AEZ C.S.H.B. 821 75(R)BILL ANALYSIS CRIMINAL JURISPRUDENCE C.S.H.B. 821 By: Keel 4-17-97 Committee Report (Substituted) BACKGROUND An officer who is called out to the scene of a collision involving an "intoxicated" driver, as defined by Sec. 49.01 (2) of the Penal Code, has no legal authority to arrest the intoxicated driver (barring other aggravating factors) due to the fact that the officer did not personally witness the driving, regardless of the number of witnesses at the scene who can place the intoxicated driver behind the wheel. The legal impediment is Art. 14.03 of the Code of Criminal Procedure, which addresses the authority of peace officers to make warrantless arrests. Art. 14.03 mandates that an officer may only make a warrantless arrest if there is a "breach of the peace" or offense under 49.02 of the Penal Code (Public Intoxication). By case law, a "breach of the peace," for purposes here, is basically the offense of "public intoxication." To be guilty of the offense of public intoxication, one must be intoxicated to the degree that the offender poses a danger to himself/herself or to others. This is a much higher level of intoxication than that required to be guilty of the offense of driving while intoxicated. In other words, the definition of "intoxicated" for the purposes of the DWI law is dramatically different than the definition of "intoxicated" within the meaning of the Public Intoxication statute (and, therefore, Art. 14.03). Generally a police officer will make an arrest in this type of situation. However, if the legality of the arrest is challenged, a correct ruling by a judge would result in the suppression of all evidence obtained by an officer after the arrest (i.e. breath test results or video tape evidence). Law enforcement officers need sufficient authority to investigate and arrest without warrants in circumstances which reasonably show one may be guilty of driving while intoxicated. Such authority would be consistent with the legislative intent "intoxicated". PURPOSE C.S.H.B. 821, as proposed, would allow the investigation and arrest of all intoxication related offenses in Chapter 49 of the Penal Code. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1.Amends Article 14.03(a) (1), Code of Criminal Procedure, Authority of Peace Officers, by allowing that any peace officer may arrest without warrant persons found in suspicious places and under circumstances that indicated that the persons have been guilty of some felony of Chapter 42, Penal Code, Disorderly Conduct and Related Offenses or an offense under Chapter 49,02, Penal Code, Public Intoxication. SECTION 2.The change in law made by this Act applies only to an arrest that occurs on or after the effective date of the Act. SECTION 3. Effective date: September 1, 1997. SECTION 4. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The original bill had allowed that the peace officer may arrest without warrant a person for an offense under Chapter 49, Penal Code, Intoxication and Alcoholic Beverage Offenses. The substitute limits the arrests to Chapter 49.02, Public Intoxication.