By: Deuell, et al. S.B. No. 261
A BILL TO BE ENTITLED
AN ACT
relating to the taking of a specimen of the breath or blood of a
person arrested for an intoxication offense under certain
circumstances.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Nicole "Lilly"
Lalime Act.
SECTION 2. Subsections (b) and (d), Section 724.012,
Transportation Code, are amended to read as follows:
(b) A peace officer shall require the taking of a specimen
of the person's breath or blood under any of the following
circumstances if[:
[(1)] the officer arrests the person for an offense
under Chapter 49, Penal Code, involving the operation of a motor
vehicle or a watercraft and the person refuses the officer's
request to submit to the taking of a specimen voluntarily:[;]
(1) [(2)] the person was the operator of a motor
vehicle or a watercraft involved in an accident that the officer
reasonably believes occurred as a result of the offense and,[;
[(3)] at the time of the arrest, the officer
reasonably believes that as a direct result of the accident:
(A) any individual has died or will die; [or]
(B) an individual other than the person has
suffered serious bodily injury; or
(C) an individual other than the person has
suffered bodily injury and been transported to a hospital or other
medical facility for medical treatment;
(2) the offense for which the officer arrests the
person is an offense under Section 49.045, Penal Code; or
(3) at the time of the arrest, the officer possesses or
receives reliable information from a credible source that the
person:
(A) has been previously convicted or placed on
probation for an offense under Section 49.045, 49.07, or 49.08,
Penal Code, or an offense under the laws of another state containing
elements substantially similar to the elements of an offense under
those sections; or
(B) has been previously convicted or placed on
probation on two or more occasions for an offense under Section
49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the
laws of another state containing elements substantially similar to
the elements of an offense under those sections [and
[(4) the person refuses the officer's request to
submit to the taking of a specimen voluntarily].
(d) In this section, "bodily injury" and "serious bodily
injury" have [has] the meanings [meaning] assigned by Section 1.07,
Penal Code.
SECTION 3. Article 18.01, Code of Criminal Procedure, is
amended by amending Subsection (c) and adding Subsection (j) to
read as follows:
(c) A search warrant may not be issued under Article
18.02(10) [pursuant to Subdivision (10) of Article 18.02 of this
code] unless the sworn affidavit required by Subsection (b) [of
this article] sets forth sufficient facts to establish probable
cause: (1) that a specific offense has been committed, (2) that the
specifically described property or items that are to be searched
for or seized constitute evidence of that offense or evidence that a
particular person committed that offense, and (3) that the property
or items constituting evidence to be searched for or seized are
located at or on the particular person, place, or thing to be
searched. Except as provided by Subsections (d), [and] (i), and (j)
[of this article], only a judge of a municipal court of record or a
county court who is an attorney licensed by the State of Texas, a
statutory county court judge, a district court judge, a judge of the
Court of Criminal Appeals, including the presiding judge, or a
justice of the Supreme Court of Texas, including the chief justice,
may issue warrants under Article 18.02(10) [pursuant to Subdivision
(10), Article 18.02 of this code].
(j) Any magistrate who is an attorney licensed by this state
may issue a search warrant under Article 18.02(10) to collect a
blood specimen from a person who:
(1) is arrested for an offense under Section 49.04,
49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code; and
(2) refuses to submit to a breath or blood alcohol
test.
SECTION 4. (a) Section 724.012, Transportation Code, as
amended by this Act, applies only to an offense committed on or
after the effective date of this Act. An offense committed before
the effective date of this Act is governed by the law in effect when
the offense was committed, and the former law is continued in effect
for that purpose. For purposes of this section, an offense was
committed before the effective date of this Act if any element of
the offense was committed before that date.
(b) Article 18.01, Code of Criminal Procedure, as amended by
this Act, applies only to a search warrant issued on or after the
effective date of this Act. A search warrant issued before the
effective date of this Act is governed by the law in effect on the
date the warrant was issued, and the former law is continued in
effect for that purpose.
SECTION 5. This Act takes effect September 1, 2009.