1-1 By: Zaffirini S.B. No. 521
1-2 (In the Senate - Filed February 10, 1995; February 13, 1995,
1-3 read first time and referred to Committee on State Affairs;
1-4 April 4, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 13, Nays 0; April 4, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 521 By: Rosson
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the civil and criminal consequences of an arrest or
1-11 conviction for an offense involving the operation of a motor
1-12 vehicle while intoxicated.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Section 1, Article 6687b-1, Revised Statutes, is
1-15 amended by amending Subdivisions (1), (2), and (5) and by adding
1-16 Subdivision (7) to read as follows:
1-17 (1) "Alcohol concentration" has the meaning assigned
1-18 by Section 49.01 <Article 6701l-1(a)>, Penal Code <Revised
1-19 Statutes>.
1-20 (2) "Alcohol-related or drug-related enforcement
1-21 contact" means a <driver's> license suspension, disqualification,
1-22 or prohibition order under the laws of this state or another state
1-23 following:
1-24 (A) conviction of an offense prohibiting the
1-25 operation of a motor vehicle while intoxicated, while under the
1-26 influence of alcohol, or while under the influence of a controlled
1-27 substance;
1-28 (B) a refusal to submit to the taking of a blood
1-29 or breath specimen following an arrest for an offense prohibiting
1-30 the operation of a motor vehicle while intoxicated, while under the
1-31 influence of alcohol, or while under the influence of a controlled
1-32 substance; or
1-33 (C) an analysis of a blood or breath specimen
1-34 showing an alcohol concentration of a level specified in Section
1-35 49.01(2)(B) <Article 6701l-1(a)>, Penal Code <Revised Statutes>,
1-36 following an arrest for an offense prohibiting the operation of a
1-37 motor vehicle while intoxicated.
1-38 (5) "License" <"Driver's license"> has the meaning
1-39 assigned by Section 1(3), Chapter 173, Acts of the 47th
1-40 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
1-41 Civil Statutes).
1-42 (7) "Intoxicated" has the meaning assigned by Section
1-43 49.01(2), Penal Code.
1-44 SECTION 2. Section 2, Article 6687b-1, Revised Statutes, is
1-45 amended to read as follows:
1-46 Sec. 2. (a) If a person arrested for an offense under
1-47 <Article 6701l-1, Revised Statutes, or> Section 49.04
1-48 <19.05(a)(2)>, Penal Code, or under Section 49.07 or 49.08 of that
1-49 code if the offense involved the operation of a motor vehicle,
1-50 submits to the taking of a specimen of breath or blood and an
1-51 analysis of the specimen shows the person had an alcohol
1-52 concentration of a level specified in Section 49.01(2)(B) <Article
1-53 6701l-1(a)(2)(B)>, Penal Code <Revised Statutes>, the arresting
1-54 officer shall serve notice of <driver's> license suspension or
1-55 prohibition personally on the arrested person.
1-56 (b) If a person arrested for an offense under <Article
1-57 6701l-1, Revised Statutes, or> Section 49.04 <19.05(a)(2)>, Penal
1-58 Code, or under Section 49.07 or 49.08 of that code if the offense
1-59 involved the operation of a motor vehicle, submits to the taking of
1-60 a specimen of breath or blood and an analysis of the specimen is
1-61 not returned to the arresting officer before the person is admitted
1-62 to bail, released from custody, or committed to jail, the arresting
1-63 officer shall attempt to serve notice of <driver's> license
1-64 suspension or prohibition personally on the arrested person.
1-65 (c) A copy of the notice of suspension or prohibition shall
1-66 be sent by the officer to the department before the end of the
1-67 fifth business day after the date of the arrest.
1-68 (d) The department shall develop forms for notices of
2-1 suspension and prohibition that shall be used by all state and
2-2 local law enforcement agencies.
