By: Zaffirini S.B. No. 521
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the civil and criminal consequences of an arrest or
1-2 conviction for an offense involving the operation of a motor
1-3 vehicle while intoxicated.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 1, Article 6687b-1, Revised Statutes, is
1-6 amended by amending Subdivisions (1), (2), and (5) and by adding
1-7 Subdivision (7) to read as follows:
1-8 (1) "Alcohol concentration" has the meaning assigned
1-9 by Section 49.01 <Article 6701l-1(a)>, Penal Code <Revised
1-10 Statutes>.
1-11 (2) "Alcohol-related or drug-related enforcement
1-12 contact" means a <driver's> license suspension, disqualification,
1-13 or prohibition order under the laws of this state or another state
1-14 following:
1-15 (A) conviction of an offense prohibiting the
1-16 operation of a motor vehicle while intoxicated, while under the
1-17 influence of alcohol, or while under the influence of a controlled
1-18 substance;
1-19 (B) a refusal to submit to the taking of a blood
1-20 or breath specimen following an arrest for an offense prohibiting
1-21 the operation of a motor vehicle while intoxicated, while under the
1-22 influence of alcohol, or while under the influence of a controlled
1-23 substance; or
1-24 (C) an analysis of a blood or breath specimen
2-1 showing an alcohol concentration of a level specified in Section
2-2 49.01(2)(B) <Article 6701l-1(a)>, Penal Code <Revised Statutes>,
2-3 following an arrest for an offense prohibiting the operation of a
2-4 motor vehicle while intoxicated.
2-5 (5) "License" <"Driver's license"> has the meaning
2-6 assigned by Section 1(3), Chapter 173, Acts of the 47th
2-7 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
2-8 Civil Statutes).
2-9 (7) "Intoxicated" has the meaning assigned by Section
2-10 49.01(2), Penal Code.
2-11 SECTION 2. Section 2, Article 6687b-1, Revised Statutes, is
2-12 amended to read as follows:
2-13 Sec. 2. (a) If a person arrested for an offense under
2-14 <Article 6701l-1, Revised Statutes, or> Section 49.04
2-15 <19.05(a)(2)>, Penal Code, or under Section 49.07 or 49.08 of that
2-16 code if the offense involved the operation of a motor vehicle,
2-17 submits to the taking of a specimen of breath or blood and an
2-18 analysis of the specimen shows the person had an alcohol
2-19 concentration of a level specified in Section 49.01(2)(B) <Article
2-20 6701l-1(a)(2)(B)>, Penal Code <Revised Statutes>, the arresting
2-21 officer shall serve notice of <driver's> license suspension or
2-22 prohibition personally on the arrested person.
2-23 (b) If a person arrested for an offense under <Article
2-24 6701l-1, Revised Statutes, or> Section 49.04 <19.05(a)(2)>, Penal
2-25 Code, or under Section 49.07 or 49.08 of that code if the offense
2-26 involved the operation of a motor vehicle, submits to the taking of
2-27 a specimen of breath or blood and an analysis of the specimen is
3-1 not returned to the arresting officer before the person is admitted
3-2 to bail, released from custody, or committed to jail, the arresting
3-3 officer shall attempt to serve notice of <driver's> license
3-4 suspension or prohibition personally on the arrested person.
3-5 (c) A copy of the notice of suspension or prohibition shall
3-6 be sent by the officer to the department before the end of the
3-7 fifth business day after the date of the arrest.
3-8 (d) The department shall develop forms for notices of
3-9 suspension and prohibition that shall be used by all state and
3-10 local law enforcement agencies.
