Amend CSHB 3489 as follows: (1) In SECTION 2 of the bill, on page 4, line 16, strike "(d) If a video of a defendant is not made" and substitute "(d) Except as provided by Subsection (e), if a video of a defendant is not made". (2) In SECTION 2 of the bill, on page 4, between lines 23 and 24, insert the following: (e) If a videotape of a defendant is not made because of a malfunction in the county's videotaping equipment: (1) the provisions of Subsection (d) making the analysis of the specimen or the defendant's refusal inadmissible do not apply; and (2) if the unavailability of the videotape is not because of the fault of the defendant, the jury shall be instructed that it may infer that the videotape, if the videotape were to have been available, would have been unfavorable to the prosecution's case against the defendant.