2-3 SECTION 3. Section 3, Article 6687b-1, Revised Statutes, is
2-4 amended by amending Subsection (a) and by adding Subsection (c) to
2-5 read as follows:
2-6 (a) A peace officer who arrests a person for an offense
2-7 under <Article 6701l-1, Revised Statutes, or> Section 49.04
2-8 <19.05(a)(2)>, Penal Code, or under Section 49.07 or 49.08 of that
2-9 code if the offense involved the operation of a motor vehicle,
2-10 shall, before the end of the fifth business day after the date of
2-11 the arrest, send the department a <sworn> report of information
2-12 relevant to the arrest, if analysis of the specimen showed an
2-13 alcohol concentration of a level specified in Section 49.01(2)(B)
2-14 <Article 6701l-1(a)(2)(B)>, Penal Code <Revised Statutes>. The
2-15 report shall identify the arrested person, include a statement
2-16 under oath of <state> the officer's grounds for believing that the
2-17 person committed the offense, and give the analysis of the
2-18 specimen<, and include a copy of the criminal complaint filed in
2-19 the case>.
2-20 (c) A report submitted by a peace officer under Subsection
2-21 (a) of this section is a governmental record for the purposes of
2-22 Section 37.10, Penal Code.
2-23 SECTION 4. Section 4, Article 6687b-1, Revised Statutes, is
2-24 amended to read as follows:
2-25 Sec. 4. (a) On receipt of a report of a peace officer under
2-26 this article, if the officer did not serve notice of suspension or
2-27 prohibition of <driver's> license at the time of obtaining the
2-28 results of the analysis of the blood or breath specimen, the
2-29 department, in accordance with Section 5 of this article, shall
2-30 make the determination and issue notice of <driver's> license
2-31 suspension or prohibition if required.
2-32 (b) In the event that the officer did not serve notice of
2-33 suspension or prohibition of <driver's> license in accordance with
2-34 Section 5 of this article, the department shall mail<, by certified
2-35 mail,> notice of suspension or prohibition to the address of the
2-36 person, as shown by the records of the department, or <and> to the
2-37 address given in the peace officer's report, if different. Notice
2-38 is presumed received on the fifth day after the day it is mailed.
2-39 (c) A notice of suspension or prohibition must clearly state
2-40 the reason and statutory grounds for suspension or prohibition, the
2-41 effective date of suspension or prohibition, the right of the
2-42 person to a hearing, how to request a hearing, and the time limit
2-43 within which a request for a hearing must be made. If the
2-44 department does not suspend the person's <driver's> license or
2-45 prohibit the issuance of a license to the person, the department
2-46 shall notify the person of its determination and shall rescind any
2-47 notice of suspension or prohibition served on the person.
2-48 SECTION 5. Subsections (a), (b), and (d), Section 5, Article
2-49 6687b-1, Revised Statutes, are amended to read as follows:
2-50 (a) The department shall suspend the <driver's> license of a
2-51 person or prohibit the person from obtaining a license if it
2-52 determines that the person had an alcohol concentration of a level
2-53 specified in Section 49.01(2)(B) <Article 6701l-1(a)(2)(B)>, Penal
2-54 Code <Revised Statutes>, while driving or operating a motor vehicle
2-55 in a public place.
2-56 (b) The department may not suspend the <driver's> license of
2-57 a person or prohibit the issuance of a license to the person if the
2-58 analysis of the person's breath or blood, submitted at the request
2-59 of a peace officer, determined that the person had an alcohol
2-60 concentration of a level below that specified in Section
2-61 49.01(2)(B) <Article 6701l-1(a)(2)(B)>, Penal Code <Revised
2-62 Statutes>, at the time of taking the specimen.
