HBA-AMW C.S.H.B. 5 77(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 5
By: Dunnam
Criminal Jurisprudence
3/12/2001
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Under current federal law, states are required to enact laws that meet
federal requirements for both repeat DWI offenders and open container laws.
If a state fails to enact or is not enforcing an open container law or a
law relating to repeat DWI offenders, federal law requires that a
percentage of federal highway funds apportioned to the state be diverted
for use in traffic safety programs.  Currently, the percentage of funds
required to be transferred is 1.5 percent.  Beginning October 1, 2002, the
percentage doubles and since Texas is currently not in compliance with
federal law, the state risks losing certain highway construction funds that
could be spent on projects to ease congestion and enhance mobility on
highways.  C.S.H.B. 5 establishes provisions which bring Texas into
compliance with federal open container laws and federal laws for repeat DWI
offenders. 

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. 

ANALYSIS

C.S.H.B. 5 amends the Penal and Transportation codes and the Code of
Criminal Procedure to establish provisions relating to the possession of an
open container and to modify provisions relating to repeat offenders for
driving while intoxicated or driving under the influence. 

The bill provides that a person commits a Class C misdemeanor if the person
possesses an open container in a passenger area of a motor vehicle that is
located on a public highway, regardless of whether the vehicle is being
operated or is stopped or parked.  The bill provides that it is an
exception to these provisions that if at the time of the offense the
defendant was a passenger in:  

 _the passenger area of a motor vehicle designed, maintained, or used
primarily for the transportation of persons for compensation, including a
bus, taxicab, or limousine; or 

 _the living quarters of a motorized house coach or motorized house
trailer, including a selfcontained camper, a motor home or a recreational
vehicle (Sec. 49.031, Penal Code). 

C.S.H.B. 5 sets forth that the purpose of the bill is to avoid the
imposition of sanctions against the state and the loss of federal highway
construction funds under federal provisions that require states to enact
and enforce a law that prohibits the possession of an open alcoholic
beverage container in the passenger area of a motor vehicle that is located
on a public highway or the right-of-way adjacent to a public highway and
require states to enact and enforce minimum penalties against repeat
intoxicated drivers (SECTION 1). The bill sets forth provisions regarding
the suspension of the enforcement of and the expiration of the provisions
regarding possession of an alcoholic beverage container in a motor vehicle
after the suspension or enjoinment of the federal sanctions against the
state regarding open container laws (Sec. 49.031, Penal Code).   

 If a person is convicted of a second or subsequent offense related to
driving while intoxicated committed within five years of the date on which
the most recent preceding offense was committed, the bill requires the
court to enter an order requiring a defendant to have a device installed,
on each motor vehicle owned or operated by the defendant, that uses a
deep-lung breath analysis mechanism to make impractical the operation of
the motor vehicle if ethyl alcohol is detected in the breath of the
operator.  The bill also requires the order entered by the court to require
the defendant not to operate any motor vehicle that is not equipped with
the deep-lung breath analysis device before the first anniversary of the
ending date of the period of driver's license suspension.  The bill sets
forth requirements regarding payment for the deep-lung breath analysis
device, installation of the device, and approval of the device by the
Department of Public Safety (DPS).  The bill also sets forth provisions for
failure to comply with the court order, enforcement of the court order, and
conflicts between these provisions and other statutes (Sec. 49.09, Penal
Code). 

The bill prohibits an occupational license order from taking effect before
the first anniversary of the effective date of the driver's license
suspension if the person's driver's license has been suspended as a result
of a second or subsequent conviction committed within five years of the
date on which the most recent preceding offense was committed (Sec.
521.251, Transportation Code).  The bill increases from 180 days to one
year the minimum time for a  driver's license suspension of a person with a
second or subsequent conviction for an offense relating to the operating of
a motor vehicle while intoxicated or intoxication manslaughter if the
offense was committed within five years of the date on which the most
recent preceding offense was committed.  The bill provides that if the
driver's license is suspended for a second or subsequent offense of
intoxication assault committed within five years of the date on which the
most recent preceding offense was committed, the suspension continues for a
period of one year.  The bill authorizes DPS to revoke the driver's license
of a repeat offender who as a result of probation or community supervision
is required to attend an educational program or to not operate a vehicle
without a deep-lung breath analysis device if the offense was committed
within five years of the date on which the most recent preceding offense
was committed (Sec. 521.344, Transportation Code) 

