HBA-KMH C.S.S.B. 128 76(R) BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 128 By: Nelson Criminal Jurisprudence 5/23/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Under current federal law, states are required to enact and enforce laws that meet the requirements for the Repeat Offender Program and the Open Container Program. Under each program, if the state provisions are not in place and enforced by October 1, 2001, Texas could lose its ability to spend construction dollars on traffic congestion relief and other highway construction projects because one and one-half percent of the state's NHS, STP, and IM funds, or approximately $20 million in federal highway dollars, would be transferred to the highway safety or hazard elimination programs. For each year that a state is noncompliant, the amount that will be transferred will be increased to three percent of the state's NHS, STP, and IM funds. C.S.S.B. 128 brings Texas into compliance with federal law by establishing that a repeat offender of some alcohol related offenses is required to attend a drug or alcohol rehabilitation program. The bill also establishes that an occupant of a motor vehicle who is consuming alcohol or possesses an open container of alcohol commits a Class C misdemeanor and that the person need not be observed by a peace officer in the physical act of consumption to commit the offense. Additionally, the bill provides punishments and an affirmative defense for an offense. 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 49.03, Penal Code, as follows: Sec. 49.03. CONSUMPTION OR POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE. (a) Establishes that a person commits an offense if that person consumes an alcoholic beverage while operating a motor vehicle in a public place, and deletes the condition that a peace officer observe that person committing the offense. (b) Establishes that an occupant of a motor vehicle located on a public highway, or on the right-of-way of a public highway including a rest area, comfort station, picnic area, roadside park, or scenic overlook commits an offense if that person consumes an alcoholic beverage, or possesses in the passenger area a bottle, can, or other receptacle that contains an alcoholic beverage and has been opened, has a broken seal, or has the contents partially removed. (c) Establishes that it is an affirmative defense to prosecution under Subsection (b), that the vehicle was not owned or being leased by the defendant and the defendant did not know that the open container of alcoholic beverage was in the vehicle or the person consuming an alcoholic beverage or the receptacle containing the alcoholic beverage is in the possession of a passenger in the living quarters of a house coach or house trailer or a passenger in a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation. (d) Provides that an offense under this section is a Class C misdemeanor punishable by a fine not to exceed $50, including all court costs. SECTION 2. Amends Sections 521.344(a) , (b) and (d), Transportation Code, as follows: Sec. 521.344. New Title: SUSPENSION FOR OFFENSES INVOLVING INTOXICATION. (a) Increases the period of suspension of a person's license for conviction of an offense under this section, if the person is punished under Section 49.09 (Enhanced Offenses and Penalties), Penal Code, to not less than one year, rather than not less than 180 days. Makes a conforming change. (b) Makes a conforming change. (d) Provides that the Department of Public Safety (DPS) is not prohibited from revoking the person's license if the person is required to complete a rehabilitation program unless the person was punished under Section 49.09, Penal Code. Makes a conforming change. SECTION 3. Amends Section 724.048, Transportation Code, to delete text providing that the determination of DPS or administrative law judge is a civil matter, is independent of an is not an estoppel as to any matter in issue in an adjudication of a criminal charge arising from the occurrence that is the basis for the suspension or denial, and does not preclude litigation of the same or similar facts in a criminal prosecution. Deletes text providing that the disposition of a criminal charge does not affect a license suspension or denial under this chapter (Implied Consent) and is not an estoppel as to any matter in issue in a suspension or denial proceeding under this chapter. Makes nonsubstantive changes. SECTION 4. Amends Section 9(h), Article 42.12, Code of Criminal Procedure, to require the judge, in any case involving a second or subsequent offense of Driving While Intoxicated, Intoxication Assault, or Intoxication Manslaughter under Sections 49.04, 49.07, and 49.08, Penal Code, respectively, and involving the operation of a motor vehicle, to direct an approved person to conduct an evaluation to determine the appropriate action for a drug or alcohol rehabilitation program for a defendant. SECTION 5. Amends Sections 13(g) and (k), Article 42.12, Code of Criminal Procedure, to establish that Subsection (g) (which allows a jury to recommend that a driver's license of a defendant not be suspended) does not apply to a person punished under Section 49.09, Penal Code. Makes a conforming change. SECTION 6. Amends Section 16, Article 42.12, Code of Criminal Procedure, by amending Subsection (b) and adding Subsection (b-1), to create an exception to the amounts of specified community service hours that can be ordered by the judge. Prohibits the amount of community service work ordered by the judge from being less than 30 eight-hour days for an offense of Driving While Intoxicated under Section 49.04, Penal Code, that is punished under Section 49.09(a), and prohibits the work from being less than 60 eight-hour days for the offense of Driving While Intoxicated under Section 49.04, Penal Code, that is punished under Section 49.09(b) (relating to a person convicted two or more times). SECTION 7. Effective date: September 1, 1999. Makes application of SECTIONS 1, 2, 4, 5, and 6 of this Act prospective. SECTION 8. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 128 modifies the original in SECTION 1 (Section 49.03, Penal Code) to include in the affirmative defense provided by Subsection (c) instances in which the vehicle was not owned or being leased by the defendant and the defendant did not know that the open container of alcoholic beverage was in the vehicle. The substitute further modifies the original to provide that an offense under this section is punishable by a fine not to exceed $50, including all court costs. C.S.S.B. 128 modifies the original by deleting SECTION 2 which proposed new Subchapter I, Chapter 502 (Registration of Vehicles), Transportation Code, titled "Suspension of Registration of Repeat DWI Offenders. SECTION 2 of the original required the Department of Public Safety (DPS) to automatically suspend all vehicle registrations of repeat DWI offenders and provided the procedure for suspension. SECTION 2 of the original further provided a penalty for violation of the suspension. Additionally, SECTION 2 of the original provided the procedure for the reinstatement of the person's license. C.S.S.B. 128 modifies the original by deleting SECTION 3 which amended Section 521.251, Transportation Code, to prohibit an order granting a person an occupational license from taking effect before the first anniversary of the effective date of the suspension, if the person's driver's license has been suspended for a second or subsequent conviction under Section 49.04, 49.07, or 49.08, Penal Code, committed within five years of the date on which the most recent preceding offense was committed. SECTION 3 of the original also made a conforming change. C.S.S.B. 128 redesignates SECTION 4 of the original as SECTION 2 of the substitute. C.S.S.B. 128 modifies the original by adding a new SECTION 3 (Section 724.048, Transportation Code). For a more in-depth analysis of this section please see the Section-by-Section Analysis of this bill. C.S.S.B. 128 redesignates SECTIONS 5-9 of the original as SECTIONS 4-8 of the substitute. C.S.S.B. 128 modifies the original in SECTION 4 (Section 9(h), Article 42.12, Code of Criminal Procedure), by deleting proposed text which required the judge to direct a supervision officer to conduct an evaluation to determine the appropriateness of and course of conduct for alcohol or drug rehabilitation for a defendant only if the defendant's repeat offense, as described under this subsection, was committed within five years of the date on which the most recent preceding offense was committed. C.S.S.B. 128 modifies the original in SECTION 7 to make conforming changes concerning the application of the changes in law made by the various sections of the Act.