2-63 (d) The determination of the department is a civil matter,
2-64 is independent of and is not an estoppel as to any matter in issue
2-65 in an adjudication of a criminal charge arising from the occurrence
2-66 that is the basis for the suspension or prohibition, and does not
2-67 preclude litigation of the same or similar facts in a criminal
2-68 prosecution. Except as provided by this subsection, the
2-69 disposition of a criminal charge does not affect a <driver's>
2-70 license suspension or prohibition under this article and is not an
3-1 estoppel as to any matter in issue in a <driver's> license
3-2 suspension or prohibition proceeding under this article. Provided,
3-3 that if a criminal charge under <Article 6701l-1, Revised Statutes,
3-4 or> Section 49.04, 49.07, or 49.08 <19.05(a)(2)>, Penal Code,
3-5 results in an acquittal, a suspension or prohibition under this
3-6 article shall not be imposed. If a suspension or prohibition under
3-7 this article has already been imposed, the department shall rescind
3-8 the suspension or prohibition and remove references to the
3-9 suspension or prohibition from the computerized driving record of
3-10 the individual.
3-11 SECTION 6. Section 6, Article 6687b-1, Revised Statutes, is
3-12 amended to read as follows:
3-13 Sec. 6. (a) A <driver's> license suspension or prohibition
3-14 under this article takes effect on the 40th day after the date on
3-15 which:
3-16 (1) the person received notice from the officer under
3-17 Section 2 of this article; or
3-18 (2) the person is presumed to have received notice of
3-19 suspension or prohibition from the department by mail under Section
3-20 4 of this article.
3-21 (b) A period of suspension or prohibition under this article
3-22 is:
3-23 (1) 60 days if the person's driving record shows no
3-24 prior alcohol-related or drug-related enforcement contact during
3-25 the five years immediately preceding the date of the person's
3-26 arrest; or
3-27 (2) 120 days if the person's driving record shows one
3-28 or more alcohol-related or drug-related enforcement contacts, as
3-29 defined in Section 1(2)(B) or (C) of this article, during the five
3-30 years immediately preceding the date of the person's arrest; or
3-31 (3) 180 days if the person's driving record shows one
3-32 or more alcohol-related or drug-related enforcement contacts, as
3-33 defined in Section 1(2)(A) of this article, during the five years
3-34 immediately preceding the date of the person's arrest.
3-35 (c) If a person's <driver's> license is suspended or the
3-36 person is prohibited from being issued a license under this article
3-37 and the person is also convicted of an offense under <Article
3-38 6701l-1, Revised Statutes, or> Section 49.04 <19.05(a)(2)>, Penal
3-39 Code, or of an offense involving the operation of a motor vehicle
3-40 under Section 49.07 or 49.08 of that code, arising out of the same
3-41 occurrence, the license suspensions and prohibitions required by
3-42 this article and by Section 24, Chapter 173, Acts of the 47th
3-43 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
3-44 Civil Statutes), or Section 25, Texas Commercial Driver's License
3-45 Act (Article 6687b-2, Revised Statutes), shall all be imposed.
3-46 Provided, that the court shall credit toward the period of
3-47 suspension or prohibition <of a person's license> required by
3-48 Section 24, Chapter 173, Acts of the 47th Legislature, Regular
3-49 Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes), or by
3-50 Section 25, Texas Commercial Driver's License Act (Article 6687b-2,
3-51 Revised Statutes), a period of suspension or prohibition imposed
3-52 under this article if the suspension or prohibition arose from the
3-53 same offense for which the court is suspending the person's
3-54 license. The court may not extend the credit to a person who has
3-55 been previously convicted of an offense under Article 6701l-1,
3-56 Revised Statutes, or Section 19.05(a)(2), Penal Code, as those laws
3-57 existed before September 1, 1994, an offense under Section 49.04,
3-58 Penal Code, or an offense involving the operation of a motor
3-59 vehicle under Section 49.07 or 49.08 of that code.
