By: Carona, et al. S.B. No. 298
A BILL TO BE ENTITLED
AN ACT
relating to the authority of the Department of Public Safety of the
State of Texas and certain local law enforcement agencies to
establish a checkpoint on a highway or street to determine whether
persons are driving while intoxicated.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 1, Code of Criminal Procedure, is amended
by adding Chapter 65 to read as follows:
CHAPTER 65. SOBRIETY CHECKPOINTS
Art. 65.01. DEFINITIONS. In this chapter:
(1) "Highway or street" and "limited-access or
controlled-access highway" have the meanings assigned by Section
541.302, Transportation Code.
(2) "Law enforcement agency" means:
(A) the Department of Public Safety;
(B) the sheriff's department of a county with a
population of 250,000 or more; or
(C) the police department of a municipality with
a population of 500,000 or more.
(3) "Sobriety checkpoint" means a checkpoint
authorized under Article 65.02.
Art. 65.02. AUTHORIZATION FOR SOBRIETY CHECKPOINTS.
(a) Except as provided by Subsection (b), a law enforcement agency
may operate a temporary checkpoint as provided by this chapter to
determine whether persons operating motor vehicles on a highway or
street are intoxicated and in violation of Section 49.04 or 49.045,
Penal Code. The checkpoint must be operated on a highway or street
other than:
(1) a limited-access or controlled-access highway;
(2) an overpass;
(3) a bridge or causeway; or
(4) the single ingress to or egress from a designated
area.
(b) The Department of Public Safety may not operate a
temporary checkpoint in a county with a population of less than
250,000.
Art. 65.03. LAW ENFORCEMENT AGENCY COORDINATION. Each law
enforcement agency shall coordinate efforts with other law
enforcement agencies as appropriate to implement this chapter.
Art. 65.04. APPROVAL OF AND PROCEDURES FOR SOBRIETY
CHECKPOINTS. (a) As applicable, a captain for the Texas Highway
Patrol, the sheriff elected to that position, or the mayor of the
municipality must approve the operation of a sobriety checkpoint by
peace officers of the Department of Public Safety, a sheriff's
department, or a municipal police department and the procedures to
be used in the operation of the checkpoint before the checkpoint
begins operation.
(b) The law enforcement agency must record in writing and
publish on an appropriate publicly accessible Internet website the
procedures:
(1) used in selecting each site for a sobriety
checkpoint; and
(2) to be used in the operation of each sobriety
checkpoint, including procedures regarding the selection of motor
vehicles to be stopped.
(c) The procedures for the operation of a sobriety
checkpoint must ensure that the selection of motor vehicles to be
stopped is reasonably predictable and nonarbitrary.
(d) The criteria for selecting the location for a sobriety
checkpoint must include the number of traffic accidents in the
vicinity of the location in which the use of alcohol was a factor
and that occurred in the preceding 12 months and the number of
arrests for intoxication-related offenses in that vicinity in the
preceding 12 months. The selection of the location of a sobriety
checkpoint must be made without regard to the ethnic or
socioeconomic characteristics of the area in which the checkpoint
is located.
(e) The law enforcement agency, in establishing the
location, time, and design of a sobriety checkpoint, shall consider
the safety of the public entering the checkpoint and the peace
officers operating the checkpoint. The law enforcement agency
shall make reasonable efforts to place signs or other devices to
advise operators of oncoming motor vehicles of the sobriety
checkpoint and the purpose of the checkpoint, to demarcate the
checkpoint with flares, flags, or traffic cones, and to otherwise
illuminate the checkpoint as necessary.
(f) The peace officer who makes the initial traffic
directive or other communication with the operator of a motor
vehicle at the sobriety checkpoint must be wearing a uniform of the
law enforcement agency that is distinguishable from civilian dress.
