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.