Texas 2009 - 81st Regular

Texas Senate Bill SB298 Compare Versions

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1	1	By: Carona, et al. S.B. No. 298
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the authority of the Department of Public Safety of the
7	7	State of Texas and certain local law enforcement agencies to
8	8	establish a checkpoint on a highway or street to determine whether
9	9	persons are driving while intoxicated.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Title 1, Code of Criminal Procedure, is amended
12	12	by adding Chapter 65 to read as follows:
13	13	CHAPTER 65. SOBRIETY CHECKPOINTS
14	14	Art. 65.01. DEFINITIONS. In this chapter:
15	15	(1) "Highway or street" and "limited-access or
16	16	controlled-access highway" have the meanings assigned by Section
17	17	541.302, Transportation Code.
18	18	(2) "Law enforcement agency" means:
19	19	(A) the Department of Public Safety;
20	20	(B) the sheriff's department of a county with a
21	21	population of 250,000 or more; or
22	22	(C) the police department of a municipality with
23	23	a population of 500,000 or more.
24	24	(3) "Sobriety checkpoint" means a checkpoint
25	25	authorized under Article 65.02.
26	26	Art. 65.02. AUTHORIZATION FOR SOBRIETY CHECKPOINTS.
27	27	(a) Except as provided by Subsection (b), a law enforcement agency
28	28	may operate a temporary checkpoint as provided by this chapter to
29	29	determine whether persons operating motor vehicles on a highway or
30	30	street are intoxicated and in violation of Section 49.04 or 49.045,
31	31	Penal Code. The checkpoint must be operated on a highway or street
32	32	other than:
33	33	(1) a limited-access or controlled-access highway;
34	34	(2) an overpass;
35	35	(3) a bridge or causeway; or
36	36	(4) the single ingress to or egress from a designated
37	37	area.
38	38	(b) The Department of Public Safety may not operate a
39	39	temporary checkpoint in a county with a population of less than
40	40	250,000.
41	41	Art. 65.03. LAW ENFORCEMENT AGENCY COORDINATION. Each law
42	42	enforcement agency shall coordinate efforts with other law
43	43	enforcement agencies as appropriate to implement this chapter.
44	44	Art. 65.04. APPROVAL OF AND PROCEDURES FOR SOBRIETY
45	45	CHECKPOINTS. (a) As applicable, a captain for the Texas Highway
46	46	Patrol, the sheriff elected to that position, or the mayor of the
47	47	municipality must approve the operation of a sobriety checkpoint by
48	48	peace officers of the Department of Public Safety, a sheriff's
49	49	department, or a municipal police department and the procedures to
50	50	be used in the operation of the checkpoint before the checkpoint
51	51	begins operation.
52	52	(b) The law enforcement agency must record in writing and
53	53	publish on an appropriate publicly accessible Internet website the
54	54	procedures:
55	55	(1) used in selecting each site for a sobriety
56	56	checkpoint; and
57	57	(2) to be used in the operation of each sobriety
58	58	checkpoint, including procedures regarding the selection of motor
59	59	vehicles to be stopped.
60	60	(c) The procedures for the operation of a sobriety
61	61	checkpoint must ensure that the selection of motor vehicles to be
62	62	stopped is reasonably predictable and nonarbitrary.
63	63	(d) The criteria for selecting the location for a sobriety
64	64	checkpoint must include the number of traffic accidents in the
65	65	vicinity of the location in which the use of alcohol was a factor
66	66	and that occurred in the preceding 12 months and the number of
67	67	arrests for intoxication-related offenses in that vicinity in the
68	68	preceding 12 months. The selection of the location of a sobriety
69	69	checkpoint must be made without regard to the ethnic or
70	70	socioeconomic characteristics of the area in which the checkpoint
71	71	is located.
72	72	(e) The law enforcement agency, in establishing the
73	73	location, time, and design of a sobriety checkpoint, shall consider
74	74	the safety of the public entering the checkpoint and the peace
75	75	officers operating the checkpoint. The law enforcement agency
76	76	shall make reasonable efforts to place signs or other devices to
77	77	advise operators of oncoming motor vehicles of the sobriety
78	78	checkpoint and the purpose of the checkpoint, to demarcate the
79	79	checkpoint with flares, flags, or traffic cones, and to otherwise
80	80	illuminate the checkpoint as necessary.
81	81	(f) The peace officer who makes the initial traffic
82	82	directive or other communication with the operator of a motor
83	83	vehicle at the sobriety checkpoint must be wearing a uniform of the
84	84	law enforcement agency that is distinguishable from civilian dress.
85	85	(g) The law enforcement agency shall establish procedures
86	86	governing the encounters between motor vehicle operators and the
87	87	peace officers to ensure that:
88	88	(1) a video and audio recording is made of the
89	89	encounter;
90	90	(2) intrusion on the operator is minimized; and
91	91	(3) an inquiry is reasonably related to determining
92	92	whether the operator is intoxicated and in violation of Section
93	93	49.04 or 49.045, Penal Code.
