S.B. No. 328
AN ACT
relating to operating a motor vehicle or a watercraft while
intoxicated or under the influence of alcohol.
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. The heading to Section 106.041, Alcoholic
Beverage Code, is amended to read as follows:
Sec. 106.041. DRIVING OR OPERATING WATERCRAFT UNDER THE
INFLUENCE OF ALCOHOL BY MINOR.
SECTION 3. Subsections (a) and (g), Section 106.041,
Alcoholic Beverage Code, are amended to read as follows:
(a) A minor commits an offense if the minor operates a motor
vehicle in a public place, or a watercraft, while having any
detectable amount of alcohol in the minor's system.
(g) An offense under this section is not a lesser included
offense under Section 49.04, 49.045, or 49.06, Penal Code.
SECTION 4. Subsection (j), Section 106.041, Alcoholic
Beverage Code, is amended by adding Subdivision (4) to read as
follows:
(4) "Watercraft" has the meaning assigned by Section
49.01, Penal Code.
SECTION 5. 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 6. Subsections (h) and (n), Section 13, Article
42.12, Code of Criminal Procedure, are amended to read as follows:
(h) If a person convicted of an offense under Sections
49.04-49.08, Penal Code, is placed on community supervision, the
judge shall require, as a condition of the community supervision,
that the defendant attend and successfully complete before the
181st day after the day community supervision is granted an
educational program jointly approved by the Texas Commission on
Alcohol and Drug Abuse, the Department of Public Safety, the
Traffic Safety Section of the Texas Department of Transportation,
and the community justice assistance division of the Texas
Department of Criminal Justice designed to rehabilitate persons who
have driven while intoxicated. The Texas Commission on Alcohol and
Drug Abuse shall publish the jointly approved rules and shall
monitor, coordinate, and provide training to persons providing the
educational programs. The Texas Commission on Alcohol and Drug
Abuse is responsible for the administration of the certification of
approved educational programs and may charge a nonrefundable
application fee for the initial certification of approval and for
renewal of a certificate. The judge may waive the educational
program requirement or may grant an extension of time to
successfully complete the program that expires not later than one
year after the beginning date of the person's community
supervision, however, if the defendant by a motion in writing shows
good cause. In determining good cause, the judge may consider but
is not limited to: the defendant's school and work schedule, the
defendant's health, the distance that the defendant must travel to
attend an educational program, and the fact that the defendant
resides out of state, has no valid driver's license, or does not
have access to transportation. The judge shall set out the finding
of good cause for waiver in the judgment. If a defendant is
required, as a condition of community supervision, to attend an
educational program or if the court waives the educational program
requirement, the court clerk shall immediately report that fact to
the Department of Public Safety, on a form prescribed by the
department, for inclusion in the person's driving record. If the
court grants an extension of time in which the person may complete
the program, the court clerk shall immediately report that fact to
the Department of Public Safety on a form prescribed by the
department. The report must include the beginning date of the
person's community supervision. Upon the person's successful
completion of the educational program, the person's instructor
shall give notice to the Department of Public Safety for inclusion
in the person's driving record and to the community supervision and
corrections department. The community supervision and corrections
department shall then forward the notice to the court clerk for
filing. If the Department of Public Safety does not receive notice
that a defendant required to complete an educational program has
successfully completed the program within the period required by
this section, as shown on department records, the department shall
revoke the defendant's driver's license, permit, or privilege or
prohibit the person from obtaining a license or permit, as provided
by Sections 521.344(e) and (f), Transportation Code. The
Department of Public Safety may not reinstate a license suspended
under this subsection unless the person whose license was suspended
makes application to the department for reinstatement of the
person's license and pays to the department a reinstatement fee of
$100 [$50]. The Department of Public Safety shall remit all fees
collected under this subsection to the comptroller for deposit in
the general revenue fund. This subsection does not apply to a
defendant if a jury recommends community supervision for the
defendant and also recommends that the defendant's driver's license
not be suspended.
(n) Notwithstanding any other provision of this section or
other law, the judge who places on community supervision a
defendant who was [is] younger than 21 years of age at the time of
the offense and was convicted for an offense under Sections
49.04-49.08, Penal Code, shall:
(1) order that the defendant's driver's license be
suspended for 90 days beginning on the date that the person is
placed on community supervision; and
(2) require as a condition of community supervision
that the defendant not operate a motor vehicle unless the vehicle is
equipped with the device described by Subsection (i) of this
section.
SECTION 7. Section 521.341, Transportation Code, is amended
to read as follows:
Sec. 521.341. REQUIREMENTS FOR AUTOMATIC LICENSE
SUSPENSION. Except as provided by Sections 521.344(d)-(i), a
license is automatically suspended on final conviction of the
license holder of:
(1) an offense under Section 19.05, Penal Code,
committed as a result of the holder's criminally negligent
operation of a motor vehicle;
(2) an offense under Section 38.04, Penal Code, if the
holder used a motor vehicle in the commission of the offense;
(3) an offense under Section 49.04, 49.045, or 49.08,
Penal Code;
(4) an offense under Section 49.07, Penal Code, if the
holder used a motor vehicle in the commission of the offense;
(5) an offense punishable as a felony under the motor
vehicle laws of this state;
(6) an offense under Section 550.021;
(7) an offense under Section 521.451 or 521.453; or
(8) an offense under Section 19.04, Penal Code, if the
holder used a motor vehicle in the commission of the offense.
