80R5560 CAE-F

By: Patrick, Dan S.B. No. 1328

A BILL TO BE ENTITLED

AN ACT

relating to the civil and criminal consequences of driving while intoxicated.

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

SECTION 1. Sections 521.245(a) and (e), Transportation Code, are amended to read as follows:

(a) If the petitioner's license has been suspended under Chapter [524 or] 724, the court shall require the petitioner to attend a program approved by the court that is designed to provide counseling and rehabilitation services to persons for alcohol dependence. This requirement shall be stated in the order granting the occupational license.

(e) On receipt of the copy under Subsection (d), the department shall suspend the person's occupational license for[:

[(1) 60 days, if the original driver's license suspension was under Chapter 524; or

[(2)] 120 days[, if the original driver's license suspension was under Chapter 724].

SECTION 2. Sections 521.251(a) and (e), Transportation Code, are amended to read as follows:

(a) If a person's license is suspended under Chapter [524 or] 724 and the person has not had a prior suspension arising from an alcohol-related or drug-related enforcement contact in the five years preceding the date of the person's arrest, an order under this subchapter granting the person an occupational license takes effect immediately. However, the court shall order the person to comply with the counseling and rehabilitation program required under Section 521.245.

(e) For the purposes of this section, "alcohol-related or drug-related enforcement contact" means a driver's license suspension, disqualification, or prohibition order under the laws of this state or another state resulting from:

(1) a conviction of an offense prohibiting the operation of a motor vehicle while:

(A) intoxicated;

(B) under the influence of alcohol; or

(C) under the influence of a controlled substance or dangerous drug;

(2) a refusal to submit to the taking of a breath or blood specimen following an arrest for an offense prohibiting the operation of a motor vehicle while:

(A) intoxicated;

(B) under the influence of alcohol; or

(C) under the influence of a controlled substance or dangerous drug; or

(3) an analysis of a blood, breath, or urine specimen showing an alcohol concentration of a level specified by Section 49.01, Penal Code, following an arrest for an offense prohibiting the operation of a motor vehicle while intoxicated [has the meaning assigned by Section 524.001].

SECTION 3. Sections 522.081(b) and (c), Transportation Code, are amended to read as follows:

(b) This subsection applies to a violation committed while operating any motor vehicle, including a commercial motor vehicle, except as provided by this subsection. A person who holds a commercial driver's license is disqualified from driving a commercial motor vehicle for one year:

(1) if convicted of three violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period;

(2) on first conviction of:

(A) driving a motor vehicle under the influence of alcohol or a controlled substance, including a violation of Section 49.04, 49.045, or 49.07, Penal Code;

(B) leaving the scene of an accident involving a motor vehicle driven by the person;

(C) using a motor vehicle in the commission of a felony, other than a felony described by Subsection (d)(2);

(D) causing the death of another person through the negligent or criminal operation of a motor vehicle; or

(E) driving a commercial motor vehicle while the person's commercial driver's license is revoked, suspended, or canceled, or while the person is disqualified from driving a commercial motor vehicle, for an action or conduct that occurred while operating a commercial motor vehicle;

(3) for refusing to submit to a test under Chapter 724 to determine the person's alcohol concentration or the presence in the person's body of a controlled substance or drug while operating a motor vehicle in a public place; or

(4) if an analysis of the person's blood, breath, or urine under Chapter 522[, 524,] or 724 determines that the person:

(A) had an alcohol concentration of 0.04 or more, or that a controlled substance or drug was present in the person's body, while operating a commercial motor vehicle in a public place; or

(B) had an alcohol concentration of 0.08 or more while operating a motor vehicle, other than a commercial motor vehicle, in a public place.

(c) A person who holds a commercial driver's license is disqualified from operating a commercial motor vehicle for three years if:

(1) the person:

(A) is convicted of an offense listed in Subsection (b)(2) and the vehicle being operated by the person was transporting a hazardous material required to be placarded; or

(B) refuses to submit to a test under Chapter 724 to determine the person's alcohol concentration or the presence in the person's body of a controlled substance or drug while operating a motor vehicle in a public place and the vehicle being operated by the person was transporting a hazardous material required to be placarded; or

(2) an analysis of the person's blood, breath, or urine under Chapter 522[, 524,] or 724 determines that while transporting a hazardous material required to be placarded the person:

(A) while operating a commercial motor vehicle in a public place had an alcohol concentration of 0.04 or more, or a controlled substance or drug present in the person's body; or

(B) while operating a motor vehicle, other than a commercial motor vehicle, in a public place had an alcohol concentration of 0.08 or more.

