By Wolens H.B. No. 38
75R683 DWS-F
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; providing
1-5 penalties.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 49.01, Penal Code, is amended to read as
1-8 follows:
1-9 Sec. 49.01. DEFINITIONS. In this chapter:
1-10 (1) "Alcohol concentration" means the number of grams
1-11 of alcohol per:
1-12 (A) 210 liters of breath;
1-13 (B) 100 milliliters of blood; or
1-14 (C) 67 milliliters of urine.
1-15 (2) "Intoxicated" means:
1-16 (A) not having the normal use of mental or
1-17 physical faculties by reason of the introduction of alcohol, a
1-18 controlled substance, a drug, a dangerous drug, a combination of
1-19 two or more of those substances, or any other substance into the
1-20 body; or
1-21 (B) having an alcohol concentration of 0.10 or
1-22 more.
1-23 (3) "Motor vehicle" has the meaning assigned by
1-24 Section 32.34(a).
2-1 (4) "Under the influence of alcohol" means having an
2-2 alcohol concentration of 0.02 or more but less than 0.10.
2-3 (5) "Watercraft" means a vessel, one or more water
2-4 skis, an aquaplane, or another device used for transporting or
2-5 carrying a person on water, other than a device propelled only by
2-6 the current of water.
2-7 SECTION 2. Chapter 49, Penal Code, is amended by adding
2-8 Section 49.035 to read as follows:
2-9 Sec. 49.035. OPERATION OF A MOTOR VEHICLE BY MINOR UNDER THE
2-10 INFLUENCE OF ALCOHOL. (a) A person younger than 21 years of age
2-11 commits an offense if the person operates a motor vehicle in a
2-12 public place and is under the influence of alcohol.
2-13 (b) Except as provided by Subsection (c) and Section 49.09,
2-14 an offense under this section is a Class B misdemeanor, with a
2-15 minimum term of confinement of 72 hours.
2-16 (c) If it is shown on the trial of an offense under this
2-17 section that at the time of the offense the person operating the
2-18 motor vehicle had an open container of alcohol in the person's
2-19 immediate possession, the offense is a Class B misdemeanor, with a
2-20 minimum term of confinement of six days.
2-21 SECTION 3. Sections 49.09(a)-(e), Penal Code, are amended to
2-22 read as follows:
2-23 (a) If it is shown on the trial of an offense under Section
2-24 49.035, 49.04, 49.05, or 49.06 that the person has previously been
2-25 convicted one time of an offense relating to the operating of a
2-26 motor vehicle while intoxicated, an offense of operating an
2-27 aircraft while intoxicated, or an offense of operating a watercraft
3-1 while intoxicated, the offense is a Class A misdemeanor, with a
3-2 minimum term of confinement of 30 days.
3-3 (b) If it is shown on the trial of an offense under Section
3-4 49.035, 49.04, 49.05, or 49.06 that the person has previously been
3-5 convicted two times of an offense relating to the operating of a
3-6 motor vehicle while intoxicated, an offense of operating an
3-7 aircraft while intoxicated, or an offense of operating a watercraft
3-8 while intoxicated, the offense is a felony of the third degree.
3-9 (c) For the purposes of this section:
3-10 (1) "Offense relating to the operating of a motor
3-11 vehicle while intoxicated" means:
3-12 (A) an offense under Section 49.035 or 49.04;
3-13 (B) an offense under Section 49.07 or 49.08, if
3-14 the vehicle operated was a motor vehicle;
3-15 (C) an offense under Article 6701l-1, Revised
3-16 Statutes, as that law existed before September 1, 1994;
3-17 (D) an offense under Article 6701l-2, Revised
3-18 Statutes, as that law existed before January 1, 1984;
3-19 (E) an offense under Section 19.05(a)(2), as
3-20 that law existed before September 1, 1994, if the vehicle operated
3-21 was a motor vehicle; or
3-22 (F) an offense under the laws of another state
3-23 that prohibit the operation of a motor vehicle while intoxicated.