3-11 SECTION 3. Section 3, Article 6687b-1, Revised Statutes, is
3-12 amended by amending Subsection (a) and by adding Subsection (c) to
3-13 read as follows:
3-14 (a) A peace officer who arrests a person for an offense
3-15 under <Article 6701l-1, Revised Statutes, or> Section 49.04
3-16 <19.05(a)(2)>, Penal Code, or under Section 49.07 or 49.08 of that
3-17 code if the offense involved the operation of a motor vehicle,
3-18 shall, before the end of the fifth business day after the date of
3-19 the arrest, send the department a <sworn> report of information
3-20 relevant to the arrest, if analysis of the specimen showed an
3-21 alcohol concentration of a level specified in Section 49.01(2)(B)
3-22 <Article 6701l-1(a)(2)(B)>, Penal Code <Revised Statutes>. The
3-23 report shall identify the arrested person, include a statement
3-24 under oath of <state> the officer's grounds for believing that the
3-25 person committed the offense, and give the analysis of the
3-26 specimen<, and include a copy of the criminal complaint filed in
3-27 the case>.
4-1 (c) A report submitted by a peace officer under Subsection
4-2 (a) of this section is a governmental record for the purposes of
4-3 Section 37.10, Penal Code.
4-4 SECTION 4. Section 4, Article 6687b-1, Revised Statutes, is
4-5 amended to read as follows:
4-6 Sec. 4. (a) On receipt of a report of a peace officer under
4-7 this article, if the officer did not serve notice of suspension or
4-8 prohibition of <driver's> license at the time of obtaining the
4-9 results of the analysis of the blood or breath specimen, the
4-10 department, in accordance with Section 5 of this article, shall
4-11 make the determination and issue notice of <driver's> license
4-12 suspension or prohibition if required.
4-13 (b) In the event that the officer did not serve notice of
4-14 suspension or prohibition of <driver's> license in accordance with
4-15 Section 5 of this article, the department shall mail<, by certified
4-16 mail,> notice of suspension or prohibition to the address of the
4-17 person, as shown by the records of the department, or <and> to the
4-18 address given in the peace officer's report, if different. Notice
4-19 is presumed received on the fifth day after the day it is mailed.
4-20 (c) A notice of suspension or prohibition must clearly state
4-21 the reason and statutory grounds for suspension or prohibition, the
4-22 effective date of suspension or prohibition, the right of the
4-23 person to a hearing, how to request a hearing, and the time limit
4-24 within which a request for a hearing must be made. If the
4-25 department does not suspend the person's <driver's> license or
4-26 prohibit the issuance of a license to the person, the department
4-27 shall notify the person of its determination and shall rescind any
5-1 notice of suspension or prohibition served on the person.
5-2 SECTION 5. Subsections (a), (b), and (d), Section 5, Article
5-3 6687b-1, Revised Statutes, are amended to read as follows:
5-4 (a) The department shall suspend the <driver's> license of a
5-5 person or prohibit the person from obtaining a license if it
5-6 determines that the person had an alcohol concentration of a level
5-7 specified in Section 49.01(2)(B) <Article 6701l-1(a)(2)(B)>, Penal
5-8 Code <Revised Statutes>, while driving or operating a motor vehicle
5-9 in a public place.
5-10 (b) The department may not suspend the <driver's> license of
5-11 a person or prohibit the issuance of a license to the person if the
5-12 analysis of the person's breath or blood, submitted at the request
5-13 of a peace officer, determined that the person had an alcohol
5-14 concentration of a level below that specified in Section
5-15 49.01(2)(B) <Article 6701l-1(a)(2)(B)>, Penal Code <Revised
5-16 Statutes>, at the time of taking the specimen.
