By Talton H.B. No. 2218
75R2378 PEP-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 driving, boating, or flying while intoxicated.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 38, Penal Code, is amended by adding
1-6 Section 38.17 to read as follows:
1-7 Sec. 38.17. CIRCUMVENTING DEVICE DESIGNED TO PREVENT DRIVING
1-8 WHILE INTOXICATED. (a) In this section, "device" means a device
1-9 approved by the Texas Department of Public Safety under Section
1-10 521.247, Transportation Code, that makes impractical the operation
1-11 of a motor vehicle if ethyl alcohol is detected in the breath of
1-12 the operator.
1-13 (b) A person commits an offense if the person, for the
1-14 purpose of allowing to operate a motor vehicle a person required to
1-15 have a device installed on the vehicle as a term of release on
1-16 bond, a condition of community supervision, or a driver's license
1-17 restriction, knowingly:
1-18 (1) fails to have the device installed or monitored as
1-19 required by law;
1-20 (2) tampers with the device in a manner likely to
1-21 affect the ability of the device to function properly;
1-22 (3) introduces or allows to be introduced into the
1-23 device any substance other than the person's breath; or
1-24 (4) operates another motor vehicle that is not
2-1 equipped with a device.
2-2 (c) Except as otherwise provided by Subsection (d), an
2-3 offense under this section is a Class B misdemeanor.
2-4 (d) An offense under Subsection (b)(3) is a Class A
2-5 misdemeanor if the person authorizes or induces a child younger
2-6 than 18 years of age to introduce the child's breath into the
2-7 device.
2-8 (e) It is an exception to the application of Subsection
2-9 (b)(4) that at the time of the commission of the offense, with
2-10 respect to the person required to have a device installed as a term
2-11 of release on bond, a condition of community supervision, or a
2-12 driver's license restriction:
2-13 (1) the person is required to operate the motor
2-14 vehicle in the course and scope of the person's employment;
2-15 (2) the person is operating the vehicle in the course
2-16 and scope of the person's employment;
2-17 (3) the vehicle is owned by the person's employer;
2-18 (4) the employer is not owned or controlled by the
2-19 person;
2-20 (5) the employer has received written notice from a
2-21 magistrate or court that the person is required to have a device
2-22 installed on the motor vehicle owned by the person or on the
2-23 vehicle most regularly driven by the person; and
2-24 (6) the person is carrying a copy of that notice in
2-25 the vehicle.
2-26 SECTION 2. Section 49.09(a), Penal Code, is amended to read
2-27 as follows:
3-1 (a) If it is shown on the trial of an offense under Section
3-2 49.04, 49.05, or 49.06 that the person has previously been
3-3 convicted one time of an offense relating to the operating of a
3-4 motor vehicle while intoxicated, an offense of operating an
3-5 aircraft while intoxicated, or an offense of operating a watercraft
3-6 while intoxicated, the offense is a Class A misdemeanor, with a
3-7 minimum term of continuous confinement of 30 days.
3-8 SECTION 3. Article 17.03(c), Code of Criminal Procedure, is
3-9 amended to read as follows:
3-10 (c) When setting a personal bond under this chapter, on
3-11 reasonable belief by the investigating or arresting law enforcement
3-12 agent or magistrate of the presence of a controlled substance in
3-13 the defendant's body or on the finding of drug or alcohol abuse
3-14 related to the offense for which the defendant is charged, the
3-15 court or a magistrate shall require as a condition of personal
3-16 bond, if the condition will serve to reasonably assure the
3-17 appearance of the defendant for trial or to protect the public
3-18 safety, that the defendant:
3-19 (1) submit to testing for alcohol or a controlled
3-20 substance in the defendant's body and participate in an alcohol or
3-21 drug abuse treatment or education program;
3-22 (2) comply with each condition of release required by
3-23 Article 17.441, regardless of whether the defendant is charged with
3-24 an offense under Chapter 49, Penal Code; or
3-25 (3) satisfy the requirements of both Subdivisions (1)
3-26 and (2) [if such a condition will serve to reasonably assure the
3-27 appearance of the defendant for trial].
