79R7672 PEP-F
By: Smith of Tarrant H.B. No. 3241
A BILL TO BE ENTITLED
AN ACT
relating to the civil and criminal consequences of engaging in
certain intoxication offenses or refusing to submit to the taking
of a specimen to test for intoxication.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 5(d), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(d) In all other cases the judge may grant deferred
adjudication unless:
(1) the defendant is charged with an offense:
(A) under Section [49.04, 49.05, 49.06,]
49.07[,] or 49.08, Penal Code, or for which punishment may be
increased under Section 49.09, Penal Code; or
(B) for which punishment may be increased under
Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it
is shown that the defendant has been previously convicted of an
offense for which punishment was increased under any one of those
subsections; or
(2) the defendant:
(A) is charged with an offense under Section
21.11, 22.011, or 22.021, Penal Code, regardless of the age of the
victim, or a felony described by Section 13B(b) of this article;
and
(B) has previously been placed on community
supervision for any offense under Paragraph (A) of this
subdivision.
SECTION 2. Section 411.081(e), Government Code, is amended
to read as follows:
(e) A person is entitled to petition the court under
Subsection (d) only if during the applicable period described by
Subsection (d)(1), (2), or (3), as appropriate, the person is not
convicted of or placed on deferred adjudication community
supervision under Section 5, Article 42.12, Code of Criminal
Procedure, for any offense other than an offense under the
Transportation Code punishable by fine only. A person is not
entitled to petition the court under Subsection (d) if the person
has been previously convicted or placed on deferred adjudication
for:
(1) an offense requiring registration as a sex
offender under Chapter 62, Code of Criminal Procedure;
(2) an offense under Section 20.04, Penal Code,
regardless of whether the offense is a reportable conviction or
adjudication for purposes of Chapter 62, Code of Criminal
Procedure;
(3) an offense under Section 19.02, 19.03, 22.04,
22.041, 25.07, or 42.072, Penal Code; [or]
(4) any other offense involving family violence, as
defined by Section 71.004, Family Code; or
(5) an offense under Chapter 49, Penal Code, other
than an offense that is a Class C misdemeanor.
SECTION 3. Chapter 49, Penal Code, is amended by adding
Section 49.03 to read as follows:
Sec. 49.03. REFUSAL TO SUBMIT TO TAKING OF SPECIMEN. (a) A
person commits an offense if the person:
(1) is arrested for an offense relating to the
operating of a motor vehicle while intoxicated, an offense of
operating an aircraft while intoxicated, or an offense of operating
a watercraft while intoxicated; and
(2) refuses to submit to the taking of a specimen of
the person's blood or breath at the request of and as designated by
a peace officer.
(b) For purposes of this section, "offense relating to the
operating of a motor vehicle while intoxicated," "offense of
operating an aircraft while intoxicated," and "offense of operating
a watercraft while intoxicated" have the meanings assigned by
Section 49.09(c), Penal Code, and include an offense under Section
106.041, Alcoholic Beverage Code.
(c) An offense under this section is a Class B misdemeanor,
with a minimum term of confinement of 120 hours of continuous
confinement.
(d) An offense under this section is not a lesser included
offense under:
(1) Section 49.04, 49.045, 49.05, 49.06, 49.065,
49.07, or 49.08; or
(2) Section 106.041, Alcoholic Beverage Code.
(e) Evidence of an offense under this section may be
admitted in the prosecution of an offense arising out of the same
criminal episode.
SECTION 4. Sections 49.09(a), (b), (d), and (g), Penal
Code, are amended to read as follows:
(a) Except as provided by Subsection (b), an offense under
Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor,
with a minimum term of confinement of 30 days, if it is shown on the
trial of the offense that the person has been one time previously
[been] convicted of or placed on deferred adjudication for [one
time of] an offense relating to the operating of a motor vehicle
while intoxicated, an offense of operating an aircraft while
intoxicated, an offense of operating a watercraft while
intoxicated, or an offense of operating or assembling an amusement
ride while intoxicated.