3-24 (2) "Offense of operating an aircraft while
3-25 intoxicated" means:
3-26 (A) an offense under Section 49.05;
3-27 (B) an offense under Section 49.07 or 49.08, if
4-1 the vehicle operated was an aircraft;
4-2 (C) an offense under Section 1, Chapter 46, Acts
4-3 of the 58th Legislature, Regular Session, 1963 (Article 46f-3,
4-4 Vernon's Texas Civil Statutes), as that law existed before
4-5 September 1, 1994;
4-6 (D) an offense under Section 19.05(a)(2), as
4-7 that law existed before September 1, 1994, if the vehicle operated
4-8 was an aircraft; or
4-9 (E) an offense under the laws of another state
4-10 that prohibit the operation of an aircraft while intoxicated.
4-11 (3) "Offense of operating a watercraft while
4-12 intoxicated" means:
4-13 (A) an offense under Section 49.06;
4-14 (B) an offense under Section 49.07 or 49.08, if
4-15 the vehicle operated was a watercraft;
4-16 (C) an offense under Section 31.097, Parks and
4-17 Wildlife Code, as that law existed before September 1, 1994;
4-18 (D) an offense under Section 19.05(a)(2), as
4-19 that law existed before September 1, 1994, if the vehicle operated
4-20 was a watercraft; or
4-21 (E) an offense under the laws of another state
4-22 that prohibit the operation of a watercraft while intoxicated.
4-23 (d) For the purposes of this section, a conviction for an
4-24 offense under Section 49.035, 49.04, 49.05, 49.06, 49.07, or 49.08
4-25 that occurs on or after September 1, 1994, is a final conviction,
4-26 whether the sentence for the conviction is imposed or probated.
4-27 (e) A conviction may not be used for purposes of enhancement
5-1 under this section if:
5-2 (1) the conviction was a final conviction under
5-3 Subsection (d) and was for an offense committed more than 10 years
5-4 before the offense for which the person is being tried was
5-5 committed; and
5-6 (2) the person has not been convicted of an offense
5-7 under Section 49.035, 49.04, 49.05, 49.06, 49.07, or 49.08 or any
5-8 offense related to operating a motor vehicle while intoxicated
5-9 committed within 10 years before the date on which the offense for
5-10 which the person is being tried was committed.
5-11 SECTION 4. Section 49.10, Penal Code, is amended to read as
5-12 follows:
5-13 Sec. 49.10. NO DEFENSE. In a prosecution under Section
5-14 49.03, 49.035, 49.04, 49.05, 49.06, 49.07, or 49.08, the fact that
5-15 the defendant is or has been entitled to use the alcohol,
5-16 controlled substance, drug, dangerous drug, or other substance is
5-17 not a defense.
5-18 SECTION 5. Section 724.011(a), Transportation Code, is
5-19 amended to read as follows:
5-20 (a) If a person is arrested for an offense arising out of
5-21 acts alleged to have been committed while the person was operating
5-22 a motor vehicle in a public place, or a watercraft, while
5-23 intoxicated, or operating a motor vehicle in violation of Section
5-24 49.035, Penal Code, the person is deemed to have consented, subject
5-25 to this chapter, to submit to the taking of one or more specimens
5-26 of the person's breath or blood for analysis to determine the
5-27 alcohol concentration or the presence in the person's body of a
6-1 controlled substance, drug, dangerous drug, or other substance.
6-2 SECTION 6. Section 724.012(a), Transportation Code, is
6-3 amended to read as follows:
6-4 (a) One or more specimens of a person's breath or blood may
6-5 be taken if the person is arrested and at the request of a peace
6-6 officer having reasonable grounds to believe the person:
6-7 (1) while intoxicated was operating a motor vehicle in
6-8 a public place, or a watercraft; or
6-9 (2) was operating a motor vehicle in violation of
6-10 Section 49.035, Penal Code.
6-11 SECTION 7. Section 724.032(b), Transportation Code, is
6-12 amended to read as follows:
6-13 (b) The director must approve the form of the refusal
6-14 report. The report must:
6-15 (1) show the grounds for the officer's belief that the
6-16 person had been operating a motor vehicle while intoxicated or in
6-17 violation of Section 49.035, Penal Code; and
6-18 (2) contain a copy of:
6-19 (A) the refusal statement requested under
6-20 Section 724.031; or
6-21 (B) a statement signed by the officer that the
6-22 person refused to:
6-23 (i) submit to the taking of the requested
6-24 specimen; and
6-25 (ii) sign the requested statement under
6-26 Section 724.031.
