By: Zaffirini, Carona, Harris S.B. No. 59

(In the Senate - Filed November 13, 2006; January 23, 2007, read first time and referred to Committee on Transportation and Homeland Security; April 11, 2007, reported adversely, with favorable Committee Substitute by the following vote: Yeas 8, Nays 0; April 11, 2007, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 59 By: Watson

A BILL TO BE ENTITLED

AN ACT

relating to the authority of certain law enforcement agencies to establish a checkpoint on a highway or street to determine whether persons are driving while intoxicated.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 1, Code of Criminal Procedure, is amended by adding Chapter 65 to read as follows:

CHAPTER 65. SOBRIETY CHECKPOINTS

Art. 65.01. DEFINITIONS. In this chapter:

(1) "Highway or street" has the meaning assigned by Section 541.302, Transportation Code.

(2) "Law enforcement agency" means:

(A) the Department of Public Safety of the State of Texas;

(B) the sheriff's department of a county; or

(C) the regular police department of a municipality.

Art. 65.02. AUTHORIZATION FOR SOBRIETY CHECKPOINTS. (a) A law enforcement agency may operate a temporary checkpoint as provided by this chapter on a highway or street to determine whether persons operating motor vehicles on the highway or street are intoxicated and in violation of Section 49.04 or 49.045, Penal Code.

(b) Law enforcement agencies as defined under this chapter shall coordinate their efforts for the implementation of this chapter.

Art. 65.03. APPROVAL OF AND PROCEDURES FOR SOBRIETY CHECKPOINTS. (a) A peace officer of at least the rank of lieutenant or its equivalent in the law enforcement agency must approve the operation of a checkpoint by peace officers of the agency and the procedures to be used in the operation of the checkpoint before the checkpoint begins operation. The selection of the location of a checkpoint must be made without regard to the ethnic or socioeconomic characteristics of the area in which the checkpoint is located.

(b) The law enforcement agency must record in writing the procedures:

(1) used in selecting the site for the checkpoint; and

(2) to be used in the operation of the checkpoint.

(c) The procedures for the operation of a checkpoint must ensure that the selection of motor vehicles to be stopped is reasonably predictable and nonarbitrary.

(d) The law enforcement agency, in establishing the location, time, and design of a checkpoint, shall consider the safety of the public entering the checkpoint and the peace officers operating the checkpoint. The law enforcement agency shall make reasonable efforts to place signs or other devices to advise operators of oncoming motor vehicles of the checkpoint and the purpose of the checkpoint, to demarcate the checkpoint with flares, flags, or traffic cones, and to otherwise illuminate the checkpoint as necessary.

(e) The peace officer who makes the initial traffic directive or other communication with the operator of a motor vehicle at the checkpoint must be wearing a uniform of the law enforcement agency that is distinguishable from civilian dress.

(f) The law enforcement agency shall establish procedures governing the encounters between motor vehicle operators and the peace officers to ensure that:

(1) intrusion on the operator is minimized; and

(2) an inquiry is reasonably related to determining whether the operator is intoxicated and in violation of Section 49.04 or 49.045, Penal Code.

(g) A peace officer may not direct the operator of or a passenger in a motor vehicle to leave the vehicle or move the vehicle from the highway or street or routine checkpoint diversion route unless the officer has reasonable suspicion or probable cause to believe that the person has committed or is committing an offense. The design of a checkpoint may require that each motor vehicle passing through the checkpoint be diverted to a location adjacent to the highway or street to ensure safety.

(h) A peace officer at the checkpoint may not require a motor vehicle operator to perform a field sobriety test unless the officer has reasonable suspicion or probable cause to believe that the operator is in violation of Section 49.04 or 49.045, Penal Code. A peace officer who requires or requests an operator to provide a specimen of breath, blood, or urine must comply with Chapter 724, Transportation Code.

(i) Unless a peace officer has reasonable suspicion or probable cause to detain a motor vehicle operator or passenger for a criminal offense, the time during which an officer makes an inquiry of an operator or passenger should not exceed three minutes, and the total time during which the operator must wait to pass through the checkpoint should not exceed 10 minutes. The law enforcement agency shall make reasonable efforts to reduce these periods to not more than one and five minutes, respectively.

(j) The law enforcement agency shall publicize the operation of a checkpoint but is not required to disclose the precise date, time, location, or purpose of the checkpoint.

(k) A law enforcement agency may not operate a checkpoint at one location for more than four hours and may not operate a checkpoint at the same location more than twice in a seven-day period. For the purposes of this subsection, checkpoints located within one-half mile of each other are considered to be at the same location. This subsection does not apply in an emergency.

(l) A law enforcement agency shall keep a record of each operation of a checkpoint that contains:

(1) the date, time, location, and duration of the checkpoint;

(2) the number of motor vehicles stopped at the checkpoint and the number and nature of any arrests made or citations issued at the checkpoint; and

(3) the identities of the peace officers operating the checkpoint.

SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2007.

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