3-60 SECTION 7. Subsections (a), (b), (d), (f), (g), (h), (j),
3-61 (l), (m), (n), (o), and (p), Section 7, Article 6687b-1, Revised
3-62 Statutes, are amended to read as follows:
3-63 (a) A person who receives notice of suspension or
3-64 prohibition under this article may request a hearing in writing,
3-65 including facsimile transmissions, or by other manner prescribed by
3-66 the department. A request must be received by the department at
3-67 its headquarters in Austin not later than the 15th day after the
3-68 date notice of suspension or prohibition was given under Section 2
3-69 of this article or the 15th day after the date the person is
3-70 presumed to have received notice by mail under Section 4 of this
4-1 article. The department shall schedule the hearing. The hearing
4-2 shall be held before the effective date of the suspension or
4-3 prohibition. A request for a hearing stays the suspension or
4-4 prohibition <of driver's license> until the date of the final
4-5 decision of the administrative law judge. For the purpose of a
4-6 hearing, jurisdiction is vested in an administrative law judge
4-7 employed by the chief administrative law judge of the State Office
4-8 of Administrative Hearings.
4-9 (b) A hearing shall be held at a location designated by the
4-10 State Office of Administrative Hearings in the county in which the
4-11 person was alleged to have committed the offense for which the
4-12 person was arrested or at a site designated by the State Office of
4-13 Administrative Hearings no more than 75 miles from the county seat
4-14 of the county of the arrest, except as provided by Subsection (c)
4-15 of this section. Provided that in counties with a population of
4-16 300,000 or more according to the most recent federal census,
4-17 hearings shall be held in the county of arrest, unless held as
4-18 provided in Subsection (c) of this section. A hearing shall be
4-19 held not less than 10 days after the date of notification to the
4-20 person, unless the parties agree to waive this requirement. The
4-21 State Office of Administrative Hearings shall provide for the
4-22 stenographic or electronic recording of all hearings. The issue at
4-23 a hearing is whether, by a preponderance of the evidence, the
4-24 person had an alcohol concentration of a level specified in Section
4-25 49.01(2)(B) <Article 6701l-1(a)(2)(B)>, Penal Code <Revised
4-26 Statutes>, while driving or in actual physical control of a motor
4-27 vehicle in a public place, and reasonable suspicion to stop and
4-28 <or> probable cause <existed> to <stop or> arrest the person
4-29 existed. If the administrative law judge finds in the affirmative
4-30 as to this issue, the suspension or prohibition order shall be
4-31 sustained. If the administrative law judge does not find in the
4-32 affirmative as to this issue, the department may not suspend <shall
4-33 reinstate> any license or prohibit<, permit, or privilege to
4-34 operate a motor vehicle and shall rescind an order prohibiting> the
4-35 issuance of a license <or permit>.
4-36 (d) The administrative law judge may not make an affirmative
4-37 finding under this section if the analysis of the person's breath
4-38 or blood, submitted at the request of a peace officer, determined
4-39 that the person had an alcohol concentration of a level below that
4-40 specified in Section 49.01(2)(B) <Article 6701l-1(a)>, Penal Code
4-41 <Revised Statutes>, at the time of taking the specimen.
4-42 (f) Notwithstanding Subsection (a) of this section, if no
4-43 later than five days before the date of a scheduled hearing the
4-44 department has received a request for a continuance from the person
4-45 who has requested a hearing, the department shall reschedule the
4-46 hearing to a date no sooner than the fifth day after the date on
4-47 which the matter was scheduled for the hearing <department received
4-48 the request for the continuance>, unless otherwise agreed by both
4-49 parties. A continuance under this section stays a suspension or
4-50 prohibition of a <driver's> license until the date of the final
4-51 decision of the administrative law judge. A person who has
4-52 requested a hearing under this article may obtain only one
4-53 continuance under this subsection, unless a bona fide medical
4-54 condition be shown which prevents the person from attending the
4-55 hearing in which case one additional continuance may be granted for
4-56 a period not to exceed 10 days.
