| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to the punishment for certain intoxication-related |
|
|
offenses; creating the offense of aggravated driving while |
|
|
intoxicated. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Chapter 49, Penal Code, is amended by adding |
|
|
Section 49.046 to read as follows: |
|
|
Sec. 49.046. AGGRAVATED DRIVING WHILE INTOXICATED. (a) A |
|
|
person commits an offense if: |
|
|
(1) the person is intoxicated while operating a motor |
|
|
vehicle in a public place; and |
|
|
(2) the person: |
|
|
(A) has an alcohol concentration of 0.16 or more; |
|
|
or |
|
|
(B) has an alcohol concentration of 0.02 or more |
|
|
and is operating a commercial motor vehicle, as defined by Section |
|
|
522.003, Transportation Code. |
|
|
(b) Except as provided by Section 49.09, an offense under |
|
|
this section is a Class A misdemeanor, with a minimum term of |
|
|
confinement of 30 days. As provided by Article 42.033, Code of |
|
|
Criminal Procedure, the judge of the sentencing court may permit |
|
|
the person to serve the person's term of confinement |
|
|
intermittently. |
|
|
SECTION 2. Section 49.09, Penal Code, is amended by |
|
|
amending Subsections (b) and (h) and adding Subsection (b-4) to |
|
|
read as follows: |
|
|
(b) An offense under Section 49.04, 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 previously been convicted: |
|
|
(1) one time of 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) one time of an offense under Section 49.046 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 49.046; or |
|
|
(3) two times of 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. |
|
|
(b-4) An offense under Section 49.046 is a felony of the |
|
|
third degree if it is shown on the trial of the offense that the |
|
|
person has previously been convicted: |
|
|
(1) one time of 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) 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. |
|
|
(h) This subsection applies only to a person convicted of an |
|
|
offense under Section 49.046 or a second or subsequent offense |
|
|
relating to the operating of a motor vehicle while intoxicated |
|
|
committed within five years of the date on which the most recent |
|
|
preceding offense was committed. The court shall enter an order |
|
|
that requires the defendant to have a device installed, on each |
|
|
motor vehicle owned or operated by the defendant, that uses a |
|
|
deep-lung breath analysis mechanism to make impractical the |
|
|
operation of the motor vehicle if ethyl alcohol is detected in the |
|
|
breath of the operator, and that requires that before the first |
|
|
anniversary of the ending date of the period of license suspension |
|
|
under Section 521.344, Transportation Code, the defendant not |
|
|
operate any motor vehicle that is not equipped with that device. |
|
|
The court shall require the defendant to obtain the device at the |
|
|
defendant's own cost on or before that ending date, require the |
|
|
defendant to provide evidence to the court on or before that ending |
|
|
date that the device has been installed on each appropriate |
|
|
vehicle, and order the device to remain installed on each vehicle |
|
|
until the first anniversary of that ending date. If the court |
|
|
determines the offender is unable to pay for the device, the court |
|
|
may impose a reasonable payment schedule not to extend beyond the |
|
|
first anniversary of the date of installation. The Department of |
|
|
Public Safety shall approve devices for use under this subsection. |
|
|
Section 521.247, Transportation Code, applies to the approval of a |
|
|
device under this subsection and the consequences of that approval. |
|
|
Failure to comply with an order entered under this subsection is |
|
|
punishable by contempt. For the purpose of enforcing this |
|
|
subsection, the court that enters an order under this subsection |
|
|
retains jurisdiction over the defendant until the date on which the |
|
|
device is no longer required to remain installed. To the extent of |
|
|
a conflict between this subsection and Section 13(i), Article |
|
|
42.12, Code of Criminal Procedure, this subsection controls. |
|
|
SECTION 3. Subchapter I, Chapter 545, Transportation Code, |
|
|
is amended by adding Section 545.429 to read as follows: |
|
|
Sec. 545.429. CONVICTION FOR AGGRAVATED DRIVING WHILE |
|
|
INTOXICATED; IMPOUNDMENT OR IMMOBILIZATION OF VEHICLE. (a) A |
|
|
court that convicts a person for an offense under Section 49.046, |
|
|
Penal Code, shall order the sheriff of the county in which the court |
|
|
has jurisdiction to impound or immobilize the motor vehicle |
|
|
operated by the person at the time of the offense for a period of |
|
|
seven days beginning on the day after the date the court enters the |
|
|
conviction if the person: |
|
|
(1) was an owner of the motor vehicle at the time of |
|
|
the offense; |
|
|
(2) is an owner of the motor vehicle on the date the |
|
|
court enters the conviction; and |
|
|
(3) is the primary operator of the motor vehicle on the |
|
|
date the court enters the conviction. |
|
|
(b) A sheriff acting under a court order issued under |
|
|
Subsection (a) may require that the motor vehicle, prior to |
|
|
immobilization, be taken to: |
|
|
(1) a garage or other place of safety; or |
|
|
(2) a garage designated or maintained by the county. |
|
|
(c) Notwithstanding Article 18.23, Code of Criminal |
|
|
Procedure, the person convicted of an offense under Section 49.046, |
|
|
Penal Code, is liable for all removal and storage fees incurred as a |
|
|
result of the impoundment or immobilization of the motor vehicle |
|
|
and is not entitled to take possession of the vehicle until those |
|
|
fees are paid. |
|
|
SECTION 4. The change in law made by this Act applies 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 |
|
|
covered 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 5. This Act takes effect September 1, 2011. |