The provisions of the bill that are the subject of this analysis would amend the Penal Code by creating the offense of aggravated driving while intoxicated.  Under present statute, regardless of the level of alcohol in a person’s blood stream the first time offense of driving while intoxicated is a Class B misdemeanor.  A person would commit the offense of aggravated driving while intoxicated if the person while driving has an alcohol concentration of 0.16 or more, or has an alcohol concentration level of 0.02 or more and is operating a commercial vehicle used to transport passengers or property. The minimum punishment for the offense of aggravated driving while intoxicated would be a Class A misdemeanor, the bill would also provide that such offenders would serve a minimum term of confinement of 30 days. The bill would also amend the enhanced offenses and penalties provision of the Penal Code by including the offense of aggravated driving while intoxicated in the conditions for which the punishment for various intoxication offenses can be enhanced to a felony of the third degree based on previous intoxication offense convictions.

A Class B Misdemeanor is punishable by confinement in a county jail for any term of not more than 180 days, or, in addition to confinement, a fine not to exceed $2,000.

A Class A Misdemeanor is punishable by confinement in a county jail for any term of not more than one year, or, in addition to confinement, a fine not to exceed $4,000.

A felony of the third degree is punishable by imprisonment in the institutional division for any term of not more than 10 years or less than 2 years, or, in addition to confinement, a fine not to exceed $10,000.

To provide an idea of the potential impact of the bill, the Department of Public Safety (DPS) reported 19,099 of the breath tests analyzed in fiscal year 2010 were tests in which the person had a blood alcohol content level of .16 or greater.   DPS reports the number of blood alcohol tests analyzed annually has increased over the past five years as a result of "No Refusal" projects where blood search warrants are obtained for suspects who refuse a breath alcohol test.  In fiscal year 2010, there were 8,913 felony community supervision placements and 50,907 misdemeanor community supervision placements for the offense of driving under the influence.  Blood alcohol content information is not available for either felony or misdemeanor community supervision placements. 

Alcohol concentration level information is not contained with statewide criminal history data or records, and there is no central repository of information for the number of alcohol concentration level tests of 0.02 or more for commercial motor vehicle operators.  Therefore, the number of offenders with punishments enhanced to the level of felony of the third degree as a result of the bill cannot be determined.