5-17 (d) The determination of the department is a civil matter,
5-18 is independent of and is not an estoppel as to any matter in issue
5-19 in an adjudication of a criminal charge arising from the occurrence
5-20 that is the basis for the suspension or prohibition, and does not
5-21 preclude litigation of the same or similar facts in a criminal
5-22 prosecution. Except as provided by this subsection, the
5-23 disposition of a criminal charge does not affect a <driver's>
5-24 license suspension or prohibition under this article and is not an
5-25 estoppel as to any matter in issue in a <driver's> license
5-26 suspension or prohibition proceeding under this article. Provided,
5-27 that if a criminal charge under <Article 6701l-1, Revised Statutes,
6-1 or> Section 49.04, 49.07, or 49.08 <19.05(a)(2)>, Penal Code,
6-2 results in an acquittal, a suspension or prohibition under this
6-3 article shall not be imposed. If a suspension or prohibition under
6-4 this article has already been imposed, the department shall rescind
6-5 the suspension or prohibition and remove references to the
6-6 suspension or prohibition from the computerized driving record of
6-7 the individual.
6-8 SECTION 6. Section 6, Article 6687b-1, Revised Statutes, is
6-9 amended to read as follows:
6-10 Sec. 6. (a) A <driver's> license suspension or prohibition
6-11 under this article takes effect on the 40th day after the date on
6-12 which:
6-13 (1) the person received notice from the officer under
6-14 Section 2 of this article; or
6-15 (2) the person is presumed to have received notice of
6-16 suspension or prohibition from the department by mail under Section
6-17 4 of this article.
6-18 (b) A period of suspension or prohibition under this article
6-19 is:
6-20 (1) 60 days if the person's driving record shows no
6-21 prior alcohol-related or drug-related enforcement contact during
6-22 the five years immediately preceding the date of the person's
6-23 arrest; or
6-24 (2) 120 days if the person's driving record shows one
6-25 or more alcohol-related or drug-related enforcement contacts, as
6-26 defined in Section 1(2)(B) or (C) of this article, during the five
6-27 years immediately preceding the date of the person's arrest; or
7-1 (3) 180 days if the person's driving record shows one
7-2 or more alcohol-related or drug-related enforcement contacts, as
7-3 defined in Section 1(2)(A) of this article, during the five years
7-4 immediately preceding the date of the person's arrest.
7-5 (c) If a person's <driver's> license is suspended or the
7-6 person is prohibited from being issued a license under this article
7-7 and the person is also convicted of an offense under <Article
7-8 6701l-1, Revised Statutes, or> Section 49.04 <19.05(a)(2)>, Penal
7-9 Code, or of an offense involving the operation of a motor vehicle
7-10 under Section 49.07 or 49.08 of that code, arising out of the same
7-11 occurrence, the license suspensions and prohibitions required by
7-12 this article and by Section 24, Chapter 173, Acts of the 47th
7-13 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
7-14 Civil Statutes), or Section 25, Texas Commercial Driver's License
7-15 Act (Article 6687b-2, Revised Statutes), shall all be imposed.
7-16 Provided, that the court shall credit toward the period of
7-17 suspension or prohibition <of a person's license> required by
7-18 Section 24, Chapter 173, Acts of the 47th Legislature, Regular
7-19 Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes), or by
7-20 Section 25, Texas Commercial Driver's License Act (Article 6687b-2,
7-21 Revised Statutes), a period of suspension or prohibition imposed
7-22 under this article if the suspension or prohibition arose from the
7-23 same offense for which the court is suspending the person's
7-24 license. The court may not extend the credit to a person who has
7-25 been previously convicted of an offense under Article 6701l-1,
7-26 Revised Statutes, or Section 19.05(a)(2), Penal Code, as those laws
7-27 existed before September 1, 1994, an offense under Section 49.04,
8-1 Penal Code, or an offense involving the operation of a motor
8-2 vehicle under Section 49.07 or 49.08 of that code.