4-57 (g) A person whose <driver's> license is <has been>
4-58 suspended or who is prohibited from being issued a license after a
4-59 hearing under this section may appeal the suspension or prohibition
4-60 by filing within 30 days after the date that the administrative law
4-61 judge's final determination is issued a petition in a county court
4-62 at law in the county where the person was arrested or, if there is
4-63 no county court at law in the county, in the county court of the
4-64 county. If the county judge is not a licensed attorney, the county
4-65 judge shall transfer the case to a district court for the county on
4-66 the motion of either party or of the judge.
4-67 (h) Except as provided by this subsection, filing an appeal
4-68 petition does not stay a suspension or prohibition. The filing of
4-69 an appeal petition stays a suspension or prohibition if the
4-70 person's <driver's> license has not been suspended as a result of
5-1 any alcohol-related or drug-related enforcement contact, as defined
5-2 in Section 1, Article 6687b-1, Revised Statutes, in the five years
5-3 immediately preceding the date of the person's arrest, and the
5-4 person has not been convicted under Article 6701l-1, Revised
5-5 Statutes, or Section 19.05(a)(2), Penal Code, as those laws existed
5-6 before September 1, 1994, an offense under Section 49.04, Penal
5-7 Code, or an offense involving the operation of a motor vehicle
5-8 under Section 49.07 or 49.08 of that code, in the 10 years
5-9 immediately preceding the date of the person's arrest, regardless
5-10 of whether the prior alcohol-related or drug-related contact or
5-11 conviction occurred prior to the effective date of this article. A
5-12 stay shall only be effective for a period of 90 days from the
5-13 filing of an appeal petition, and on the expiration of that period
5-14 the department shall impose the suspension or prohibition
5-15 previously ordered by the department. No extension of the stay or
5-16 additional stay order may be granted by the department or the
5-17 court. On appeal, review is on the record certified by the State
5-18 Office of Administrative Hearings with no additional testimony
5-19 except as provided by Subsection (j) of this section. Review shall
5-20 be based on the substantial evidence rule.
5-21 (j) On appeal, any party may apply to the court for leave to
5-22 present additional evidence, and the court, if satisfied that the
5-23 additional information is material and that there were good reasons
5-24 for the failure to present it in the hearing before an
5-25 administrative law judge, may order that the additional evidence be
5-26 taken before an administrative law judge on conditions determined
5-27 by the court. An administrative law judge may modify a prior
5-28 determination as to whether the person had an alcohol concentration
5-29 of a level specified in Section 49.01(2)(B) <Article 6701l-1(a)>,
5-30 Penal Code <Revised Statutes>, by reason of the additional
5-31 evidence. The administrative law judge shall file the evidence and
5-32 any modifications. A remand under this subsection does not stay
5-33 the suspension or prohibition <of a driver's license>.
5-34 (l) A suspension or prohibition under this article may not
5-35 be probated.
5-36 (m)(1) In a proceeding under this article:
5-37 (A) <,> the reliability of an instrument used to
5-38 take or analyze a specimen of a person's breath to determine
5-39 alcohol concentration and the validity of the results of the
5-40 analysis may be attested to by affidavit from the certified breath
5-41 test technical supervisor who is responsible for maintaining and
5-42 directing the operation of breath test instruments in compliance
5-43 with the rules of the department; and
5-44 (B) the chemical analysis of the specimen of the
5-45 person's blood or urine may be attested to by affidavit from the
5-46 individual who performed the analysis.
5-47 (2) An affidavit submitted under Subdivision (1)(A) of
5-48 this subsection must contain statements on the reliability of the
5-49 instrument and the analytical results and on compliance with state
5-50 law in the administration of the program. An affidavit of an
5-51 expert witness contesting the reliability of the instrument or the
5-52 results is admissible.
5-53 (3) Except as provided by Subsection (n) of this
5-54 section, the affidavit may be submitted in lieu of an appearance at
5-55 the hearing by the breath test operator, breath test technical
5-56 supervisor, individual who performed the chemical analysis, or
5-57 expert witness.
