82R23949 GCB-D

By: Smith of Tarrant, Christian, Callegari, H.B. No. 473

et al.

Substitute the following for H.B. No. 473:

By: Burkett C.S.H.B. No. 473

A BILL TO BE ENTITLED

AN ACT

relating to the consequences of an arrest for or conviction of certain intoxication offenses and to fees associated with the enforcement and administration of certain of those consequences.

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

SECTION 1. This Act shall be known as the Nicole "Lilly" Lalime Act.

SECTION 2. Sections 13(i) and (n), Article 42.12, Code of Criminal Procedure, are amended to read as follows:

(i) If a person convicted of an offense under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08 [Sections 49.04-49.08], Penal Code, is placed on community supervision, the court shall [may] require as a condition of community supervision that the defendant have a device installed, on the motor vehicle owned by the defendant or on the vehicle most regularly driven 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 the defendant not operate any motor vehicle that is not equipped with that device. [If it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, or if the person is convicted of an offense under Sections 49.04-49.06, Penal Code, and punished under Section 49.09(a) or (b), Penal Code, or of a second or subsequent offense under Section 49.07 or 49.08, Penal Code, and the person after conviction of either offense is placed on community supervision, the court shall require as a condition of community supervision that the defendant have the device installed on the appropriate vehicle and that the defendant not operate any motor vehicle unless the vehicle is equipped with that device. Before placing on community supervision a person convicted of an offense under Sections 49.04-49.08, Penal Code, the court shall determine from criminal history record information maintained by the Department of Public Safety whether the person has one or more previous convictions under Sections 49.04-49.08, Penal Code, or has one previous conviction under Sections 49.04-49.07, Penal Code, or one previous conviction under Section 49.08, Penal Code. If it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, or if the court determines that the person has one or more such previous convictions, the court shall require as a condition of community supervision that the defendant have that device installed on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant and that the defendant not operate any motor vehicle unless the vehicle is equipped with the device described in this subsection.] The court shall require the defendant to obtain the device at the defendant's own expense [cost] before the 30th day after the date of conviction unless the court finds that to do so would not be in the best interest of justice and enters its findings on record. The court shall require the defendant to provide evidence to the court within the 30-day period that the device has been installed on the appropriate vehicle and order the device to remain installed on that vehicle for a period not less than 50 percent of the supervision period. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to exceed twice the period of the court's order. 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. Notwithstanding the provisions of this section, if a person is required to operate a motor vehicle in the course and scope of the person's employment and if the vehicle is owned by the employer, the person may operate that vehicle without installation of an approved ignition interlock device if the employer has been notified of that driving privilege restriction and if proof of that notification is with the vehicle. This employment exemption does not apply, however, if the business entity that owns the vehicle is owned or controlled by the person whose driving privilege has been restricted. [A previous conviction may not be used for purposes of restricting a person to the operation of a motor vehicle equipped with an interlock ignition device under this subsection if:

[(1) the previous conviction was a final conviction under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08, Penal Code, and was for an offense committed more than 10 years before the instant offense for which the person was convicted and placed on community supervision; and

[(2) the person has not been convicted of an offense under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08 of that code, committed within 10 years before the date on which the instant offense for which the person was convicted and placed on community supervision.]

(n) Notwithstanding any other provision of this section or other law, the judge who places on community supervision a defendant who was younger than 21 years of age at the time of the offense and was convicted for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08 [Sections 49.04-49.08], Penal Code, shall[:

[(1)] order that the defendant's driver's license be suspended for 90 days beginning on the date that the person is placed on community supervision[; and

[(2) require as a condition of community supervision that the defendant not operate a motor vehicle unless the vehicle is equipped with the device described by Subsection (i) of this section].

SECTION 3. Section 521.246, Transportation Code, is amended to read as follows:

Sec. 521.246. IGNITION INTERLOCK DEVICE REQUIREMENT. (a) If the person's license has been suspended after a conviction under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08, Penal Code, as [the judge, before signing an order, shall determine from the criminal history record information maintained by the department whether the person has any previous conviction under those laws.

