SRC-JBJ H.B. 1594 76(R)   BILL ANALYSIS


Senate Research Center   H.B. 1594
By: Talton
Criminal Justice
5/14/1999
Engrossed


DIGEST 

Current state law provides that anyone convicted of a second or subsequent
offense of driving while intoxicated (DWI) shall be required by a court to
have an ignition interlock device installed in the motor vehicle which the
person regularly operates.  The criminal justice system relies on several
codes working jointly to try, convict, and sentence a defendant.  This
interaction requires that the language in each section correspond.  H.B.
1594 would clarify and conform sections of the Penal Code, Code of Criminal
Procedure, and Transportation Code as they apply to DWI offenses.  This
bill also would also create an offense to circumvent the functionality of
an interlock device. 

PURPOSE

As proposed, H.B. 1594 amends regulations regarding to the penalty for
certain intoxication offenses and the conditions for release of a defendant
charged with or convicted of those offenses, including the use of an
ignition interlock device. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 38, Penal Code, by adding Section 38.17, as
follows: 

Sec.  38.17.  CIRCUMVENTING DEVICE DESIGNED TO PREVENT DRIVING WHILE UNDER
THE INFLUENCE OF ALCOHOL.  Defines "device" to mean a device approved by
the Texas Department of Public Safety (DPS) that makes impractical the
operation of a motor vehicle if ethyl alcohol is detected in the breath of
the operator.  Provides that it is a Class B misdemeanor if a person
knowingly fails to have a device installed, monitored, or calibrated, under
conditions set forth as a term of release on bond, community supervision,
or a driver's license restriction, or circumvents the functionality of the
device for the purpose it was required, including by operating another
vehicle that is not equipped with a device.  Provides that it is a Class A
misdemeanor if the person induces a person who is younger than 18 years of
age to introduce that person's breath into the device.  Provides that
under certain conditions where the person is operating a vehicle for and in
accordance with employment it is an exception to the prohibition against
operating another vehicle without a device. 

SECTION 2.  Amends Section 49.07, Penal Code, by amending Subsections (b)
and (c) and adding Subsection (d), to define "miscarriage" and "stillbirth"
and redefine "serious bodily injury."  Makes a felony of the second degree
an offense under this section that caused a pregnant woman to suffer a
miscarriage or stillbirth.  Makes conforming changes. 

SECTION 3.  Amends Section 49.09(a), Penal Code, to require a minimum term
of 15 days, rather than 30 days, of continuous confinement if on a trial
for operating a motor vehicle, aircraft, or watercraft while intoxicated it
is shown that the person was previously convicted one time of one of
certain offenses. 

SECTION 4.  Amends Article 17.03(c), Code of Criminal Procedure, to require
the court or magistrate releasing a defendant on personal bond to consider
the reasonable belief of any magistrate  as to the involvement of a
controlled substance or alcohol in the commission of the offense.  Includes
compliance with each condition of release required by Article 17.441
(Conditions Requiring Motor Vehicle Ignition  Interlock), Code of Criminal
Procedure, in the list of authorized conditions.  Authorizes requiring a
defendant to fulfill conditions required by Article 17.441 and submit to
testing for alcohol or a controlled substance or participation in a drug
abuse treatment or education program.  Creates Subdivision (1) from
existing text. Makes conforming and nonsubstantive changes. 

