watercraft, in this state shall be deemed to
4-13 have given consent, subject to the provisions of this Act, to
4-14 submit to the taking of one or more specimens of the person's <his>
4-15 breath or blood for the purpose of analysis to determine the
4-16 alcohol concentration or the presence in the person's <his> body of
4-17 a controlled substance, drug, dangerous drug, or other substance,
4-18 if arrested for any offense arising out of acts alleged to have
4-19 been committed while a person was driving or in actual physical
4-20 control of a motor vehicle or a watercraft while intoxicated.
4-21 (b) A person younger than 21 years of age who operates a
4-22 motor vehicle in a public place in this state shall be deemed to
4-23 have given consent, subject to the provisions of this Act, to
4-24 submit to the taking of one or more specimens of the person's
4-25 breath or blood for the purpose of analysis to determine the
4-26 alcohol concentration in the person's body, or the presence in the
4-27 person's body of a controlled substance, drug, or dangerous drug,
5-1 if arrested for an offense under Section 49.035, Penal Code.
5-2 (c) Any person so arrested may consent to the giving of any
5-3 other type of specimen to determine the person's <his> alcohol
5-4 concentration, but the person <he> shall not be deemed, solely on
5-5 the basis of the person's <his> operation of a motor vehicle in a
5-6 public place, or a watercraft, in this state, to have given consent
5-7 to give any type of specimen other than a specimen of the person's
5-8 <his> breath or blood.
5-9 (d) The specimen, or specimens, shall be taken at the
5-10 request of a peace officer having reasonable grounds to believe the
5-11 person to have been driving or in actual physical control of a
5-12 motor vehicle in a public place, or a watercraft, in this state
5-13 while intoxicated or to have been operating a motor vehicle in
5-14 violation of Section 49.035, Penal Code.
5-15 SECTION 4. Section 2(e), Chapter 434, Acts of the 61st
5-16 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
5-17 Civil Statutes), is amended to read as follows:
5-18 (e) The director shall approve the form of the report. The
5-19 report must show the grounds for the officer's belief that the
5-20 person had been operating a motor vehicle while intoxicated or in
5-21 violation of Section 49.035, Penal Code. The report must also show
5-22 that the person refused to give a specimen, as evidenced by:
5-23 (1) a written refusal to give a specimen, signed by
5-24 the person; or
5-25 (2) a statement signed by the officer stating that the
5-26 person refused to give a specimen and also refused to sign the
5-27 statement requested by the officer under Subsection (c) of this
6-1 section.
6-2 SECTION 5. Section 2(f), Chapter 434, Acts of the 61st
6-3 Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
6-4 Civil Statutes), as amended by Chapters 82, 790, 796, 886, and 900,
6-5 Acts of the 73rd Legislature, 1993, is amended to read as follows:
6-6 (f) A copy of the notice of suspension or denial and the
6-7 refusal report under Subsection (e) of this section shall be
6-8 forwarded by the officer to the department before the end of the
6-9 fifth business day after the date of the arrest. When the director
6-10 receives the report, the director shall suspend the person's
6-11 license, permit, or resident or nonresident privilege to operate a
6-12 motor vehicle on a public highway, or shall issue an order
6-13 prohibiting the person from obtaining a license or permit, for 90
6-14 days if the person is 21 years of age or older, or one year if the
6-15 person is younger than 21 years of age, effective 28 days after the
6-16 date the person receives notice by certified mail or 31 days after
6-17 the date the director sends notice by certified mail, if the person
6-18 has not accepted delivery of the notice. If, not later than the
6-19 20th day after the date on which the person receives notice by
6-20 certified mail or the 23rd day after the date the director sent
6-21 notice by certified mail, if the person has not accepted delivery
6-22 of the notice, the department receives a written demand that a
6-23 hearing be held, the department shall promptly make arrangements to
6-24 set the hearing for the earliest practical time. The hearing shall
6-25 be set in the same manner as a hearing under Section 22(a), Chapter
6-26 173, Acts of the 47th Legislature, Regular Session, 1941, as
6-27 amended (Article 6687b, Vernon's Texas Civil Statutes). If, upon
7-1 such hearing the hearing officer finds (1) that probable cause
7-2 existed that such person was driving or in actual physical control
7-3 of a motor vehicle in a public place while intoxicated or in
7-4 violation of Section 49.035, Penal Code, (2) that the person was
7-5 placed under arrest by the officer and was offered an opportunity
7-6 to give a specimen under the provisions of this Act, and (3) that
7-7 such person refused to give a specimen upon request of the officer,
7-8 then the Director of the Texas Department of Public Safety shall
7-9 suspend the person's license or permit to drive, or any nonresident
7-10 operating privilege for a period of 90 days if the person is 21
7-11 years of age or older, or for a period of not more than one year if
7-12 the person is younger than 21 years of age. If the person is a
7-13 resident without a license or permit to operate a motor vehicle in
7-14 this State, the Texas Department of Public Safety shall deny to
7-15 the person the issuance of a license or permit for 90 days if the
7-16 person is 21 years of age or older, or for a period of not more
7-17 than one year if the person is younger than 21 years of age. If,
7-18 after a hearing has been requested, the person or the person's
7-19 agent fails to appear at a hearing under this subsection, the
7-20 department shall suspend the person's license, permit, or resident
7-21 or nonresident operating privilege for 90 days.
7-22 SECTION 6. Section 24(a-1), Chapter 173, Acts of the 47th
7-23 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
7-24 Civil Statutes), is amended to read as follows:
7-25 (a-1) The license of any person who was younger than 21
7-26 years of age at the time of the offense, other than a misdemeanor
7-27 punishable by fine only, shall be automatically suspended on
8-1 conviction of:
8-2 (1) an offense under Section 49.035 or 49.04, Penal
8-3 Code;
8-4 (2) an offense under Article 6701l-1, Revised
8-5 Statutes, committed as a result of the introduction of alcohol into
8-6 the body;
8-7 (3) <(2)> an offense under the Alcoholic Beverage Code
8-8 involving the manufacture, delivery, possession, transportation, or
8-9 use of an alcoholic beverage;
8-10 (4) <(3)> a misdemeanor offense under Chapter 481,
8-11 Health and Safety Code (Texas Controlled Substances Act), for which
8-12 Section 24B of this Act does not require the automatic suspension
8-13 of the license of the person;
8-14 (5) <(4)> an offense under Chapter 483, Health and
8-15 Safety Code, involving the manufacture, delivery, possession,
8-16 transportation, or use of a dangerous drug; or
8-17 (6) <(5)> an offense under Chapter 484, Health and
8-18 Safety Code, involving the manufacture, delivery, possession,
8-19 transportation, or use of a volatile chemical.
8-20 SECTION 7. This Act takes effect September 1, 1995.
8-21 SECTION 8. The importance of this legislation and the
8-22 crowded condition of the calendars in both houses create an
8-23 emergency and an imperative public necessity that the
8-24 constitutional rule requiring bills to be read on three several
8-25 days in each house be suspended, and this rule is hereby suspended.