HBA-AMW H.B. 5 77(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 5
By: Dunnam
Criminal Jurisprudence
8/8/2001
Enrolled



BACKGROUND AND PURPOSE 

Under federal law, states are required to enact laws that meet federal
requirements for both repeat DWI offenders and open container laws.  If a
state fails to enact or is not enforcing an open container law or a law
relating to repeat DWI offenders, federal law requires that a percentage of
federal highway funds apportioned to the state be diverted for use in
traffic safety programs.  The percentage of funds required to be
transferred is 1.5 percent.  Beginning October 1, 2002, the percentage
doubles.  Prior to the 77th Legislature, Texas was not in compliance with
federal law and risked losing certain highway construction funds that could
have been spent on projects to ease congestion and enhance mobility on
highways.  House Bill 5 establishes provisions which bring Texas into
compliance with federal open container laws and federal laws for repeat DWI
offenders. 

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. 

ANALYSIS

House Bill 5 amends the Penal and Transportation codes and the Code of
Criminal Procedure to establish provisions relating to the possession of an
open container and to modify provisions relating to repeat offenders for
driving while intoxicated or driving under the influence. 

The bill provides that a person commits a Class C misdemeanor if the person
possesses an open container in a passenger area of a motor vehicle that is
located on a public highway, regardless of whether the vehicle is being
operated or is stopped or parked.  The bill specifies that possession by a
person of one or more open containers in a single criminal episode is a
single offense.  The bill requires a peace officer charging a person with
possession of an alcoholic beverage in a motor vehicle, instead of taking
the person before a magistrate, to issue to the person a written citation
and notice to appear that contains the time and place the person must
appear before a magistrate, the name and address of the person charged, and
the offense charged.  If the person makes a written promise to appear
before the magistrate by signing in duplicate the citation and notice to
appear issued by the officer, the bill requires the officer to release the
person.  The bill provides that it is an exception to these provisions that
if at the time of the offense the defendant was a passenger in:  

 _the passenger area of a motor vehicle designed, maintained, or used
primarily for the transportation of persons for compensation, including a
bus, taxicab, or limousine; or 

 _the living quarters of a motorized house coach or motorized house
trailer, including a selfcontained camper, a motor home or a recreational
vehicle (Sec. 49.031, Penal Code). 

If a person is convicted of a second or subsequent offense related to
driving while intoxicated committed within five years of the date on which
the most recent preceding offense was committed, the bill requires the
court to enter an order requiring a 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.  The bill also requires the order entered by the court to require
the defendant not to operate any motor vehicle that is not equipped with
the deep-lung breath analysis device before the first anniversary of the
ending date of the period of driver's license suspension.  The bill sets
forth requirements regarding payment for the deep-lung breath analysis
device, installation of the device, and approval of the device by the
Department of Public Safety (DPS).  The bill also sets forth provisions for
failure to comply with the court order, enforcement of the court order, and
conflicts between these provisions and other statutes (Sec. 49.09, Penal
Code). The bill specifies that proof of a culpable mental state is required
for conviction of possession of an alcoholic beverage in a motor vehicle
(Sec. 49.11, Penal Code). 

The bill prohibits an occupational license order from taking effect before
the first anniversary of the effective date of the driver's license
suspension if the person's driver's license has been suspended as a result
of a second or subsequent conviction committed within five years of the
date on which the most recent preceding offense was committed (Sec.
521.251, Transportation Code).  The bill increases from 180 days to one
year the minimum time for a  driver's license suspension of a person with a
second or subsequent conviction for an offense relating to the operating of
a motor vehicle while intoxicated or intoxication manslaughter if the
offense was committed within five years of the date on which the most
recent preceding offense was committed.  The bill provides that if the
driver's license is suspended for a second or subsequent offense of
intoxication assault committed within five years of the date on which the
most recent preceding offense was committed, the suspension continues for a
period of one year.  The bill authorizes DPS to revoke the driver's license
of a repeat offender who as a result of probation or community supervision
is required to attend an educational program or to not operate a vehicle
without a deep-lung breath analysis device if the offense was committed
within 10 years of the date on which the most recent preceding offense was
committed (Sec. 521.344, Transportation Code) 

H.B. 5 requires the criminal court judge, in any case involving a second or
subsequent offense related to operating a motor vehicle while intoxicated,
intoxication assault, or intoxication manslaughter, committed within five
years of the date on which the most recent preceding offense was committed,
to direct certain persons or entities to conduct an evaluation to determine
the appropriateness of, and a course of conduct necessary for, alcohol or
drug rehabilitation and to report that evaluation to the judge (SECTION 7,
Art. 42.12, Code of Criminal Procedure). 

The bill prohibits a jury from recommending that a driver's license not be
suspended for any person convicted of a second or subsequent offense
relating to the operation of a motor vehicle while intoxicated if the
offense was committed within five years of the date on which the most
recent preceding offense was committed.  The bill increases from three days
to five days the minimum time of imprisonment for a person convicted of a
second offense relating to the operating of a motor vehicle while
intoxicated committed within five years of the date on which the preceding
offense was committed.  The bill also increases from 180 days to one year
the minimum amount of time for a driver's license or permit suspension of a
person convicted of specified intoxication-related offenses committed
within five years of the date on which the most recent preceding offense
was committed (SECTION 8, Art. 42.12, Code of Criminal Procedure).  

EFFECTIVE DATE

September 1, 2001.