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.