| TO: | Honorable Joe Driver, Chair, House Committee on Law Enforcement |
| FROM: | John S. O'Brien, Deputy Director, Legislative Budget Board |
| IN RE: | HB3241 by Smith, Todd (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.), As Introduced |
| Fiscal Year | Probable Net Positive/(Negative) Impact to General Revenue Related Funds |
|---|---|
| 2006 | $1,028,956 |
| 2007 | $2,006,465 |
| 2008 | $5,812,074 |
| 2009 | $5,812,074 |
| 2010 | $5,812,074 |
| Fiscal Year | Probable Revenue Gain/(Loss) from GENERAL REVENUE FUND 1 |
Probable Revenue Gain/(Loss) from TRAUMA FACILITY AND EMS 5111 |
|---|---|---|
| 2006 | $1,028,956 | $1,008,581 |
| 2007 | $2,006,465 | $1,966,733 |
| 2008 | $5,812,074 | $0 |
| 2009 | $5,812,074 | $0 |
| 2010 | $5,812,074 | $0 |
The bill would amend the Code of Criminal Procedure, Government Code, Penal Code, and Transportation Code as it relates 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.
Under the provisions of the bill, a person would not be able to petition the court for an order of nondisclosure for an offense under Chapter 49, Penal Code, other than an offense that is a Class C misdemeanor.
The bill would make it a Class B misdemeanor, with a minimum term of 120 hours of continuous confinement, for a person arrested for an offense relating to the operation of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, or an offense of operating a watercraft while intoxicated, to refuse 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. The bill specifies that the offense is not a lesser-included offense under any of the intoxication or alcohol related statutes.
A surcharge of $2,000 per year would be assessed on the driver license of a person for an intoxication conviction involving a refusal to provide a blood or breath specimen. A mandatory blood or breath specimen is required for any person arrested for an offense under Penal Code, Chapter 49 (intoxication-related offenses), or, if 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.
Before requesting a person to submit to the taking of a specimen, the officer would be required to inform the person orally and in writing that if the person refuses to submit to the taking of the specimen, that refusal is an offense under Section 49.03, Penal Code; may be admissible in a subsequent prosecution; and may result in a suspension of the person's license to operate a motor vehicle or in a denial to issue the person a license, regardless of whether the person is subsequently prosecuted for the underlying offense and 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. The officer would also be required to inform the person orally and in writing that the person has a right to a hearing on any 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 notice of suspension or denial or is considered to have received notice as provided by law, the Department of Public Safety receives a written request for the hearing.
Evidence of alcohol concentration would be admissible in a criminal proceeding arising out of an offense under Chapter 49, Penal Code. The bill would also create a presumption, if the blood or breath specimen was taken within three hours of the incident giving rise to the criminal proceeding, 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.
The bill would take effect September 1, 2005.
Under the provisions of the bill, persons convicted of an intoxication offense after refusing to submit a blood or breath specimen after being arrested for operating a motor vehicle, aircraft, or boat while intoxicated would be required to pay a $2,000 surcharge. DPS does not currently collect data specific to the surcharge collection rate for those convicted of intoxication offenses, but reports payment compliance decreases as the surcharge increases. DPS reports the current collection rate for the Driver Responsibility Program (DRP) is 31 percent. This fiscal analysis assumes that the collection rate for offenders refusing to submit specimens would be half the overall rate, or 15.5 percent, since this would be the highest surcharge category.
Of the 125,000 Administrative License Revocations in fiscal year 2004, DPS estimates 45 percent included a refusal to submit a blood or breath specimen upon request. DPS reports 61,927 intoxication convictions in fiscal year 2004. DPS does not currently collect data on the number of convictions that involve persons who refused to submit either a blood or breath specimen. Intoxication convictions reported by DPS were adjusted for the number of persons entering the Texas Department of Criminal Justice whose primary offense was driving while intoxicated (DWI) in fiscal year 2004 since it is anticipated these persons would not pay the surcharges. This fiscal analysis assumes that the frequency of intoxication convictions involving a refusal to provide a specimen would be 22.5 percent, or half the rate of refusals among Administrative License Revocations. The number of new persons making the surcharge payments are assumed to decrease by 5 percent in subsequent fiscal years as a result of fewer refusals to provide a specimen, lower rates of payment for subsequent surcharges and repeat offenders, and multiple convictions requiring felony punishment. The number of persons making the payments is assumed to stabilize after three years.
The estimated amount of revenue collected as a result of the provisions of the bill would be $2,037,537 in fiscal year 2006, $3,973,198 in fiscal year 2007, $5,812,074 in fiscal year 2008, $5,812,074 in fiscal year 2009, and $5,812,074 in fiscal year 2010.
Under current law, revenue collected under the DRP through fiscal year 2007 must be distributed to the Trauma Center Fund (49.5 percent) and the General Revenue Fund (51.5 percent). Effective fiscal year 2008, all money collected under the DRP will be deposited into the General Revenue Fund.
| Source Agencies: | 405 Department of Public Safety
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| LBB Staff: | JOB, VDS, LM, KJG, SJ
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