HBA-KMH H.B. 1594 76(R) BILL ANALYSIS
Office of House Bill AnalysisH.B. 1594
By: Talton
Criminal Jurisprudence
3/19/1999
Introduced
BACKGROUND AND PURPOSE
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 clarifies and conforms sections of the Penal Code, Code of Criminal
Procedure, and Transportation Code as they apply to DWI offenses. This
bill also creates an offense to circumvent the functionality of an
interlock device.
RULEMAKING AUTHORITY
It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution.
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
INTOXICATED. 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 under 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 49.09(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 these
offenses.
SECTION 3. 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 4. 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 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 of a violation, and order a device be installed in
accordance with this article if it is discovered that a magistrate failed
to order installation of a device. Makes conforming and nonsubstantive
changes.
SECTION 5. 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 6. Amends Section 13(i), Article 42.12, Code of Criminal
Procedure, to authorizes 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 7. 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 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 8. 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 9. Amends Section 521.246, Transportation Code, to apply this
section to Sections 49.0449.06, Penal Code, rather than 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 10. (a) Effective date: September 1, 1999.
(b) Makes application of this Act prospective as to
sections 2, 5, 6, 7, and 9 of this bill.
SECTION 11.Emergency clause.
Effective date: upon passage.