C.S.H.B. 5 requires the criminal court judge, in any case involving a
second or subsequent offense related to operating a motor vehicle while
intoxicated, intoxication assault, or intoxication manslaughter, committed
within five years of the date on which the most recent preceding offense
was committed, to direct certain persons or entities to conduct an
evaluation to determine the appropriateness of, and a course of conduct
necessary for, alcohol or drug rehabilitation and to report that evaluation
to the judge (SECTION 7, Art. 42.12, Code of Criminal Procedure). 

The bill prohibits a jury from recommending that a driver's license not be
suspended for any person convicted of a second or subsequent offense
relating to the operation of a motor vehicle while intoxicated if the
offense was committed within five years of the date on which the most
recent preceding offense was committed.  The bill increases from three days
to five days the minimum time of imprisonment for a person convicted of a
second offense relating to the operating of a motor vehicle while
intoxicated committed within five years of the date on which the preceding
offense was committed.  The bill also increases from 180 days to one year
the minimum amount of time for a driver's license or permit suspension of a
person convicted of specified intoxication-related offenses committed
within five years of the date on which the most recent preceding offense
was committed (SECTION 8, Art. 42.12, Code of Criminal Procedure). 

EFFECTIVE DATE

September 1, 2001.  If, before September 1, 2001, the attorney general
files with the secretary of state a certificate finding the suspension or
enjoinment of the sanctions against the state regarding open container
laws, the provisions relating to open beverage container requirements do
not take effect until the 30th day after the attorney general files a
subsequent certificate with the secretary of state certifying the finding
by the attorney general that the suspension or enjoinment of the sanctions
against the state no longer exists. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 5 modifies the original bill by removing language that provides
that a defendant's lack of  knowledge regarding an open container in the
passenger area of a motor vehicle and inability to access the open
container is not an exception to the offense of possession of an open
container.  The substitute modifies the definition of "passenger area of a
motor vehicle" to remove an area not normally occupied by the operator or
passengers (Sec. 49.031, Penal Code).  

The substitute adds new language to provide that the driver's license
suspension for a person whose license is suspended for a second or
subsequent offense of intoxication assault committed within five years of
the date on which the most recent preceding offense was committed continues
for a period of one year.  The substitute differs from the original bill by
providing that the minimum time for a driver's license suspension is 180
days, rather than one year, for a second or subsequent offense relating to
the operating of a motor vehicle while intoxicated or intoxication
manslaughter that is not committed within five years of the date on which
the most recent preceding offense was committed.  The substitute differs
from the original bill by authorizing DPS to revoke the driver's license of
a repeat offender who as a result of probation or community supervision is
required to attend an educational program or to not operate a vehicle
without a deep-lung breath analysis device only if the offense was
committed within five years of the date on which the most recent preceding
offense was committed (Sec. 521.344, Transportation Code).   

C.S.H.B. 5 differs from the original bill by providing that the minimum
period of confinement in county jail is three days, rather than five days,
for a conviction of a second offense relating to the operating of a motor
vehicle while intoxicated that is not committed within five years of the
date on which the most recent preceding offense was committed.  The
substitute differs from the original bill by providing that a jury is
prohibited from recommending that a driver's license not be suspended for
any person convicted of a second or subsequent offense relating to the
operating of a motor vehicle while intoxicated only if the offense is
committed within five years of the date on which the most recent preceding
offense was committed (SECTION 7, Art. 42.12, Code of Criminal Procedure).

The substitute differs from the original bill by providing that the minimum
period of time for a driver's license suspension for a person convicted of
a second or subsequent intoxication-related offense not committed within
five years of the date on which the most recent preceding offense was
committed is 180 days, rather than one year.  The substitute adds new
language to the original bill to provide that a driver's license suspension
is not less than one year or more than two years if the person is convicted
of a second or subsequent intoxication-related offense committed within
five years of the date on which the most recent preceding offense was
committed (SECTION 8, Art. 42.12, Code of Criminal Procedure).