94	94	(h) Notwithstanding Section 521.025 or 601.053,
95	95	Transportation Code, a peace officer may not request a person
96	96	operating a motor vehicle at the sobriety checkpoint to display the
97	97	person's driver's license or concealed handgun license or to
98	98	furnish evidence of financial responsibility unless the officer has
99	99	reasonable suspicion or probable cause to believe that the person
100	100	has committed or is committing an offense. A peace officer may not
101	101	direct the operator of a motor vehicle to leave the vehicle or move
102	102	the vehicle off the highway or street or routine sobriety
103	103	checkpoint diversion route unless the officer has reasonable
104	104	suspicion or probable cause to believe that the person has
105	105	committed or is committing an offense. The design of a sobriety
106	106	checkpoint may require that each motor vehicle passing through the
107	107	checkpoint be diverted to a location adjacent to the highway or
108	108	street to ensure safety.
109	109	(i) A peace officer at the sobriety checkpoint may not
110	110	require a motor vehicle operator to perform a sobriety test unless
111	111	the officer has reasonable suspicion or probable cause to believe
112	112	that the operator is in violation of Section 49.04 or 49.045, Penal
113	113	Code. A peace officer who requires or requests an operator to
114	114	provide a specimen of breath, blood, or urine must comply with
115	115	Chapter 724, Transportation Code.
116	116	(j) Unless a peace officer has reasonable suspicion or
117	117	probable cause to detain a motor vehicle operator for a criminal
118	118	offense, the time during which an officer makes an inquiry of an
119	119	operator should not exceed three minutes, and the total time during
120	120	which the operator must wait to pass through the checkpoint should
121	121	not exceed 10 minutes. The law enforcement agency shall make
122	122	reasonable efforts to reduce these periods to not more than one and
123	123	five minutes, respectively.
124	124	(k) Before beginning the operation of a sobriety
125	125	checkpoint, the law enforcement agency shall publicize through the
126	126	use of the media the date and time for the operation of a sobriety
127	127	checkpoint but is not required to disclose the location of the
128	128	checkpoint.
129	129	(l) A law enforcement agency may not operate a sobriety
130	130	checkpoint at one location for more than four hours and may not
131	131	operate a checkpoint at the same location more than once in a
132	132	12-month period. For the purposes of this subsection, sobriety
133	133	checkpoints located within one mile of each other are considered to
134	134	be at the same location.
135	135	(m) A law enforcement agency shall maintain until at least
136	136	the fifth anniversary of the date on which the agency concludes the
137	137	operation of a sobriety checkpoint a record of the operation of the
138	138	checkpoint that contains:
139	139	(1) the date, time, location, and duration of the
140	140	checkpoint;
141	141	(2) the procedures used in selecting the site for the
142	142	checkpoint;
143	143	(3) the number and characteristics of motor vehicles
144	144	stopped at the checkpoint and the number and nature of arrests made
145	145	and citations issued at the checkpoint; and
146	146	(4) the identities of the peace officers operating the
147	147	checkpoint.
148	148	(n) A law enforcement agency shall maintain until at least
149	149	the second anniversary of the date on which the agency concludes the
150	150	operation of a sobriety checkpoint any video or audio recording
151	151	made at the checkpoint of an encounter between a motor vehicle
152	152	operator and a peace officer under Subsection (g)(1).
153	153	Art. 65.05. REPORT ON EFFECTIVENESS OF CHECKPOINTS.
154	154	(a) Not later than January 15 of each calendar year, a law
155	155	enforcement agency shall report the operation of each checkpoint
156	156	during the preceding calendar year to the traffic safety section of
157	157	the traffic operations division of the Texas Department of
158	158	Transportation at its offices in Austin.
159	159	(b) The traffic operations division is entitled to inspect
160	160	any information in the possession of the law enforcement agency
161	161	that relates to the operation of a sobriety checkpoint by the
162	162	agency.
163	163	(c) Not later than February 1, 2015, the traffic operations
164	164	division shall submit a report on the effectiveness of sobriety
165	165	checkpoints operated under this chapter to the governor, the
166	166	lieutenant governor, and the speaker of the house of
167	167	representatives.
168	168	Art. 65.06. EXPIRATION. This chapter expires August 31,
169	169	2015.
170	170	SECTION 2. A law enforcement agency authorized to operate a
171	171	sobriety checkpoint under Chapter 65, Code of Criminal Procedure,
172	172	as added by this Act, shall submit the first report required by
173	173	Article 65.05 of that chapter not later than January 15, 2010.
174	174	SECTION 3. This Act takes effect immediately if it receives
175	175	a vote of two-thirds of all the members elected to each house, as
176	176	provided by Section 39, Article III, Texas Constitution. If this
177	177	Act does not receive the vote necessary for immediate effect, this
178	178	Act takes effect September 1, 2009.