HBA-KMH C.S.H.B. 3489 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 3489 By: Dunnam Criminal Jurisprudence 4/30/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Present laws designed to deter driving while intoxicated have been hampered by the failure to enforce the videotaping of driving while intoxicated (DWI) suspects. Videotapes of DWI suspects are highly successful tools because they encourage guilty pleas for the guilty and often exonerate the innocent. Another helpful tool in DWI deterrence is administrative license revocation. When first passed laws authorizing administrative license revocation sought to give the state the widest discretion in the enforcement of DWI-related laws. However, these laws have been the subject of numerous challenges and widespread use of the legal tactic known as "collateral estoppel." The collateral estoppel doctrine states that prior judgement between same parties on a different cause of action is an estoppel as to those matters in issue or points controverted, on determination of which finding or verdict was rendered. C.S.H.B. 3489 provides a statutory method to enforce the use of videotaping in DWI arrests and requires certain counties deemed large enough to maintain videotaping equipment. This bill also clarifies the law as it relates to administrative license revocation to deter further challenges on collateral estoppel grounds. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 49.09, Penal Code, to limit application of this section to the punishment phase of a trial. Deletes language providing for an enhanced penalty if it was shown during trial that a person had previously been convicted two times of certain specified intoxication offenses. Makes conforming and nonsubstantive changes. SECTION 2. Amends Chapter 38, Code of Criminal Procedure, by adding Article 38.39, as follows: Sec. 38.39. DWI VIDEOTAPES. (a) Provides that a person arrested for an offense under Section 49.04 (Driving While Intoxicated), 49.07 (Intoxication Assault), or 49.08 (Intoxication Manslaughter), Penal Code, must be videotaped if the county in which the person is arrested is required to maintain videotaping equipment. (b) Requires each county with a population of 25,000 or more to purchase and maintain electronic devices capable of visually recording a person arrested in the county for an offense under Section 49.04, Penal Code. (c) Provides that a videotape under this article must be maintained until the final disposition of any proceeding against the defendant relating to the arrest. Provides that the videotape must be made available to any attorney representing the defendant during the period it is maintained. (d) Makes an analysis of a person's breath or blood, or refusal of analysis, inadmissible in a subsequent proceeding if a videotape of the defendant is not made as required by this article. SECTION 3. Amends Section 724.048, Transportation Code, to delete provisions providing for a separate civil suspension or denial of a license to operate a motor vehicle, the possible effect of a suspension as preclusion of a separate criminal prosecution on the same or similar facts, and the possible effect of the disposition of criminal charges in a suspension or denial proceeding under this chapter. SECTION 4. Makes application of this Act prospective. SECTION 5. Effective date: September 1, 1999. SECTION 6. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 3489 modifies the original in SECTION 1 by making conforming changes in accordance with the substitutes modification of SECTION 2 of the original. C.S.H.B. 3489 modifies the original by removing proposed SECTION 2 which created Section 49.091, Penal Code, relating to felony punishment for certain repeat offenders. C.S.H.B. 3489 modifies the original by redesignating SECTIONS 3-7 as SECTIONS 2-6. C.S.H.B. 3489 modifies the original in SECTION 2 (proposed Article 38.89) to subject persons arrested under Sections 49.07 and 49.08, Penal Code, to the provisions of this section (DWI Videotapes). The substitute also provides that a person's refusal to consent to the taking of a specimen for analysis is inadmissable in a subsequent proceeding if the refusal was not videotaped in accordance with this section.