5-58 (n) Notwithstanding Subsection (m) of this section, if no
5-59 later than five business days before the date of a scheduled
5-60 hearing the department receives from the person who has requested
5-61 the hearing written notice, including facsimile transmissions,
5-62 requesting the presence at the hearing of the person who took the
5-63 specimen of the person's breath to determine alcohol concentration,
5-64 <or> the certified breath test technical supervisor who was
5-65 responsible for maintaining and directing the operation of the
5-66 breath test instrument used to analyze the specimen of the person's
5-67 breath, or the individual who performed the chemical analysis
5-68 <both>, each requested person must appear at the hearing. The
5-69 technical supervisor may designate another technical supervisor to
5-70 appear for that person at the hearing. The department may
6-1 reschedule a hearing once at least 48 hours before the time of the
6-2 hearing if a person requested under this section is unavailable.
6-3 In addition, the department may reschedule the hearing on a showing
6-4 of good cause if the requested person is not available at the time
6-5 of the hearing. A suspension or prohibition order may not go into
6-6 effect pending a final decision of the administrative law judge as
6-7 a result of a continuance granted under this subsection. If any
6-8 person whose presence is timely requested under this subsection
6-9 fails to appear at the hearing, without a showing of good cause, an
6-10 affidavit from that witness is inadmissible.
6-11 (o) A person whose <driver's> license is suspended under
6-12 this section is subject to Section 34, Chapter 173, Acts of the
6-13 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
6-14 Texas Civil Statutes).
6-15 (p) Chapter 2001, Government Code, <The Administrative
6-16 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
6-17 Civil Statutes)> applies to proceedings under this article to the
6-18 extent not inconsistent with this article. The State Office of
6-19 Administrative Hearings shall adopt rules that may conflict with
6-20 Chapter 2001, Government Code, <the Administrative Procedure and
6-21 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
6-22 Statutes)> as necessary to expedite the hearings process within the
6-23 time limits required by this article and applicable federal funding
6-24 guidelines. Notice required by this section to be given by the
6-25 department may be given telephonically or by other electronic
6-26 means, and written notice shall follow if such means are used.
6-27 Notice by mail is presumed received on the fifth day after the date
6-28 it is deposited with the United States Postal Service. The
6-29 decision of the administrative law judge is final when issued and
6-30 signed and immediately appealable without the requirement of a
6-31 motion for rehearing.
6-32 SECTION 8. Subsections (b), (d), (f), (g), (h), and (i),
6-33 Section 2, as amended by Chapters 790, 796, and 886, Acts of the
6-34 73rd Legislature, 1993, and Subsections (l), (p), and (r), Section
6-35 2, Chapter 434, Acts of the 61st Legislature, Regular Session, 1969
6-36 (Article 6701l-5, Vernon's Texas Civil Statutes), are amended to
6-37 read as follows:
6-38 (b) Before requesting a person to give a specimen, the
6-39 officer shall inform the person orally and in writing that if the
6-40 person refuses to give the specimen, that refusal may be admissible
6-41 in a subsequent prosecution, and that the person's license, permit,
6-42 or privilege to operate a motor vehicle will be automatically
6-43 suspended for not less than 90 days if the person is 21 years of
6-44 age or older, or one year if the person is younger than 21 years of
6-45 age, whether or not the person is subsequently prosecuted as a
6-46 result of the arrest. The officer shall inform the person that if
6-47 the person gives a specimen designated by the officer, and an
6-48 analysis of the specimen shows the person had an alcohol
6-49 concentration of a level specified in Section 49.01(2)(B) <Article
6-50 6701l-1>, Penal Code <Revised Statutes>, the person's license,
6-51 permit, or privilege to operate a motor vehicle will be
6-52 automatically suspended for not less than 60 days, whether or not
6-53 the person is subsequently prosecuted as a result of the arrest.
