HBA-AMW, EDN H.B. 91 77(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 91 By: Hill 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 91 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 91 amends the Penal and Transportation codes and the Code of Criminal Procedure to expand the civil and criminal consequences of operating a motor vehicle while intoxicated. The bill amends the Penal Code to provide that a person commits the offense of consumption or possession of an alcoholic beverage regardless of whether the person is observed by a peace officer if the person consumes an alcoholic beverage while operating a motor vehicle in a public place. The bill provides that an occupant of a motor vehicle that is 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 situated on the right-of-way of a public highway, commits an offense if the person consumes an alcoholic beverage or possesses in the passenger area of the motor vehicle a receptacle that contains an alcoholic beverage that has been opened, has a broken seal, or has the contents partially removed. The bill provides an affirmative defense to prosecution if the person consuming or possessing the alcoholic beverage is a passenger in either the living quarters of a house coach or motor vehicle that is designed, maintained, or used primarily for the transportation of persons for compensation (Sec. 49.03, Penal Code). H.B. 91 amends the Transportation Code and the Code of Criminal Procedure to expand the civil and criminal consequences of operating a motor vehicle while intoxicated. The bill amends the Transportation Code to require the Department of Public Safety (DPS) to automatically suspend all vehicle registrations of a person who is convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated (offense) committed within five years of the most recent preceding offense and whose driver's license is suspended or revoked for specified offenses. The suspension of the vehicle registration begins on the same day that the driver's license suspension or revocation takes effect and continues until the driver's license suspension terminates or the revoked license is reinstated (Sec. 502.451, Transportation Code). Reinstatement of the vehicle registration is contingent on a reinstatement fee set forth in the bill (Sec. 502.458). During the registration suspension, the person is prohibited from renewing the suspended vehicle registration or registering another vehicle in the person's name (Sec. 502.452). The bill provides that a person commits a misdemeanor subject to a fine and jail time if the person operates the vehicle on a highway or knowingly permits the vehicle to be operated on a highway in violation of the suspension (Sec. 502.453). The bill requires DPS to give written notice by personal delivery or U.S. mail of the vehicle registration suspension (Sec. 502.454). The bill requires a person notified of a vehicle registration suspension to send to DPS the person's vehicle registration receipts and the license plates for the vehicle no later than 10 days after receipt of the written notice (Sec. 502.455). Failure to return the registration and license plates is an offense punishable by a fine and jail time set forth in the bill (Sec. 502.456). An owner whose vehicle registration has been suspended is prohibited from transferring the registration, unless authorized by the director of DPS (Sec. 502.457). H.B. 91 prohibits an occupational license order from taking effect on or before the first anniversary of the effective date of the 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). The bill increases from 180 days to one year the minimum time of a driver's license suspension for a person with at least one previous conviction of an offense relating to the operating of a motor vehicle while intoxicated or who has been convicted of 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). H.B. 91 amends the Code of Criminal Procedure to require 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 previous offense was committed, to direct a supervision officer to conduct an evaluation to determine the appropriateness of, and a course of conduct necessary for, alcohol rehabilitation and to report that evaluation to the judge (Sec. 16, Art. 42.12). The bill prohibits a jury from recommending that a driver's license not be suspended for any person convicted of one or more previous offenses of operating a vehicle while intoxicated. The bill also increases from 180 days to one year the minimum amount of time for a suspension for a person convicted of one or more previous offenses of operating a vehicle while intoxicated (Sec. 13, Art. 42.12). The bill requires that the minimum amount of community service work ordered by the judge be 30 eighthour days for a person convicted of one previous offense relating to the operating of a motor vehicle while intoxicated, and 60 eight-hour days for a person convicted twice of a previous offense relating to the operating of a motor vehicle while intoxicated (Sec. 16, Art. 42.12). EFFECTIVE DATE September 1, 2001.