4-1 SECTION 4. Article 17.441, Code of Criminal Procedure, is
4-2 amended to read as follows:
4-3 Art. 17.441. CONDITIONS REQUIRING MOTOR VEHICLE IGNITION
4-4 INTERLOCK. (a) Except as provided by Subsection (b), a magistrate
4-5 shall require on release that a defendant charged with a second or
4-6 subsequent offense under Section 49.04, 49.05, or 49.06 [Sections
4-7 49.04-49.06], Penal Code, or an offense under Section 49.07 or
4-8 49.08 of that code:
4-9 (1) have installed on the motor vehicle owned by the
4-10 defendant or on the vehicle most regularly operated [driven] by the
4-11 defendant, a device that uses a deep-lung breath analysis mechanism
4-12 to make impractical the operation of a motor vehicle if ethyl
4-13 alcohol is detected in the breath of the operator; and
4-14 (2) not operate any motor vehicle unless the vehicle
4-15 is equipped with such a [that] device.
4-16 (b) The magistrate is not required to prohibit a defendant
4-17 from operating a motor vehicle that is [may] not equipped with
4-18 [require] the [installation of the] device if:
4-19 (1) the defendant is required to operate the motor
4-20 vehicle in the course and scope of the defendant's employment;
4-21 (2) the vehicle is owned by the defendant's employer;
4-22 (3) the employer is not owned or controlled by the
4-23 defendant;
4-24 (4) the magistrate sends to the employer written
4-25 notice that the person is required to have a device installed on
4-26 the motor vehicle owned by the person or on the vehicle most
4-27 regularly operated by the person; and
5-1 (5) the magistrate requires the defendant to carry a
5-2 copy of that notice in the vehicle at any time the defendant is
5-3 operating the vehicle [the magistrate finds that to require the
5-4 device would not be in the best interest of justice].
5-5 (c) If the defendant is required to have the device
5-6 installed, the magistrate shall require that the defendant have the
5-7 device installed on the appropriate motor vehicle, at the
5-8 defendant's expense, before the seventh [30th] day after the date
5-9 the defendant is released on bond.
5-10 (d) The magistrate shall [may] designate an appropriate
5-11 agency to verify the installation of the device and to monitor the
5-12 defendant's compliance with this article [device]. The defendant
5-13 shall provide a copy of the magistrate's order to the agency,
5-14 report to an interlock ignition device vendor designated by the
5-15 agency at least once every 60 days for inspection of the device,
5-16 and make available on request by the agency or by the magistrate
5-17 daily activity data collected and maintained by the device. The
5-18 agency shall verify installation of the device and shall report any
5-19 violation of this article or of the magistrate's order to the
5-20 magistrate. The vendor shall take action as necessary to ensure
5-21 that the effective operation of the device is properly maintained
5-22 and shall report to the agency regarding any failure of the
5-23 defendant to timely report or to otherwise comply with the
5-24 conditions of this article.
5-25 (e) The defendant shall pay a fee of $10 to the agency at
5-26 the time the agency verifies the installation and each time that
5-27 the agency provides a monitoring service under this subsection.
6-1 The agency may charge and collect from the defendant an additional
6-2 fee in a reasonable amount to cover the cost of reporting a
6-3 violation to the magistrate under this article.
6-4 (f) A device installed under this article must comply with
6-5 each rule adopted by the Department of Public Safety under Section
6-6 521.247, Transportation Code.
6-7 (g) If the court in which the defendant's case is pending
6-8 discovers that a magistrate failed to comply with Subsection
6-9 (a)(1), the court shall order the defendant to appear before the
6-10 court not later than the 15th day after the date the court
6-11 discovers the failure. At the appearance, the court shall order
6-12 the defendant to have a device described by Subsection (a)(1)
6-13 installed in the appropriate vehicle as required by this article,
6-14 except that the seven-day installation requirement runs from the
6-15 date of the appearance.