(b) An offense under Section 49.04, 49.045, 49.05, 49.06, or
49.065 is a felony of the third degree if it is shown on the trial of
the offense that the person has been [previously been convicted]:
(1) one time previously convicted of or placed on
deferred adjudication for an offense under Section 49.08 or an
offense under the laws of another state if the offense contains
elements that are substantially similar to the elements of an
offense under Section 49.08; or
(2) two times previously convicted of or placed on
deferred adjudication for any other offense relating to the
operating of a motor vehicle while intoxicated, operating an
aircraft while intoxicated, operating a watercraft while
intoxicated, or operating or assembling an amusement ride while
intoxicated.
(d) For the purposes of this section, a conviction for an
offense listed in Subsection (c) [under Section 49.04, 49.05,
49.06, 49.065, 49.07, or 49.08] that occurs on or after September 1,
1994, is a final conviction, whether the sentence for the
conviction is imposed or probated.
(g) A conviction or deferred adjudication may be used for
purposes of enhancement under this section or enhancement under
Subchapter D, Chapter 12, but not under both this section and
Subchapter D.
SECTION 5. Section 524.036, Transportation Code, is amended
to read as follows:
Sec. 524.036. APPEARANCE OF WITNESSES; FAILURE TO APPEAR.
(a) A person, including a peace officer or expert witness, may not
be compelled to appear at a hearing under this subchapter.
(b) A person who requests a hearing and fails to appear
without just cause waives the right to a hearing and the
department's determination is final.
SECTION 6. Section 708.102(c), Transportation Code, is
amended to read as follows:
(c) The amount of a surcharge under this section is $1,000
per year, except that the amount of the surcharge is:
(1) $1,500 per year for a second or subsequent
conviction within a 36-month period; and
(2) $2,000 for a first or subsequent conviction if it
is shown on the trial of the offense that, following the person's
arrest for the offense and during the same criminal episode, the
person also refused to submit to the taking [an analysis] of a
specimen of the person's blood, breath, or urine at the request of
and as designated by a peace officer [showed an alcohol
concentration level of 0.16 or more at the time the analysis was
performed].
SECTION 7. Section 724.012(b), Transportation Code, is
amended to read as follows:
(b) A peace officer shall require the taking of a specimen
of the person's breath or blood if:
(1) the officer arrests the person for an offense
under Chapter 49, Penal Code, involving the operation of a motor
vehicle or a watercraft;
(2) either:
(A) the person was the operator of a motor
vehicle or a watercraft involved in an accident that the officer
reasonably believes occurred as a result of the offense and, [;
[(3)] at the time of the arrest, the officer
reasonably believes that as a direct result of the accident:
(i) [(A)] any individual has died or will
die; or
(ii) [(B)] an individual other than the
person has suffered serious bodily injury; or
(B) at the time of the arrest, the officer
possesses or receives reliable information from a credible source
that the person has been previously convicted two or more times of
an offense under Chapter 49, Penal Code, involving the operation of
a motor vehicle or a watercraft; and
(3) [(4)] the person refuses the officer's request to
submit to the taking of a specimen voluntarily.
