By: Harris, Zaffirini S.B. No. 233

(In the Senate - Filed January 12, 2007; January 30, 2007, read first time and referred to Committee on Transportation and Homeland Security; April 3, 2007, reported adversely, with favorable Committee Substitute by the following vote: Yeas 8, Nays 0, 1 present not voting; April 3, 2007, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 233 By: Brimer

A BILL TO BE ENTITLED

AN ACT

relating to the authority of certain law enforcement agencies to establish a checkpoint to determine whether persons are boating 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. BOATING SOBRIETY CHECKPOINTS

Art. 65.01. DEFINITION. In this chapter, "law enforcement agency" means an entity of the state or a political subdivision of the state that employs a peace officer who patrols the public waters of this state.

Art. 65.02. APPLICABILITY. This chapter applies only to:

(1) a law enforcement agency of a municipality with a population of 75,000 or more that:

(A) is located in a county with a population of 400,000 or more; and

(B) is adjacent to a lake:

(i) that is at least 20,000 acres;

(ii) that has at least 150 miles of shoreline; and

(iii) in which the municipality shares jurisdiction with at least three other municipalities located in the same county as the municipality, each of which has a population of 25,000 or less;

(2) a law enforcement agency of a municipality described by Subdivision (1)(B)(iii);

(3) a county law enforcement agency that is operating within the jurisdiction of a municipality described by Subdivision (1) or (2); and

(4) a state law enforcement agency that is operating within the jurisdiction of a municipality described by Subdivision (1) or (2).

Art. 65.03. AUTHORIZATION FOR BOATING SOBRIETY CHECKPOINTS. A law enforcement agency may operate a temporary checkpoint as provided by this chapter to determine whether persons operating watercraft are intoxicated and in violation of Section 49.06, Penal Code.

Art. 65.04. APPROVAL OF AND PROCEDURES FOR BOATING 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 boating sobriety checkpoint by peace officers of the agency and the procedures to be used in the operation of the checkpoint before the checkpoint begins operation.

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

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

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

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

(d) The law enforcement agency, in establishing the location, time, and design of a boating sobriety checkpoint, shall consider the safety of the public subject to the checkpoint and the peace officers operating the checkpoint. The law enforcement agency shall make reasonable efforts to advise operators of oncoming watercraft of the checkpoint and the purpose of the checkpoint, to demarcate the checkpoint, and to illuminate the checkpoint as necessary.

(e) The peace officer who makes the initial communication with the operator of a watercraft at the boating sobriety 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 watercraft 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 49.06, Penal Code.

(g) A peace officer may not direct the operator of or a passenger in a watercraft to leave the watercraft 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 boating sobriety checkpoint may require that each watercraft subject to the checkpoint be diverted to a specific location to ensure safety.

(h) A peace officer at the boating sobriety checkpoint may not require a watercraft 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 49.06, 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 watercraft 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 boating sobriety 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 boating sobriety 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 boating sobriety 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. This subsection does not apply in an emergency.

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

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

(2) the number of watercraft 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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