6-16 SECTION 5. Section 13(i), Article 42.12, Code of Criminal
6-17 Procedure, is amended to read as follows:
6-18 (i) If a person convicted of an offense under Section 49.04,
6-19 49.05, or 49.06 [Sections 49.04-49.08], Penal Code, is placed on
6-20 community supervision, the court may require as a condition of
6-21 community supervision that the defendant have a device installed,
6-22 on the motor vehicle owned by the defendant or on the vehicle most
6-23 regularly operated [driven] by the defendant, that uses a deep-lung
6-24 breath analysis mechanism to make impractical the operation of the
6-25 motor vehicle if ethyl alcohol is detected in the breath of the
6-26 operator and that the defendant not operate any motor vehicle that
6-27 is not equipped with that device. If the person is convicted of an
7-1 offense under Section 49.04, 49.05, or 49.06 [Sections
7-2 49.04-49.06], Penal Code, and punished under Section 49.09(a) or
7-3 (b), Penal Code, or is convicted of an [a second or subsequent]
7-4 offense under Section 49.07 or 49.08, Penal Code, and the person
7-5 after conviction of the [either] offense is placed on community
7-6 supervision, the court shall require as a condition of community
7-7 supervision that the defendant have the device installed on the
7-8 appropriate vehicle, regardless of whether the defendant intends to
7-9 operate the vehicle, and that the defendant not operate any motor
7-10 vehicle unless the vehicle is equipped with that device. Before
7-11 placing on community supervision a person convicted of an offense
7-12 under Section 49.04, 49.05, or 49.06 [Sections 49.04-49.08], Penal
7-13 Code, the court shall determine from criminal history record
7-14 information maintained by the Department of Public Safety whether
7-15 the person has one or more previous convictions under any one of
7-16 those sections [Sections 49.04-49.08, Penal Code, or has one
7-17 previous conviction under Sections 49.04-49.07, Penal Code, or one
7-18 previous conviction under Section 49.08, Penal Code]. If the court
7-19 determines that the person has one or more such previous
7-20 convictions, the court shall require as a condition of community
7-21 supervision that the defendant have that device installed on the
7-22 motor vehicle owned by the defendant or on the vehicle most
7-23 regularly operated [driven] by the defendant, regardless of whether
7-24 the defendant intends to operate the vehicle, and that the
7-25 defendant not operate any motor vehicle unless the vehicle is
7-26 equipped with the device described in this subsection. The court
7-27 shall require the defendant to obtain the device at the defendant's
8-1 own cost before the seventh [30th] day after the date of conviction
8-2 [unless the court finds that to do so would not be in the best
8-3 interest of justice and enters its findings on record]. The court
8-4 shall designate an appropriate agency to verify the installation of
8-5 the device and to monitor the defendant's compliance with this
8-6 subsection. The court shall require the defendant to provide
8-7 evidence to the court or to the monitoring agency before the 30th
8-8 day after the date of sentencing [within the 30-day period] that
8-9 the device has been installed on the appropriate vehicle and shall
8-10 order the device to remain installed on that vehicle for a period
8-11 not less than 50 percent of the supervision period. The defendant
8-12 shall provide a copy of the court's order to the agency, report to
8-13 an ignition interlock device vendor designated by the agency at
8-14 least once every 60 days for inspection of the device, and make
8-15 available on request by the agency or by the court daily activity
8-16 data collected and maintained by the device. The agency shall
8-17 verify installation of the device and shall report any violation of
8-18 this article or of the court's order to the court. The vendor
8-19 shall take action as necessary to ensure that the effective
8-20 operation of the device is properly maintained and shall report to
8-21 the agency regarding any failure of the defendant to timely report
8-22 or to otherwise comply with the conditions of this subsection. The
8-23 defendant shall pay a fee of $10 to the agency at the time the
8-24 agency verifies the installation and each time that the agency
8-25 provides a monitoring service under this subsection. The agency