6-54 If the officer determines that the person is a resident without a
6-55 license or permit to operate a motor vehicle in this state, the
6-56 officer shall inform the person that the Department of Public
6-57 Safety shall prohibit <deny to the person> the issuance of a
6-58 license or permit to the person for a period of not less than 90
6-59 days if the person is 21 years of age or older, or one year if the
6-60 person is younger than 21 years of age, if the person refuses to
6-61 give the specimen, or for a period of not less than 60 days if the
6-62 person gives a specimen designated by the officer, and an analysis
6-63 of the specimen shows the person had an alcohol concentration of a
6-64 level specified in Section 49.01(2)(B) <Article 6701l-1(a)(2)(B)>,
6-65 Penal Code <Revised Statutes>, whether or not the person is
6-66 subsequently prosecuted as a result of the arrest. The officer
6-67 shall inform the person that the person has a right to a hearing on
6-68 suspension or prohibition <denial> if, not later than the 15th day
6-69 after the date on which the person receives notice of suspension or
6-70 prohibition <denial> or the person is presumed to have received
7-1 notice of suspension or prohibition <denial> by mail as provided by
7-2 law, the department receives, at its headquarters in Austin, a
7-3 written demand, including facsimile transmissions, or a demand in
7-4 another form prescribed by the department, that the hearing be
7-5 held.
7-6 (d) If the person refuses to give a specimen, whether the
7-7 refusal was express or the result of an intentional failure of the
7-8 person to give a specimen as designated by the peace officer, the
7-9 officer before whom the refusal was made shall serve notice of
7-10 driver's license, permit, or privilege suspension or prohibition
7-11 <denial> to the person and make a written report of the refusal to
7-12 the Director of the Department of Public Safety.
7-13 (f) A copy of the notice of suspension or prohibition
7-14 <denial> and the <refusal> report under Subsection (e) of this
7-15 section shall be forwarded by the officer to the department before
7-16 the end of the fifth business day after the date of the arrest.
7-17 (g) The department shall develop forms for notices of
7-18 suspension or prohibition <denial> that shall be used by all state
7-19 and local law enforcement agencies.
7-20 (h) On receipt of a report of a peace officer under this
7-21 section, if the officer did not serve notice of suspension or
7-22 prohibition <denial> of driver's license, permit, or privilege at
7-23 the time of refusal to give a specimen, the department shall issue
7-24 notice to the person of driver's license suspension or prohibition.
7-25 In the event the officer did not serve notice of suspension or
7-26 prohibition at the time of refusal, the department shall mail
7-27 notice of suspension or prohibition<, by certified mail,> to the
7-28 address of the person, as shown by the records of the department,
7-29 or <and> to the address given in the peace officer's report, if
7-30 different. Notice is presumed received on the fifth day after the
7-31 date it is mailed. A notice of suspension or prohibition must
7-32 clearly state the reason and statutory grounds for and the
7-33 effective date of the action, the right of the person to a hearing,
7-34 how to request a hearing, and the period within which a request for
7-35 a hearing must be received by the department.
7-36 (i) If a person under arrest refuses on the request of a
7-37 peace officer to give a specimen designated by the peace officer as
7-38 provided in this Act, the person's license, permit, or privilege to
7-39 operate a motor vehicle on a public highway shall be suspended for
7-40 90 days if the person is 21 years of age or older, or one year if
7-41 the person is younger than 21 years of age, or, if the person is a
7-42 resident without a permit to operate a motor vehicle in this
7-43 state, the department shall issue an order prohibiting the person
7-44 from obtaining a license or permit for 90 days if the person is 21
7-45 years of age or older, or one year if the person is younger than 21
7-46 years of age. The period of suspension or prohibition under this
7-47 Act is 180 days if the person's driving record shows one or more
7-48 previous alcohol-related or drug-related enforcement contacts, as
7-49 defined in Section 1(2)(B) or (C), Article 6687b-1, Revised
7-50 Statutes, during the five years immediately preceding the date of
7-51 the person's arrest. The period of suspension or prohibition under
7-52 this Act is one year if the person's driving record shows one or
7-53 more previous alcohol-related or drug-related enforcement contacts,
7-54 as defined in Section 1(2)(A), Article 6687b-1, Revised Statutes,
7-55 during the five years immediately preceding the date of the
7-56 person's arrest. A suspension or prohibition under this section is
7-57 effective on the 40th day after the date on which the person
7-58 receives from an arresting officer notice of suspension or
7-59 prohibition <denial> under Subsection (d) of this section or the
7-60 40th day after the date on which the person is considered to have
7-61 received, from the department, notice of suspension or prohibition
7-62 by mail under Subsection (h) of this section.