SECTION 4. Section 522.092, Transportation Code, is amended to read as follows:

Sec. 522.092. SUSPENSION, REVOCATION, CANCELLATION, OR DENIAL OF DRIVER'S LICENSE UNDER OTHER LAWS. A person subject to disqualification under this chapter may also have the person's driver's license suspended, revoked, canceled, or denied under one or more of the following, if the conduct that is a ground for disqualification is also a ground for the suspension, revocation, cancellation, or denial of a driver's license suspension under:

(1) Chapter 521;

(2) [Chapter 524;

[(3)] Chapter 601; or

(3) [(4)] Chapter 724.

SECTION 5. Sections 522.105(b) and (d), Transportation Code, are amended to read as follows:

(b) Except as provided by Subsection (c), the procedure for notice and disqualification under this section is that specified by Subchapters C and D, Chapter 724[, or Chapter 524].

(d) An appeal of a disqualification under this section is subject to Sections 724.047, 724.0471, and 724.0472 [524.041-524.044].

SECTION 6. The heading to Chapter 724, Transportation Code, is amended to read as follows:

CHAPTER 724. ADMINISTRATIVE SUSPENSION OF LICENSE TO OPERATE A

VEHICLE ON REFUSAL TO PROVIDE SPECIMEN [IMPLIED CONSENT]

SECTION 7. 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 may be admissible in a subsequent prosecution;

(2) if the person refuses to submit to the taking of the specimen, the person's license to operate a motor vehicle will be automatically suspended, whether or not the person is subsequently prosecuted as a result of the arrest, for not less than 365 [180] days;

(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

(4) [(6)] if the person refuses to submit to the taking of the specimen, the person has a right to a hearing on the suspension or denial 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 8. Sections 724.035(a) and (b), Transportation Code, are amended to read as follows:

(a) If a person refuses the request of a peace officer to submit to the taking of a specimen, the department shall:

(1) suspend the person's license to operate a motor vehicle on a public highway for 365 [180] days; or

(2) if the person is a resident without a license, issue an order denying the issuance of a license to the person for 365 [180] days.

(b) The period of suspension or denial is two years if the person's driving record shows one or more alcohol-related or drug-related enforcement contacts, as defined by Section 521.251 [524.001(3)], during the 10 years preceding the date of the person's arrest.

SECTION 9. Subchapter D, Chapter 724, Transportation Code, is amended by adding Sections 724.0411 and 724.0412 to read as follows:

Sec. 724.0411. NOTICE REQUIREMENTS. (a) Notice required to be provided by the department under this subchapter may be given by telephone or other electronic means. If notice is given by telephone or other electronic means, written notice must also be provided.

(b) Notice by mail is considered received on the fifth day after the date the notice is deposited with the United States Postal Service.

Sec. 724.0412. RESCHEDULING AND CONTINUANCE. (a) A hearing required under Section 724.041 shall be rescheduled if, before the fifth day before the date scheduled for the hearing, the department receives a request for a continuance from the person who requested the hearing. Unless both parties agree otherwise, the hearing shall be rescheduled for a date not earlier than the fifth day after the date the department receives the request for the continuance.

(b) A person who requests a hearing under this subchapter may obtain only one continuance unless the person shows that a medical condition prevents the person from attending the rescheduled hearing, in which event one additional continuance may be granted for a period not to exceed 10 days.

SECTION 10. Section 724.042, Transportation Code, is amended to read as follows:

Sec. 724.042. ISSUES AT HEARING. The issues at a hearing under this subchapter are whether:

(1) [reasonable suspicion or probable cause existed to stop or arrest the person;

[(2)probable cause existed to believe that] the person was:

(A) operating a motor vehicle in a public place [while intoxicated]; or

(B) operating a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above [while intoxicated];

(2) [(3)] the person was placed under arrest [by the officer] and was requested by a peace officer to submit to the taking of a specimen; and

(3) [(4)] the person refused to submit to the taking of a specimen on request of the officer.

SECTION 11. Subchapter D, Chapter 724, Transportation Code, is amended by adding Section 724.0431 to read as follows:

Sec. 724.0431. DECISION OF ADMINISTRATIVE LAW JUDGE. The decision of the administrative law judge is final when issued and signed.