[(b) As part of the order the judge may restrict the person to the operation of a motor vehicle equipped with an ignition interlock device if the judge determines that the person's license has been suspended following a conviction under Section 49.04, 49.07, or 49.08, Penal Code. As] part of the order, the judge shall restrict the person to the operation of a motor vehicle equipped with an ignition interlock device [if the judge determines that:

[(1) the person has two or more convictions under any combination of Section 49.04, 49.07, or 49.08, Penal Code; or

[(2) the person's license has been suspended after a conviction under Section 49.04, Penal Code, for which the person has been punished under Section 49.09, Penal Code].

(b) [(c)] The person shall obtain the ignition interlock device at the person's own expense unless the court finds that to do so is not in the best interest of justice and enters that finding in the record. If the court determines that the person is unable to pay for the device, the court may impose a reasonable payment schedule for a term not to exceed twice the period of the court's order.

(c) [(d)] The court shall order the ignition interlock device to remain installed for at least half of the period of supervision.

(d) [(e)] A person to whom this section applies may operate a motor vehicle without the installation of an approved ignition interlock device if:

(1) the person is required to operate a motor vehicle in the course and scope of the person's employment;

(2) the vehicle is owned by the person's employer;

(3) the employer is not owned or controlled by the person whose driving privilege is restricted;

(4) the employer is notified of the driving privilege restriction; and

(5) proof of that notification is with the vehicle.

[(f) A previous conviction may not be used for purposes of restricting a person to the operation of a motor vehicle equipped with an interlock ignition device under this section if:

[(1) the previous conviction was a final conviction under Section 49.04, 49.07, or 49.08, Penal Code, and was for an offense committed more than 10 years before the instant offense for which the person was convicted; and

[(2) the person has not been convicted of an offense under Section 49.04, 49.07, or 49.08 of that code committed within 10 years before the date on which the instant offense for which the person was convicted.]

SECTION 4. Section 521.247(c), Transportation Code, is amended to read as follows:

(c) If the department approves a device, the department shall notify the manufacturer of that approval in writing. Written notice from the department to a manufacturer is admissible in a civil or criminal proceeding in this state. The manufacturer shall pay an amount not less than $500, as determined by the department, to cover the costs [reimburse the department for any cost] incurred by the department in approving the device.

SECTION 5. Section 521.2475(b), Transportation Code, is amended to read as follows:

(b) Each [The department shall assess the cost of preparing the evaluation equally against each] manufacturer of an approved device shall annually pay to the department a reasonable amount not less than $500, as determined by the department, to help defray costs incurred in complying with Subsection (a) and in administering this subchapter.

SECTION 6. Section 521.2476(d), Transportation Code, is amended to read as follows:

(d) A vendor shall reimburse the department in a reasonable amount not less than $450, as determined by the department, to cover costs incurred in [for the reasonable cost of] conducting each inspection of the vendor's facilities under this section.

SECTION 7. Section 521.251, Transportation Code, is amended to read as follows:

Sec. 521.251. EFFECTIVE DATE OF OCCUPATIONAL LICENSE. (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.

(b) An order under this subchapter granting the person an occupational license may not take effect before the 45th day after the effective date of the person's driver's license suspension under Chapter 524 or 724 if [If] the person's [driver's] license has been suspended as a result of:

(1) an alcohol-related or drug-related enforcement contact during the five years preceding the date of the person's arrest; or

(2) [, the order may not take effect before the 91st day after the effective date of the suspension.

[(c) If the person's driver's license has been suspended as a result of a conviction under Section 49.04, 49.07, or 49.08, Penal Code, during the five years preceding the date of the person's arrest, the order may not take effect before the 181st day after the effective date of the suspension.

[(d) Notwithstanding any other provision in this section, if the person's driver's license has been suspended as a result of] a second or subsequent conviction under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, committed within five years of the date on which the most recent preceding offense was committed[, an order granting the person an occupational license may not take effect before the first anniversary of the effective date of the suspension].

(c) [(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;

(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

(3) an analysis of a breath or blood 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 8. (a) Except as provided by Subsection (b) of this section, 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 governed 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.

(b) The change in law made by this Act in amending Section 521.251, Transportation Code, applies only to a person who applies for an occupational driver's license on or after September 1, 2011.

SECTION 9. This Act takes effect September 1, 2011.