HBA-AMW H.B. 5 77(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 5 By: Dunnam Criminal Jurisprudence 3/4/2001 Introduced BACKGROUND AND PURPOSE Under current 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. Currently, the percentage of funds required to be transferred is 1.5 percent. Beginning October 1, 2002, the percentage doubles and since Texas is currently not in compliance with federal law, the state risks losing certain highway construction funds that could be 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 sets forth exceptions to such an offense (Sec. 49.031, Penal Code). H.B. 5 sets forth that the purpose of the bill is to avoid the imposition of sanctions against the state and the loss of federal highway construction funds under federal provisions that require states to enact and enforce a law that prohibits the possession of an open alcoholic beverage container in the passenger area of a motor vehicle that is located on a public highway or the right-of-way adjacent to a public highway and require states to enact and enforce minimum penalties against repeat intoxicated drivers (SECTION 1). The bill sets forth provisions regarding the suspension of the enforcement of and the expiration of the provisions regarding possession of an alcoholic beverage container in a motor vehicle after the suspension or enjoinment of the federal sanctions against the state regarding open container laws (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 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 at least one previous conviction for operating a motor vehicle while intoxicated, intoxication assault, or intoxication manslaughter. 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 (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 (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 one or more specified intoxication-related offenses. The bill increases the minimum time of imprisonment from three days to five days for a person convicted of a second offense relating to the operating of a motor vehicle, aircraft, or watercraft while intoxicated or operating or assembling an amusement ride while intoxicated. 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 one or more previous offenses of operating a vehicle while intoxicated (Art. 42.12, Code of Criminal Procedure). EFFECTIVE DATE September 1, 2001. If, before September 1, 2001, the attorney general files with the secretary of state a certificate finding the suspension or enjoinment of the sanctions against the state regarding open container laws, the provisions relating to open beverage container requirements do not take effect until the 30th day after the attorney general files a subsequent certificate with the secretary of state certifying the finding by the attorney general that the suspension or enjoinment of the sanctions against the state no longer exists.