SECTION 12. Section 724.047, Transportation Code, is amended to read as follows:

Sec. 724.047. APPEAL. (a) A person whose license suspension is sustained may appeal the decision by filing a petition not later than the 30th day after the date the administrative law judge's decision is final. The administrative law judge's final decision is immediately appealable without the requirement of a motion for rehearing.

(b) A petition under Subsection (a) must be filed in a county court at law in the county in which the person was arrested or, if there is not a county court at law in the county, in the county court. If the county judge is not a licensed attorney, the county judge shall transfer the case to a district court for the county on the motion of either party or of the judge.

(c) A person who files an appeal under this section shall send a copy of the petition by certified mail to the department and to the State Office of Administrative Hearings at each agency's headquarters in Austin. The copy must be certified by the clerk of the court in which the petition is filed.

(d) The department's right to appeal is limited to issues of law.

(e) A district or county attorney may represent the department in an appeal. [Chapter 524 governs an appeal from an action of the department, following an administrative hearing under this chapter, in suspending or denying the issuance of a license.]

SECTION 13. Subchapter D, Chapter 724, Transportation Code, is amended by adding Sections 724.0471 and 724.0472 to read as follows:

Sec. 724.0471. REVIEW; ADDITIONAL EVIDENCE. (a) Review on appeal is on the record certified by the State Office of Administrative Hearings with no additional testimony.

(b) On appeal, a party may apply to the court to present additional evidence. If the court is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the administrative law judge, the court may order that the additional evidence be taken before an administrative law judge on conditions determined by the court.

(c) There is no right to a jury trial in an appeal under this section.

(d) A remand under this section does not stay the suspension of a license.

Sec. 724.0472. TRANSCRIPT OF ADMINISTRATIVE HEARING. (a) To obtain a transcript of an administrative hearing, the party who appeals the administrative law judge's decision must apply to the State Office of Administrative Hearings.

(b) On payment of a fee not to exceed the actual cost of preparing the transcript, the State Office of Administrative Hearings shall promptly furnish both parties with a transcript of the administrative hearing.

SECTION 14. Section 49.04, Penal Code, is amended by amending Subsection (b) and adding Subsection (d) to read as follows:

(b) Except as provided by Subsections [Subsection] (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

(d) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an alcohol concentration of 0.16 or more, the offense is a Class A misdemeanor.

SECTION 15. Article 55.06, Code of Criminal Procedure, is amended to read as follows:

Art. 55.06. LICENSE SUSPENSIONS AND REVOCATIONS. Records relating to the suspension or revocation of a driver's license, permit, or privilege to operate a motor vehicle may not be expunged under this chapter except as provided in Section 724.048 [524.015], Transportation Code[, or Section 724.048 of that code].

SECTION 16. Section 54.042(h), Family Code, is amended to read as follows:

(h) If a child is adjudicated for conduct that violates Section 49.04, 49.07, or 49.08, Penal Code, and if any conduct on which that adjudication is based is a ground for a driver's license suspension under Chapter [524 or] 724, Transportation Code, each of the suspensions shall be imposed. The court imposing a driver's license suspension under this section shall credit a period of suspension imposed under Chapter [524 or] 724, Transportation Code, toward the period of suspension required under this section, except that if the child was previously adjudicated for conduct that violates Section 49.04, 49.07, or 49.08, Penal Code, credit may not be given.

SECTION 17. Section 75.014(e), Government Code, is amended to read as follows:

(e) The County Courts at Law No. 6 and No. 7 of El Paso County, Texas, are designated as criminal misdemeanor courts. Courts designated as criminal misdemeanor courts shall give preference to and have primary responsibility for:

(1) criminal misdemeanor cases;

(2) appeals or petitions under Section 501.052, 521.242, or 521.302, [or 524.041,] Transportation Code;

(3) misdemeanor bail bond and personal bond forfeiture cases; and

(4) appeals de novo from the municipal and justice courts.

SECTION 18. The following provisions of the Transportation Code are repealed:

(1) Chapter 524; and

(2) Section 724.041(g).

SECTION 19. (a) Section 49.04, Penal Code, as amended by this Act, applies only to an offense committed on or after the effective date of this Act. For purposes of this subsection, an offense was committed before the effective date of this Act if any element of the offense occurred before the effective date of this Act.

(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

SECTION 20. This Act takes effect September 1, 2007.