7-63 (l) The issues at a hearing are:
7-64 (1) whether reasonable suspicion to stop and <or>
7-65 probable cause <existed> to <stop or> arrest the person existed;
7-66 (2) whether probable cause existed that the person was
7-67 driving or in actual physical control of a motor vehicle in a
7-68 public place while intoxicated;
7-69 (3) whether the person was placed under arrest by the
7-70 officer and was offered an opportunity to give a specimen under
8-1 this Act; and
8-2 (4) whether the person refused to give a specimen on
8-3 request of the officer.
8-4 (p) Notwithstanding the provisions of Subsection (j) of this
8-5 section, if no later than five days before the date of a scheduled
8-6 hearing the department has received a request for a continuance
8-7 from the person who has requested a hearing, the department shall
8-8 reschedule the hearing to a date no sooner than the fifth day after
8-9 the date on which the hearing was scheduled <department received
8-10 the request for the continuance>, unless otherwise agreed by both
8-11 parties. A continuance under this section stays a suspension or
8-12 prohibition of a driver's license, permit, or privilege until the
8-13 date of the final decision of the administrative law judge. A
8-14 person who has requested a hearing under this article may obtain
8-15 only one continuance under this subsection, unless a bona fide
8-16 medical condition be shown which prevents the person from attending
8-17 the hearing in which case one additional continuance may be granted
8-18 for a period not to exceed 10 days.
8-19 (r) The determination of the department or administrative
8-20 law judge is a civil matter, is independent of and is not an
8-21 estoppel as to any matter in issue in an adjudication of a criminal
8-22 charge arising from the occurrence that is the basis for the
8-23 suspension or prohibition, and does not preclude litigation of the
8-24 same or similar facts in a criminal prosecution. Except as
8-25 provided by this subsection, the disposition of a criminal charge
8-26 does not affect a driver's license suspension or prohibition under
8-27 this Act and is not an estoppel as to any matter in issue in a
8-28 suspension or prohibition proceeding under this Act. Provided,
8-29 that if a criminal charge under <Article 6701l-1, Revised Statutes,
8-30 or> Section 49.04, 49.07, or 49.08 <19.05(a)(2)>, Penal Code,
8-31 results in an acquittal, a suspension under this article shall not
8-32 be imposed. If a suspension under this article has already been
8-33 imposed, the department shall rescind the suspension and remove
8-34 references to the suspension from the computerized driving record
8-35 of the individual.
8-36 SECTION 9. (a) The change in law made by this Act applies
8-37 only to an offense committed on or after the effective date of this
8-38 Act. For purposes of this section, an offense is committed before
8-39 the effective date of this Act if any element of the offense occurs
8-40 before the effective date.
8-41 (b) An offense committed before the effective date of this
8-42 Act is covered by the law in effect when the offense was committed,
8-43 and the former law is continued in effect for this purpose.
8-44 SECTION 10. The importance of this legislation and the
8-45 crowded condition of the calendars in both houses create an
8-46 emergency and an imperative public necessity that the
8-47 constitutional rule requiring bills to be read on three several
8-48 days in each house be suspended, and this rule is hereby suspended,
8-49 and that this Act take effect and be in force from and after its
8-50 passage, and it is so enacted.
8-51 * * * * *