HBA-KDB H.B. 705 77(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 705
By: Morrison
Juvenile Justice & Family Issues
2/25/2001
Introduced



BACKGROUND AND PURPOSE 

A peace officer who charges a minor with driving under the influence is
authorized to issue a Driving Under the Influence (DUI) citation using the
officer's discretion as to whether there is a detectable amount of alcohol
in the minor's system. The standard used to judge a detectable amount  is
an alcohol odor, but there is no requirement to prove that the odor is from
the minor's breath.  Under current law, the officer issuing a DUI  to a
minor suspected of driving while intoxicated is not required to take the
minor into custody or to provide an intoxylizer or blood test of alcohol
level at the request of minor.  This test may potentially prove the minor's
innocence by showing exactly the blood alcohol level of the minor.  House
Bill 705 requires the peace officer to provide an intoxylizer or blood test
at the request of the minor. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Department of Public Safety in
SECTION 1 (Section 106.041, Alcoholic Beverage Code) of this bill. 

ANALYSIS

House Bill 705 amends the Alcoholic Beverage Code to entitle a minor who is
charged with  driving under the influence of alcohol, but who was not
requested by the arresting officer to submit to the taking of a specimen of
the minor's breath or blood, to request within a reasonable time not to
exceed two hours after the arrest that a physician, qualified technician,
chemist, or registered professional nurse of the minor's own choice draw a
specimen and have an analysis made of the minor's blood.  The bill also
entitles the minor, within the same time limit and on payment of the
required fee, to provide a breath specimen and have an analysis made of the
minor's breath in an adult processing office of a law enforcement agency,
including the agency that employs the arresting officer.  The bill
provides that the minor's request to the arresting officer must be
videotaped, and that the videotape be maintained until the disposition of
the case relating to the arrest of the minor is final.  The bill requires
the tape to be made available to the minor or an attorney for the minor
during that period.  The bill provides that a breath specimen taken at the
request of the minor be taken and analyzed under rules of the Department of
Public Safety (DPS) by a person who is certified by DPS.  The bill provides
that the analysis is admissible on the trial of the offense to prove the
extent, if any, to which the minor had a detectable amount of alcohol in
the minor's system at the time of the arrest. The bill provides that the
refusal or inability of the arresting officer to comply with a minor's
request is admissible at the trial of the offense.  The bill requires DPS
by rule to prescribe the amount of the required fee for an analysis of a
minor's breath and specifies restrictions for the fee amount.   The bill
provides that the provisions set forth in the bill prevail if there is a
conflict with the Family Code. 

EFFECTIVE DATE

On passage, or if the Act does not receive the necessary vote, the Act
takes effect September 1, 2001.