SECTION 5.  Amends Article 17.441, Code of Criminal Procedure, to limit
application of this section only to a defendant charged with operating a
motor vehicle, aircraft, or watercraft while intoxicated, who was shown to
have a blood alcohol concentration (BAC) of at least 0.15 or a previous
conviction of one of the these offenses within 10 years before the date of
the previous conviction, or charged with a second or subsequent offense of
assault or manslaughter while intoxicated, during this period. Provides
that  under certain conditions where the person is operating a vehicle for
and in accordance with employment it is an exception to the prohibition
against operating another vehicle without a device. Requires the defendant
to install the device before the seventh day after release on bond and to
apply for a special restricted license under Section 521.2465 (Restricted
Licenses), Transportation Code, before the 30th day after the date of the
notice provided under that section.  Requires, rather than authorizes, the
magistrate to designate an appropriate monitoring agency or entity to
verify installation of the device and defendant's compliance with this
article and requires notification of the agency or entity.  Authorizes a
magistrate, in a county without a monitoring agency or entity, to designate
a specific vendor or vendors for monitoring purposes.  Requires the
magistrate to send DPS a copy of the order requiring the installation.
Requires the defendant to provide a copy of the order to the designated
monitor or vendor approved by DPS, as may be required.  Requires the
defendant to report to the vendor at least once every 30 days for
monitoring and pay any contracted service fee.  Requires the vendor take
any necessary action to ensure the effective operation of the device, and
report the daily activity data collected to the magistrate or monitor on
request. Requires the monitor to verify installation of the device and
report any violations of this article.  Requires the defendant to pay the
monitor a $10 fee, and any additional fee requested by the monitor not to
exceed $25, at the time of visitation, unless the monitor is a vendor, in
which case the contract governs.  Requires the court in which the
defendant's case is pending to order the defendant to appear before the
court, within 15 days after the date the court discovers noncompliance, and
order a device be installed in accordance with this article if it is
discovered that a magistrate did not order installation of a device.  Makes
conforming and nonsubstantive changes. 

SECTION 6.  Amends Sections 13(a) and (b), Article 42.12, Code of Criminal
Procedure, to clarify that a defendant is subject to 72 hours, rather than
three days, of continuous confinement in a county jail or a community
corrections facility, if the defendant was punished under Section
49.09(b)(Enhanced Offenses and Penalties), Penal Code, or not less than 30
continuous days if convicted under Section 49.07 (Intoxication Assault),
Penal Code, or not less than 120 continuous days if convicted under Section
49.08 (Intoxication Manslaughter), Penal Code. Requires a judge to require
the defendant convicted under Sections 49.04-49.08, Penal Code, rather than
solely under Section 49.08, Penal Code, to submit to an evaluation for drug
or alcohol rehabilitation if the judge is granting community supervision.
Redesignates existing Subdivisions (2) and (3) to Subdivisions (3) and (4).
Makes conforming and nonsubstantive changes. 

SECTION 7.  Amends Section 13(i), Article 42.12, Code of Criminal
Procedure, to authorize a court to require a defendant convicted under only
Sections 49.04-49.06, Penal Code, rather than under Sections 49.04-49.08,
Penal Code, and placed on community supervision, as a condition of
supervision, to have a device installed.  Requires a court to require a
defendant convicted under Section 49.04-49.06, Penal Code, rather than
Sections 49.04-49.06, Penal Code, who was shown to have a BAC of at least
0.15 or a previous conviction of one of the these offenses within 10 years
before the date of the previous conviction, or charged with committing
assault or manslaughter while intoxicated and placed on community
supervision, as a condition of supervision, to have a device installed at
the defendant's own expense and to apply for a restricted license under
Section 521.2465 (Restricted Licenses), Transportation Code, before the 7th
day, rather than 30th day, after the date of the notice provided under that
section.  Requires the court to designate and notify the appropriate
monitoring person, agency, or entity.  Authorizes the defendant to provide
evidence required under this section to the monitoring agency before the
30th day after the date of sentencing.  Requires the court to order the
defendant to maintain installation of the device.  Requires the court to
order the defendant to maintain installation for at least 18 months for any
term of community supervision exceeding 18 months.  Requires the court to
send DPS a copy of the court's order.  Requires the defendant to provide a
copy of the court order to monitor and vendor approved by DPS.  Requires
the defendant to report to the vendor at least once every 30 days for
monitoring and pay any contracted service fee.  Requires the vendor take
any  necessary action to ensure the effective operation of the device, and
report the daily activity data collected to the court or monitor on request
Requires the monitor to verify installation of the device and report any
violations of this article.  Requires the defendant to pay the monitor a
$10 fee, and any additional fee requested by the monitor not to exceed $25,
at the time of visitation, unless the monitor is a vendor, in which case
the contract governs.  Authorizes a court to set up a payment schedule not
to exceed twice the period of the court's order if it is determined that
the defendant is unable to pay all the costs of the device.  Provides that
under certain conditions where the person is operating a vehicle for and in
accordance with employment it is an exception to the prohibition against
operating another vehicle without a device.  Makes conforming and
nonsubstantive changes. 