8-26 may charge and collect from the defendant an additional fee in a
8-27 reasonable amount to cover the cost of reporting a violation to the
9-1 court under this subsection. If the court determines the defendant
9-2 [offender] is unable to pay for installation or monitoring of the
9-3 device, the court may impose a reasonable payment schedule not to
9-4 exceed twice the period of the court's order. A device installed
9-5 under this subsection must comply with each rule adopted by the
9-6 [The] Department of Public Safety [shall approve devices for use]
9-7 under [this subsection. The provisions of] Section 521.247,
9-8 Transportation Code [23A(f), Chapter 173, Acts of the 47th
9-9 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
9-10 Civil Statutes), apply to the approval of a device under this
9-11 subsection and the consequences of that approval]. Notwithstanding
9-12 the preceding provisions of this subsection [section], [if] a
9-13 person [is required to operate a motor vehicle in the course and
9-14 scope of the person's employment and if the vehicle is owned by the
9-15 employer, the person] may operate a motor [that] vehicle without
9-16 installation of an approved ignition interlock device if the person
9-17 is required to operate the motor vehicle in the course and scope of
9-18 the person's employment, the vehicle is owned by the person's
9-19 employer, the employer is not owned or controlled by the person,
9-20 the court sends to the employer notice that the person is required
9-21 to have a device installed on the motor vehicle owned by the person
9-22 or on the vehicle most regularly operated by the person, and the
9-23 court requires the person to carry a copy [has been notified of
9-24 that driving privilege restriction and if proof] of that notice in
9-25 [notification is with] the vehicle at any time the person is
9-26 operating the vehicle. [This employment exemption does not apply,
9-27 however, if the business entity that owns the vehicle is owned or
10-1 controlled by the person whose driving privilege has been
10-2 restricted.]
10-3 SECTION 6. Sections 13(k) and (l), Article 42.12, Code of
10-4 Criminal Procedure, are amended to read as follows:
10-5 (k)(1) Except as provided by Subdivision (2) of this
10-6 subsection, notwithstanding [Notwithstanding] Section 521.344(d),
10-7 Transportation Code [24(g), Chapter 173, Acts of the 47th
10-8 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
10-9 Civil Statutes)], if the judge, under Subsection (h) or (j) of this
10-10 section, permits or requires a defendant punished under Section
10-11 49.09, Penal Code, to attend an educational program as a condition
10-12 of community supervision, or waives the required attendance for
10-13 such a program, and the defendant has previously been required to
10-14 attend such a program, or the required attendance at the program
10-15 had been waived, the judge nonetheless shall order the suspension
10-16 of the driver's license, permit, or operating privilege of that
10-17 person for a period determined by the judge according to the
10-18 following schedule:
10-19 (A) [(1)] not less than 90 days or more than 365
10-20 days, if the defendant is convicted under Section 49.04, 49.05,
10-21 49.06, 49.07, or 49.08 [Sections 49.04-49.08], Penal Code; or
10-22 (B) [(2)] not less than 180 days or more than
10-23 two years, if the defendant is punished under Section 49.09, Penal
10-24 Code.
10-25 (2) Subdivision (1) of this subsection does not apply
10-26 to a defendant placed on community supervision and required as a
10-27 condition of community supervision to not operate a motor vehicle
11-1 unless the vehicle is equipped with the device described by
11-2 Subsection (i) of this section.
11-3 (l)(1) Except as provided by Subdivision (2) of this
11-4 subsection, if [If] the Department of Public Safety receives notice
11-5 that a defendant has been required or permitted to attend a
11-6 subsequent educational program under Subsection (h), (j), or (k) of
11-7 this section, although the previously required attendance had been
11-8 waived, but the judge has not ordered a period of suspension, the
11-9 department shall suspend the defendant's driver's license, permit,
11-10 or operating privilege, or shall issue an order prohibiting the
11-11 defendant from obtaining a license or permit for a period of 365
11-12 days.