SECTION 8. Section 724.015, Transportation Code, is amended
to read as follows:
Sec. 724.015. INFORMATION PROVIDED BY OFFICER BEFORE
REQUESTING SPECIMEN. Before requesting a person to submit to the
taking of a specimen, the officer shall inform the person orally and
in writing that:
(1) if the person refuses to submit to the taking of
the specimen, that refusal:
(A) is an offense under Section 49.03, Penal
Code;
(B) may be admissible in a subsequent
prosecution;
(C) may result in a suspension of [(2) if the
person refuses to submit to the taking of the specimen,] the
person's license to operate a motor vehicle or in a denial to issue
the person a license, regardless of [will be automatically
suspended,] whether [or not] the person is subsequently prosecuted
for the underlying offense [as a result of the arrest, for not less
than 180 days]; and
(D) may result in additional administrative
sanctions, including the assessment of a $2,000 per year surcharge
on the person's license during the 36-month period following any
conviction that results from prosecution of the underlying offense
[(3) if the person is 21 years of age or older and submits to the
taking of a specimen designated by the officer and an analysis of
the specimen shows the person had an alcohol concentration of a
level specified by Chapter 49, Penal Code, the person's license to
operate a motor vehicle will be automatically suspended for not
less than 90 days, whether or not the person is subsequently
prosecuted as a result of the arrest;
[(4) if the person is younger than 21 years of age and
has any detectable amount of alcohol in the person's system, the
person's license to operate a motor vehicle will be automatically
suspended for not less than 60 days even if the person submits to
the taking of the specimen, but that if the person submits to the
taking of the specimen and an analysis of the specimen shows that
the person had an alcohol concentration less than the level
specified by Chapter 49, Penal Code, the person may be subject to
criminal penalties less severe than those provided under that
chapter;
[(5) if the officer determines that the person is a
resident without a license to operate a motor vehicle in this state,
the department will deny to the person the issuance of a license,
whether or not the person is subsequently prosecuted as a result of
the arrest, under the same conditions and for the same periods that
would have applied to a revocation of the person's driver's license
if the person had held a driver's license issued by this state];
and
(2) [(6)] the person has a right to a hearing on any
[the] suspension of the person's license to operate a motor vehicle
or denial to issue the person a license if, not later than the 15th
day after the date on which the person receives [the] notice of
suspension or denial or [on which the person] is considered to have
received [the] notice [by mail] as provided by law, the department
receives, at its headquarters in Austin, a written [demand,
including a facsimile transmission, or a] request [in another form
prescribed by the department] for the hearing.
SECTION 9. Section 724.032(b), Transportation Code, is
amended to read as follows:
(b) The director must approve the form of the refusal
report. The report must:
(1) show the grounds for the officer's belief that the
person had been operating a motor vehicle or watercraft powered
with an engine having a manufacturer's rating of 50 horsepower or
above while intoxicated; and
(2) contain a copy of[:
[(A) the refusal statement requested under
Section 724.031; or
[(B)] a statement signed by the officer that the
person refused to[:
[(i)] submit to the taking of the requested
specimen[; and
[(ii) sign the requested statement under
Section 724.031].
SECTION 10. Section 724.064, Transportation Code, is
amended to read as follows:
Sec. 724.064. ADMISSIBILITY IN CRIMINAL PROCEEDING OF
SPECIMEN ANALYSIS. (a) Notwithstanding Rule 403, Texas Rules of
Evidence, on [On] the trial of a criminal proceeding arising out of
an offense under Chapter 49, Penal Code, [involving the operation
of a motor vehicle or a watercraft,] or an offense under Section
106.041, Alcoholic Beverage Code, evidence of the alcohol
concentration or presence of a controlled substance, drug,
dangerous drug, or other substance as shown by analysis of a
specimen of the person's blood, breath, or urine or any other bodily
substance taken at the request or order of a peace officer is
admissible.
(b) Evidence of alcohol concentration that is admissible
under Subsection (a) and is obtained not later than three hours
after the incident giving rise to the criminal proceeding creates a
presumption that the person's alcohol concentration at the time of
the incident was the same as or greater than the level shown by that
evidence.
(c) This section does not prevent the use of other evidence
of a person's alcohol concentration at the time of an incident
giving rise to a criminal proceeding.
SECTION 11. The following are repealed:
(1) Sections 49.09(e) and (f), Penal Code; and
(2) Sections 524.038(d), 524.039, and 724.031,
Transportation Code.
SECTION 12. The changes in law made by this Act apply only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
governed by the law in effect when the offense was committed, and
the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense was
committed before that date.
SECTION 13. This Act takes effect September 1, 2005.