8-3 SECTION 7. Subsections (a), (b), (d), (f), (g), (h), (j),
8-4 (l), (m), (n), (o), and (p), Section 7, Article 6687b-1, Revised
8-5 Statutes, are amended to read as follows:
8-6 (a) A person who receives notice of suspension or
8-7 prohibition under this article may request a hearing in writing,
8-8 including facsimile transmissions, or by other manner prescribed by
8-9 the department. A request must be received by the department at
8-10 its headquarters in Austin not later than the 15th day after the
8-11 date notice of suspension or prohibition was given under Section 2
8-12 of this article or the 15th day after the date the person is
8-13 presumed to have received notice by mail under Section 4 of this
8-14 article. The department shall schedule the hearing. The hearing
8-15 shall be held before the effective date of the suspension or
8-16 prohibition. A request for a hearing stays the suspension or
8-17 prohibition <of driver's license> until the date of the final
8-18 decision of the administrative law judge. For the purpose of a
8-19 hearing, jurisdiction is vested in an administrative law judge
8-20 employed by the chief administrative law judge of the State Office
8-21 of Administrative Hearings.
8-22 (b) A hearing shall be held at a location designated by the
8-23 State Office of Administrative Hearings in the county in which the
8-24 person was alleged to have committed the offense for which the
8-25 person was arrested or at a site designated by the State Office of
8-26 Administrative Hearings no more than 75 miles from the county seat
8-27 of the county of the arrest, except as provided by Subsection (c)
9-1 of this section. Provided that in counties with a population of
9-2 300,000 or more according to the most recent federal census,
9-3 hearings shall be held in the county of arrest, unless held as
9-4 provided in Subsection (c) of this section. A hearing shall be
9-5 held not less than 10 days after the date of notification to the
9-6 person, unless the parties agree to waive this requirement. The
9-7 State Office of Administrative Hearings shall provide for the
9-8 stenographic or electronic recording of all hearings. The issue at
9-9 a hearing is whether, by a preponderance of the evidence, the
9-10 person had an alcohol concentration of a level specified in Section
9-11 49.01(2)(B) <Article 6701l-1(a)(2)(B)>, Penal Code <Revised
9-12 Statutes>, while driving or in actual physical control of a motor
9-13 vehicle in a public place, and reasonable suspicion to stop and
9-14 <or> probable cause <existed> to <stop or> arrest the person
9-15 existed. If the administrative law judge finds in the affirmative
9-16 as to this issue, the suspension or prohibition order shall be
9-17 sustained. If the administrative law judge does not find in the
9-18 affirmative as to this issue, the department may not suspend <shall
9-19 reinstate> any license or prohibit<, permit, or privilege to
9-20 operate a motor vehicle and shall rescind an order prohibiting> the
9-21 issuance of a license <or permit>.
9-22 (d) The administrative law judge may not make an affirmative
9-23 finding under this section if the analysis of the person's breath
9-24 or blood, submitted at the request of a peace officer, determined
9-25 that the person had an alcohol concentration of a level below that
9-26 specified in Section 49.01(2)(B) <Article 6701l-1(a)>, Penal Code
9-27 <Revised Statutes>, at the time of taking the specimen.
10-1 (f) Notwithstanding Subsection (a) of this section, if no
10-2 later than five days before the date of a scheduled hearing the
10-3 department has received a request for a continuance from the person
10-4 who has requested a hearing, the department shall reschedule the
10-5 hearing to a date no sooner than the fifth day after the date on
10-6 which the matter was scheduled for the hearing <department received
10-7 the request for the continuance>, unless otherwise agreed by both
10-8 parties. A continuance under this section stays a suspension or
10-9 prohibition of a <driver's> license until the date of the final
10-10 decision of the administrative law judge. A person who has
10-11 requested a hearing under this article may obtain only one
10-12 continuance under this subsection, unless a bona fide medical
10-13 condition be shown which prevents the person from attending the
10-14 hearing in which case one additional continuance may be granted for
10-15 a period not to exceed 10 days.
10-16 (g) A person whose <driver's> license is <has been>
10-17 suspended or who is prohibited from being issued a license after a
10-18 hearing under this section may appeal the suspension or prohibition
10-19 by filing within 30 days after the date that the administrative law
10-20 judge's final determination is issued a petition in a county court
10-21 at law in the county where the person was arrested or, if there is
10-22 no county court at law in the county, in the county court of the
10-23 county. If the county judge is not a licensed attorney, the county
10-24 judge shall transfer the case to a district court for the county on
10-25 the motion of either party or of the judge.