6-27 SECTION 8. Section 724.042, Transportation Code, is amended
7-1 to read as follows:
7-2 Sec. 724.042. Issues at Hearing. The issues at a hearing
7-3 under this subchapter are whether:
7-4 (1) reasonable suspicion or probable cause existed to
7-5 stop or arrest the person;
7-6 (2) probable cause existed to believe that the person
7-7 was operating a motor vehicle in a public place while intoxicated
7-8 or in violation of Section 49.035, Penal Code;
7-9 (3) the person was placed under arrest by the officer
7-10 and was requested to submit to the taking of a specimen; and
7-11 (4) the person refused to submit to the taking of a
7-12 specimen on request of the officer.
7-13 SECTION 9. (a) Section 521.342(a), Transportation Code, is
7-14 amended to conform to Section 77, Chapter 318, Acts of the 74th
7-15 Legislature, Regular Session, 1995, and further amended to read as
7-16 follows:
7-17 (a) Except as provided by Section 521.344, the [The] license
7-18 of a person who was under 21 years of age at the time of the
7-19 offense, other than an offense classified as a misdemeanor
7-20 punishable by fine only, is automatically suspended on conviction
7-21 of:
7-22 (1) an offense under Section 49.035, 49.04, or 49.07,
7-23 Penal Code, committed as a result of the introduction of alcohol
7-24 into the body;
7-25 (2) an offense under the Alcoholic Beverage Code
7-26 involving the manufacture, delivery, possession, transportation, or
7-27 use of an alcoholic beverage;
8-1 (3) a misdemeanor offense under Chapter 481, Health
8-2 and Safety Code, for which Subchapter P does not require the
8-3 automatic suspension of the license;
8-4 (4) an offense under Chapter 483, Health and Safety
8-5 Code, involving the manufacture, delivery, possession,
8-6 transportation, or use of a dangerous drug; or
8-7 (5) an offense under Chapter 484, Health and Safety
8-8 Code, involving the manufacture, delivery, possession,
8-9 transportation, or use of a volatile chemical.
8-10 (b) Section 77, Chapter 318, Acts of the 74th Legislature,
8-11 Regular Session, 1995, is repealed.
8-12 SECTION 10. (a) Section 521.342(b), Transportation Code, is
8-13 amended to conform to Section 79, Chapter 318, Acts of the 74th
8-14 Legislature, Regular Session, 1995, and further amended to read as
8-15 follows:
8-16 (b) The department shall suspend for one year the license of
8-17 a person who is under 21 years of age and is convicted of an
8-18 offense under Section 49.035, 49.04, 49.07, or 49.08, Penal Code,
8-19 regardless of whether the person is required to attend an
8-20 educational program under Section 13(h), Article 42.12, Code of
8-21 Criminal Procedure, that is designed to rehabilitate persons who
8-22 have operated motor vehicles while intoxicated, unless the person
8-23 is placed under community supervision under that article and is
8-24 required as a condition of the community supervision to not operate
8-25 a motor vehicle unless the vehicle is equipped with the device
8-26 described by Section 13(i) of that article. If the person is
8-27 required to attend such a program and does not complete the program
9-1 before the end of the person's suspension, the department shall
9-2 suspend the person's license or continue the suspension, as
9-3 appropriate, until the department receives proof that the person
9-4 has successfully completed the program. A person who completes the
9-5 program may submit proof of the completion to the clerk of the
9-6 convicting court. The clerk shall send the proof to the department
9-7 in the manner provided by Section 13(h), Article 42.12, Code of
9-8 Criminal Procedure.
9-9 (b) Section 79, Chapter 318, Acts of the 74th Legislature,
9-10 Regular Session, 1995, is repealed.
9-11 SECTION 11. This Act takes effect September 1, 1997.
9-12 SECTION 12. The importance of this legislation and the
9-13 crowded condition of the calendars in both houses create an
9-14 emergency and an imperative public necessity that the
9-15 constitutional rule requiring bills to be read on three several
9-16 days in each house be suspended, and this rule is hereby suspended.