11-13 (2) Subdivision (1) of this subsection does not apply
11-14 to a defendant placed on community supervision and required as a
11-15 condition of community supervision to not operate a motor vehicle
11-16 unless the vehicle is equipped with the device described by
11-17 Subsection (i) of this section.
11-18 SECTION 7. Sections 521.246(a), (b), (c), and (e),
11-19 Transportation Code, are amended to read as follows:
11-20 (a) If the person's license has been suspended after a
11-21 conviction under Section [49.04,] 49.07[,] or 49.08, Penal Code,
11-22 the judge shall restrict the person to the operation of a motor
11-23 vehicle equipped with an ignition interlock device [, before
11-24 signing an order, shall determine from the criminal history record
11-25 information maintained by the department whether the person has any
11-26 previous conviction under those laws].
11-27 (b) If the person's license has been suspended after a
12-1 conviction under Section 49.04, 49.05, or 49.06, Penal Code, the
12-2 judge, before signing an order, shall determine from the criminal
12-3 history record information maintained by the department whether the
12-4 person has a previous conviction under any one of those sections.
12-5 As part of the order, the judge shall restrict the person to the
12-6 operation of a motor vehicle equipped with an ignition interlock
12-7 device if the judge determines that[:]
12-8 [(1)] the person has such a previous conviction [one
12-9 or more convictions under Section 49.08, Penal Code;]
12-10 [(2) the person has two or more convictions under any
12-11 combination of Section 49.04, 49.07, or 49.08, Penal Code; or]
12-12 [(3) the person's license has been suspended after a
12-13 conviction under Section 49.04, Penal Code, for which the person
12-14 has been punished under Section 49.09, Penal Code].
12-15 (c) The person shall obtain the ignition interlock device
12-16 and have the device monitored at the person's own expense [unless
12-17 the court finds that to do so is not in the best interest of
12-18 justice and enters that finding in the record]. If the court
12-19 determines that the person is unable to pay for the installation or
12-20 monitoring of the device, the court may impose a reasonable payment
12-21 schedule for a term not to exceed twice the period of the court's
12-22 order.
12-23 (e) A person to whom this section applies may operate a
12-24 motor vehicle without the installation of an approved ignition
12-25 interlock device if:
12-26 (1) the person is required to operate a motor vehicle
12-27 in the course and scope of the person's employment;
13-1 (2) the vehicle is owned by the person's employer;
13-2 (3) the employer is not owned or controlled by the
13-3 person whose operating [driving] privilege is restricted;
13-4 (4) the court sends to the employer notice that the
13-5 person is required to have a device installed on the motor vehicle
13-6 owned by the person or on the vehicle most regularly operated by
13-7 the person [is notified of the driving privilege restriction]; and
13-8 (5) the court requires the person to carry a copy
13-9 [proof] of that notice in [notification is with] the vehicle at
13-10 any time the person is operating the vehicle.
13-11 SECTION 8. (a) This Act takes effect September 1, 1997.
13-12 (b) The changes in law made by Sections 2, 5, 6, and 7 of
13-13 this Act apply only to a person convicted of an offense committed
13-14 on or after the effective date of this Act. An offense committed
13-15 before the effective date of this Act is covered by the law in
13-16 effect when the offense was committed, and the former law is
13-17 continued in effect for that purpose. For purposes of this
13-18 subsection, an offense was committed before the effective date of
13-19 this Act if any element of the offense occurred before that date.
13-20 SECTION 9. The importance of this legislation and the
13-21 crowded condition of the calendars in both houses create an
13-22 emergency and an imperative public necessity that the
13-23 constitutional rule requiring bills to be read on three several
13-24 days in each house be suspended, and this rule is hereby suspended.