SECTION 8.  Amends Sections 13(k) and (l), Article 42.12, Code of Criminal
Procedure, to set forth Subdivision (2) of this subsection and Section
521.344(d) Transportation Code, rather than Section 24(g), Chapter 173,
Acts of the 47th Legislature, Regular Session, 1941 (Article 6687b,
V.T.C.S.), as governing any conflicts found in this section.  Applies
Sections 49.04-49.08, Penal Code, Paragraph (A) of this section.  Prohibits
application of Subdivision (1) to a defendant placed on community
supervision and requires as a condition to not operate a motor vehicle
unless the vehicle is equipped with a device. Provides that Subdivision (2)
is an exception to Subdivision (1).  Prohibits application of Subdivision
(1) to a defendant placed on community supervision and required as a
condition to not operate a motor vehicle unless the vehicle is equipped
with a device.  Redesignates Subdivisions (1) and (2) to Paragraphs (A) and
(B).  Makes conforming and nonsubstantive changes. 

SECTION 9.  Amends Section 509.004(a), Government Code, to require each
community supervision and corrections department (department) to also
submit periodic data regarding devices in use and the number of violations
detected and reported, the number of attempts to circumvent the devices,
and a description of the resulting actions taken by a court. 

SECTION 10.  Amends Section 521.242, Transportation Code, by amending
Subsection (b) and adding Subsection (f), to provide that a petition filed
under Subsection (b) (relating to reinstatement of a license suspended
under circumstances not including certain offenses) or under Subsection (f)
must state that the petitioner was convicted in that court for an offense
under the laws of the state, or restricted by that court to the operation
of a motor vehicle equipped with an ignition interlock device under Article
17.441 (Conditions requiring motor vehicle ignition interlock), Code of
Criminal Procedure. Authorizes a person who has been restricted by court
order to the operation of a motor vehicle with an interlock device to apply
for an occupational license by filing a verified petition only with the
clerk of the court that required the device.  Provides that the verified
petition must be filed with the clerk of the district court in the
jurisdiction where the applicant resides or that the offense occurred if
the applicant had been restricted under Article 17.441. 

SECTION 11.  Amends Section 521.246, Transportation Code, to apply this
section to Sections 49.0449.06, Penal Code, rather than Sections 49.07 and
49.08, Penal Code.  Requires the court to verify the analysis of the
defendant's BAC and relevant criminal history and requires a court to
restrict a defendant convicted under the above sections, who was shown to
have a BAC of at least 0.15 or a previous conviction of one of these
offenses within 10 years before the date of the previous conviction, to
operation of a motor vehicle equipped with an ignition interlock device.
Requires a judge who restricts a person to the operation of a motor vehicle
equipped with an ignition interlock device, to impose on the person each
condition of release that must be imposed on a person as a condition of
release on community supervision under Section 13(i), Article 42.12, Code
of Criminal Procedure.   

SECTION 12.  Amends Section 521.2465(b), Transportation Code, to require
DPS to issue a person a driver's license without the restriction on
expiration of the period during which a person is restricted to operation
of motor vehicle equipped with an ignition interlock device, as indicated
by a copy of the court order imposing the restriction, as well as on
receipt of a court order removing the restriction. 

SECTION 13. (a) Effective date: September 1, 1999.

                         (b) Makes application of this Act prospective as
to Sections 2, 5, 6, 7, and 10 of this                               bill. 

SECTION 14.Emergency clause.