(g) The law enforcement agency shall establish procedures
governing the encounters between motor vehicle operators and the
peace officers to ensure that:
(1) a video and audio recording is made of the
encounter;
(2) intrusion on the operator is minimized; and
(3) an inquiry is reasonably related to determining
whether the operator is intoxicated and in violation of Section
49.04 or 49.045, Penal Code.
(h) Notwithstanding Section 521.025 or 601.053,
Transportation Code, a peace officer may not request a person
operating a motor vehicle at the sobriety checkpoint to display the
person's driver's license or concealed handgun license or to
furnish evidence of financial responsibility unless the officer has
reasonable suspicion or probable cause to believe that the person
has committed or is committing an offense. A peace officer may not
direct the operator of a motor vehicle to leave the vehicle or move
the vehicle off the highway or street or routine sobriety
checkpoint diversion route unless the officer has reasonable
suspicion or probable cause to believe that the person has
committed or is committing an offense. The design of a sobriety
checkpoint may require that each motor vehicle passing through the
checkpoint be diverted to a location adjacent to the highway or
street to ensure safety.
(i) A peace officer at the sobriety checkpoint may not
require a motor vehicle operator to perform a sobriety test unless
the officer has reasonable suspicion or probable cause to believe
that the operator is in violation of Section 49.04 or 49.045, Penal
Code. A peace officer who requires or requests an operator to
provide a specimen of breath, blood, or urine must comply with
Chapter 724, Transportation Code.
(j) Unless a peace officer has reasonable suspicion or
probable cause to detain a motor vehicle operator for a criminal
offense, the time during which an officer makes an inquiry of an
operator should not exceed three minutes, and the total time during
which the operator must wait to pass through the checkpoint should
not exceed 10 minutes. The law enforcement agency shall make
reasonable efforts to reduce these periods to not more than one and
five minutes, respectively.
(k) Before beginning the operation of a sobriety
checkpoint, the law enforcement agency shall publicize through the
use of the media the date and time for the operation of a sobriety
checkpoint but is not required to disclose the location of the
checkpoint.
(l) A law enforcement agency may not operate a sobriety
checkpoint at one location for more than four hours and may not
operate a checkpoint at the same location more than once in a
12-month period. For the purposes of this subsection, sobriety
checkpoints located within one mile of each other are considered to
be at the same location.
(m) A law enforcement agency shall maintain until at least
the fifth anniversary of the date on which the agency concludes the
operation of a sobriety checkpoint a record of the operation of the
checkpoint that contains:
(1) the date, time, location, and duration of the
checkpoint;
(2) the procedures used in selecting the site for the
checkpoint;
(3) the number and characteristics of motor vehicles
stopped at the checkpoint and the number and nature of arrests made
and citations issued at the checkpoint; and
(4) the identities of the peace officers operating the
checkpoint.
(n) A law enforcement agency shall maintain until at least
the second anniversary of the date on which the agency concludes the
operation of a sobriety checkpoint any video or audio recording
made at the checkpoint of an encounter between a motor vehicle
operator and a peace officer under Subsection (g)(1).
Art. 65.05. REPORT ON EFFECTIVENESS OF CHECKPOINTS.
(a) Not later than January 15 of each calendar year, a law
enforcement agency shall report the operation of each checkpoint
during the preceding calendar year to the traffic safety section of
the traffic operations division of the Texas Department of
Transportation at its offices in Austin.
(b) The traffic operations division is entitled to inspect
any information in the possession of the law enforcement agency
that relates to the operation of a sobriety checkpoint by the
agency.
(c) Not later than February 1, 2015, the traffic operations
division shall submit a report on the effectiveness of sobriety
checkpoints operated under this chapter to the governor, the
lieutenant governor, and the speaker of the house of
representatives.
Art. 65.06. EXPIRATION. This chapter expires August 31,
2015.
SECTION 2. A law enforcement agency authorized to operate a
sobriety checkpoint under Chapter 65, Code of Criminal Procedure,
as added by this Act, shall submit the first report required by
Article 65.05 of that chapter not later than January 15, 2010.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.