10-26 (h) Except as provided by this subsection, filing an appeal
10-27 petition does not stay a suspension or prohibition. The filing of
11-1 an appeal petition stays a suspension or prohibition if the
11-2 person's <driver's> license has not been suspended as a result of
11-3 any alcohol-related or drug-related enforcement contact, as defined
11-4 in Section 1, Article 6687b-1, Revised Statutes, in the five years
11-5 immediately preceding the date of the person's arrest, and the
11-6 person has not been convicted under Article 6701l-1, Revised
11-7 Statutes, or Section 19.05(a)(2), Penal Code, as those laws existed
11-8 before September 1, 1994, an offense under Section 49.04, Penal
11-9 Code, or an offense involving the operation of a motor vehicle
11-10 under Section 49.07 or 49.08 of that code, in the 10 years
11-11 immediately preceding the date of the person's arrest, regardless
11-12 of whether the prior alcohol-related or drug-related contact or
11-13 conviction occurred prior to the effective date of this article. A
11-14 stay shall only be effective for a period of 90 days from the
11-15 filing of an appeal petition, and on the expiration of that period
11-16 the department shall impose the suspension or prohibition
11-17 previously ordered by the department. No extension of the stay or
11-18 additional stay order may be granted by the department or the
11-19 court. On appeal, review is on the record certified by the State
11-20 Office of Administrative Hearings with no additional testimony
11-21 except as provided by Subsection (j) of this section. Review shall
11-22 be based on the substantial evidence rule.
11-23 (j) On appeal, any party may apply to the court for leave to
11-24 present additional evidence, and the court, if satisfied that the
11-25 additional information is material and that there were good reasons
11-26 for the failure to present it in the hearing before an
11-27 administrative law judge, may order that the additional evidence be
12-1 taken before an administrative law judge on conditions determined
12-2 by the court. An administrative law judge may modify a prior
12-3 determination as to whether the person had an alcohol concentration
12-4 of a level specified in Section 49.01(2)(B) <Article 6701l-1(a)>,
12-5 Penal Code <Revised Statutes>, by reason of the additional
12-6 evidence. The administrative law judge shall file the evidence and
12-7 any modifications. A remand under this subsection does not stay
12-8 the suspension or prohibition <of a driver's license>.
12-9 (l) A suspension or prohibition under this article may not
12-10 be probated.
12-11 (m)(1) In a proceeding under this article:
12-12 (A) <,> the reliability of an instrument used to
12-13 take or analyze a specimen of a person's breath to determine
12-14 alcohol concentration and the validity of the results of the
12-15 analysis may be attested to by affidavit from the certified breath
12-16 test technical supervisor who is responsible for maintaining and
12-17 directing the operation of breath test instruments in compliance
12-18 with the rules of the department; and
12-19 (B) the chemical analysis of the specimen of the
12-20 person's blood or urine may be attested to by affidavit from the
12-21 individual who performed the analysis.
12-22 (2) An affidavit submitted under Subdivision (1)(A) of
12-23 this subsection must contain statements on the reliability of the
12-24 instrument and the analytical results and on compliance with state
12-25 law in the administration of the program. An affidavit of an
12-26 expert witness contesting the reliability of the instrument or the
12-27 results is admissible.
13-1 (3) Except as provided by Subsection (n) of this
13-2 section, the affidavit may be submitted in lieu of an appearance at
13-3 the hearing by the breath test operator, breath test technical
13-4 supervisor, individual who performed the chemical analysis, or
13-5 expert witness.
13-6 (n) Notwithstanding Subsection (m) of this section, if no
13-7 later than five business days before the date of a scheduled
13-8 hearing the department receives from the person who has requested
13-9 the hearing written notice, including facsimile transmissions,
13-10 requesting the presence at the hearing of the person who took the
13-11 specimen of the person's breath to determine alcohol concentration,
13-12 <or> the certified breath test technical supervisor who was
13-13 responsible for maintaining and directing the operation of the
13-14 breath test instrument used to analyze the specimen of the person's
13-15 breath, or the individual who performed the chemical analysis
13-16 <both>, each requested person must appear at the hearing. The
13-17 technical supervisor may designate another technical supervisor to
13-18 appear for that person at the hearing. The department may
13-19 reschedule a hearing once at least 48 hours before the time of the
13-20 hearing if a person requested under this section is unavailable.
13-21 In addition, the department may reschedule the hearing on a showing
13-22 of good cause if the requested person is not available at the time
13-23 of the hearing. A suspension or prohibition order may not go into
13-24 effect pending a final decision of the administrative law judge as
13-25 a result of a continuance granted under this subsection. If any
13-26 person whose presence is timely requested under this subsection
13-27 fails to appear at the hearing, without a showing of good cause, an
14-1 affidavit from that witness is inadmissible.
14-2 (o) A person whose <driver's> license is suspended under
14-3 this section is subject to Section 34, Chapter 173, Acts of the
14-4 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
14-5 Texas Civil Statutes).
14-6 (p) Chapter 2001, Government Code, <The Administrative
14-7 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
14-8 Civil Statutes)> applies to proceedings under this article to the
14-9 extent not inconsistent with this article. The State Office of
14-10 Administrative Hearings shall adopt rules that may conflict with
14-11 Chapter 2001, Government Code, <the Administrative Procedure and
14-12 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
14-13 Statutes)> as necessary to expedite the hearings process within the
14-14 time limits required by this article and applicable federal funding
14-15 guidelines. Notice required by this section to be given by the
14-16 department may be given telephonically or by other electronic
14-17 means, and written notice shall follow if such means are used.
14-18 Notice by mail is presumed received on the fifth day after the date
14-19 it is deposited with the United States Postal Service. The
14-20 decision of the administrative law judge is final when issued and
14-21 signed and immediately appealable without the requirement of a
14-22 motion for rehearing.
14-23 SECTION 8. Subsections (b), (d), (f), (g), (h), and (i),
14-24 Section 2, as amended by Chapters 790, 796, and 886, Acts of the
14-25 73rd Legislature, 1993, and Subsections (l), (p), and (r), Section
14-26 2, Chapter 434, Acts of the 61st Legislature, Regular Session, 1969
14-27 (Article 6701l-5, Vernon's Texas Civil Statutes), are amended to
15-1 read as follows:
15-2 (b) Before requesting a person to give a specimen, the
15-3 officer shall inform the person orally and in writing that if the
15-4 person refuses to give the specimen, that refusal may be admissible
15-5 in a subsequent prosecution, and that the person's license, permit,
15-6 or privilege to operate a motor vehicle will be automatically
15-7 suspended for not less than 90 days if the person is 21 years of
15-8 age or older, or one year if the person is younger than 21 years of
15-9 age, whether or not the person is subsequently prosecuted as a
15-10 result of the arrest. The officer shall inform the person that if
15-11 the person gives a specimen designated by the officer, and an
15-12 analysis of the specimen shows the person had an alcohol
15-13 concentration of a level specified in Section 49.01(2)(B) <Article
15-14 6701l-1>, Penal Code <Revised Statutes>, the person's license,
15-15 permit, or privilege to operate a motor vehicle will be
15-16 automatically suspended for not less than 60 days, whether or not
15-17 the person is subsequently prosecuted as a result of the arrest.
15-18 If the officer determines that the person is a resident without a
15-19 license or permit to operate a motor vehicle in this state, the
15-20 officer shall inform the person that the Department of Public
15-21 Safety shall prohibit <deny to the person> the issuance of a
15-22 license or permit to the person for a period of not less than 90
15-23 days if the person is 21 years of age or older, or one year if the
15-24 person is younger than 21 years of age, if the person refuses to
15-25 give the specimen, or for a period of not less than 60 days if the
15-26 person gives a specimen designated by the officer, and an analysis
15-27 of the specimen shows the person had an alcohol concentration of a
16-1 level specified in Section 49.01(2)(B) <Article 6701l-1(a)(2)(B)>,
16-2 Penal Code <Revised Statutes>, whether or not the person is
16-3 subsequently prosecuted as a result of the arrest. The officer
16-4 shall inform the person that the person has a right to a hearing on
16-5 suspension or prohibition <denial> if, not later than the 15th day
16-6 after the date on which the person receives notice of suspension or
16-7 prohibition <denial> or the person is presumed to have received
16-8 notice of suspension or prohibition <denial> by mail as provided by
16-9 law, the department receives, at its headquarters in Austin, a
16-10 written demand, including facsimile transmissions, or a demand in
16-11 another form prescribed by the department, that the hearing be
16-12 held.
16-13 (d) If the person refuses to give a specimen, whether the
16-14 refusal was express or the result of an intentional failure of the
16-15 person to give a specimen as designated by the peace officer, the
16-16 officer before whom the refusal was made shall serve notice of
16-17 driver's license, permit, or privilege suspension or prohibition
16-18 <denial> to the person and make a written report of the refusal to
16-19 the Director of the Department of Public Safety.
16-20 (f) A copy of the notice of suspension or prohibition
16-21 <denial> and the <refusal> report under Subsection (e) of this
16-22 section shall be forwarded by the officer to the department before
16-23 the end of the fifth business day after the date of the arrest.
16-24 (g) The department shall develop forms for notices of
16-25 suspension or prohibition <denial> that shall be used by all state
16-26 and local law enforcement agencies.
16-27 (h) On receipt of a report of a peace officer under this
17-1 section, if the officer did not serve notice of suspension or
17-2 prohibition <denial> of driver's license, permit, or privilege at
17-3 the time of refusal to give a specimen, the department shall issue
17-4 notice to the person of driver's license suspension or prohibition.
17-5 In the event the officer did not serve notice of suspension or
17-6 prohibition at the time of refusal, the department shall mail
17-7 notice of suspension or prohibition<, by certified mail,> to the
17-8 address of the person, as shown by the records of the department,
17-9 or <and> to the address given in the peace officer's report, if
17-10 different. Notice is presumed received on the fifth day after the
17-11 date it is mailed. A notice of suspension or prohibition must
17-12 clearly state the reason and statutory grounds for and the
17-13 effective date of the action, the right of the person to a hearing,
17-14 how to request a hearing, and the period within which a request for
17-15 a hearing must be received by the department.
17-16 (i) If a person under arrest refuses on the request of a
17-17 peace officer to give a specimen designated by the peace officer as
17-18 provided in this Act, the person's license, permit, or privilege to
17-19 operate a motor vehicle on a public highway shall be suspended for
17-20 90 days if the person is 21 years of age or older, or one year if
17-21 the person is younger than 21 years of age, or, if the person is a
17-22 resident without a permit to operate a motor vehicle in this
17-23 state, the department shall issue an order prohibiting the person
17-24 from obtaining a license or permit for 90 days if the person is 21
17-25 years of age or older, or one year if the person is younger than 21
17-26 years of age. The period of suspension or prohibition under this
17-27 Act is 180 days if the person's driving record shows one or more
18-1 previous alcohol-related or drug-related enforcement contacts, as
18-2 defined in Section 1(2)(B) or (C), Article 6687b-1, Revised
18-3 Statutes, during the five years immediately preceding the date of
18-4 the person's arrest. The period of suspension or prohibition under
18-5 this Act is one year if the person's driving record shows one or
18-6 more previous alcohol-related or drug-related enforcement contacts,
18-7 as defined in Section 1(2)(A), Article 6687b-1, Revised Statutes,
18-8 during the five years immediately preceding the date of the
18-9 person's arrest. A suspension or prohibition under this section is
18-10 effective on the 40th day after the date on which the person
18-11 receives from an arresting officer notice of suspension or
18-12 prohibition <denial> under Subsection (d) of this section or the
18-13 40th day after the date on which the person is considered to have
18-14 received, from the department, notice of suspension or prohibition
18-15 by mail under Subsection (h) of this section.
18-16 (l) The issues at a hearing are:
18-17 (1) whether reasonable suspicion to stop and <or>
18-18 probable cause <existed> to <stop or> arrest the person existed;
18-19 (2) whether probable cause existed that the person was
18-20 driving or in actual physical control of a motor vehicle in a
18-21 public place while intoxicated;
18-22 (3) whether the person was placed under arrest by the
18-23 officer and was offered an opportunity to give a specimen under
18-24 this Act; and
18-25 (4) whether the person refused to give a specimen on
18-26 request of the officer.
18-27 (p) Notwithstanding the provisions of Subsection (j) of this
19-1 section, if no later than five days before the date of a scheduled
19-2 hearing the department has received a request for a continuance
19-3 from the person who has requested a hearing, the department shall
19-4 reschedule the hearing to a date no sooner than the fifth day after
19-5 the date on which the hearing was scheduled <department received
19-6 the request for the continuance>, unless otherwise agreed by both
19-7 parties. A continuance under this section stays a suspension or
19-8 prohibition of a driver's license, permit, or privilege until the
19-9 date of the final decision of the administrative law judge. A
19-10 person who has requested a hearing under this article may obtain
19-11 only one continuance under this subsection, unless a bona fide
19-12 medical condition be shown which prevents the person from attending
19-13 the hearing in which case one additional continuance may be granted
19-14 for a period not to exceed 10 days.
19-15 (r) The determination of the department or administrative
19-16 law judge is a civil matter, is independent of and is not an
19-17 estoppel as to any matter in issue in an adjudication of a criminal
19-18 charge arising from the occurrence that is the basis for the
19-19 suspension or prohibition, and does not preclude litigation of the
19-20 same or similar facts in a criminal prosecution. Except as
19-21 provided by this subsection, the disposition of a criminal charge
19-22 does not affect a driver's license suspension or prohibition under
19-23 this Act and is not an estoppel as to any matter in issue in a
19-24 suspension or prohibition proceeding under this Act. Provided,
19-25 that if a criminal charge under <Article 6701l-1, Revised Statutes,
19-26 or> Section 49.04, 49.07, or 49.08 <19.05(a)(2)>, Penal Code,
19-27 results in an acquittal, a suspension under this article shall not
20-1 be imposed. If a suspension under this article has already been
20-2 imposed, the department shall rescind the suspension and remove
20-3 references to the suspension from the computerized driving record
20-4 of the individual.
20-5 SECTION 9. (a) The change in law made by this Act applies
20-6 only to an offense committed on or after the effective date of this
20-7 Act. For purposes of this section, an offense is committed before
20-8 the effective date of this Act if any element of the offense occurs
20-9 before the effective date.
20-10 (b) An offense committed before the effective date of this
20-11 Act is covered by the law in effect when the offense was committed,
20-12 and the former law is continued in effect for this purpose.
20-13 SECTION 10. The importance of this legislation and the
20-14 crowded condition of the calendars in both houses create an
20-15 emergency and an imperative public necessity that the
20-16 constitutional rule requiring bills to be read on three several
20-17 days in each house be suspended, and this rule is hereby suspended,
20-18 and that this Act take effect and be in force from and after its
20-19 passage, and it is so enacted.