SECTION 8. Subsections (a) and (b), Section 521.342,
Transportation Code, are amended to read as follows:
(a) Except as provided by Section 521.344, the license of a
person who was under 21 years of age at the time of the offense,
other than an offense classified as a misdemeanor punishable by
fine only, is automatically suspended on conviction of:
(1) an offense under Section 49.04, 49.045, or 49.07,
Penal Code, committed as a result of the introduction of alcohol
into the body;
(2) an offense under the Alcoholic Beverage Code,
other than an offense to which Section 106.071 of that code applies,
involving the manufacture, delivery, possession, transportation,
or use of an alcoholic beverage;
(3) a misdemeanor offense under Chapter 481, Health
and Safety Code, for which Subchapter P does not require the
automatic suspension of the license;
(4) an offense under Chapter 483, Health and Safety
Code, involving the manufacture, delivery, possession,
transportation, or use of a dangerous drug; or
(5) an offense under Chapter 485, Health and Safety
Code, involving the manufacture, delivery, possession,
transportation, or use of an abusable volatile chemical.
(b) The department shall suspend for one year the license of
a person who is under 21 years of age and is convicted of an offense
under Section 49.04, 49.045, 49.07, or 49.08, Penal Code,
regardless of whether the person is required to attend an
educational program under Section 13(h), Article 42.12, Code of
Criminal Procedure, that is designed to rehabilitate persons who
have operated motor vehicles while intoxicated, unless the person
is placed under community supervision under that article and is
required as a condition of the community supervision to not operate
a motor vehicle unless the vehicle is equipped with the device
described by Section 13(i) of that article. If the person is
required to attend such a program and does not complete the program
before the end of the person's suspension, the department shall
suspend the person's license or continue the suspension, as
appropriate, until the department receives proof that the person
has successfully completed the program. On the person's successful
completion of the program, the person's instructor shall give
notice to the department and to the community supervision and
corrections department in the manner provided by Section 13(h),
Article 42.12, Code of Criminal Procedure.
SECTION 9. Subsections (a), (c), and (i), Section 521.344,
Transportation Code, are amended to read as follows:
(a) Except as provided by Sections 521.342(b) and 521.345,
and by Subsections (d)-(i), if a person is convicted of an offense
under Section 49.04, 49.045, or 49.07, Penal Code, the license
suspension:
(1) begins on a date set by the court that is not
earlier than the date of the conviction or later than the 30th day
after the date of the conviction, as determined by the court; and
(2) continues for a period set by the court according
to the following schedule:
(A) not less than 90 days or more than one year,
if the person is punished under Section 49.04, 49.045, or 49.07,
Penal Code, except that if the person's license is suspended for a
second or subsequent offense under Section 49.07 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;
(B) not less than 180 days or more than two years,
if the person is punished under Section 49.09(a) or (b), Penal Code;
or
(C) not less than one year or more than two years,
if the person is punished under Section 49.09(a) or (b), Penal Code,
and is subject to Section 49.09(h) of that code.
(c) The court shall credit toward the period of suspension a
suspension imposed on the person for refusal to give a specimen
under Chapter 724 if the refusal followed an arrest for the same
offense for which the court is suspending the person's license
under this chapter. The court may not extend the credit to a
person:
(1) who has been previously convicted of an offense
under Section 49.04, 49.045, 49.07, or 49.08, Penal Code; or
(2) whose period of suspension is governed by Section
521.342(b).
(i) On the date that a suspension order under Section
521.343(c) is to expire, the period of suspension or the
corresponding period in which the department is prohibited from
issuing a license is automatically increased to two years unless
the department receives notice of successful completion of the
educational program as required by Section 13, Article 42.12, Code
of Criminal Procedure. At the time a person is convicted of an
offense under Section 49.04 or 49.045, Penal Code, the court shall
warn the person of the effect of this subsection. On the person's
successful completion of the program, the person's instructor shall
give notice to the department and to the community supervision and
corrections department in the manner required by Section 13,
Article 42.12, Code of Criminal Procedure. If the department
receives proof of completion after a period has been extended under
this subsection, the department shall immediately end the
suspension or prohibition.
SECTION 10. Subdivision (3), Section 524.001,
Transportation Code, is amended to read as follows:
(3) "Alcohol-related or drug-related enforcement
contact" means a driver's license suspension, disqualification, or
prohibition order under the laws of this state or another state
resulting from:
(A) a conviction of an offense prohibiting the
operation of a motor vehicle or watercraft while:
(i) intoxicated;
(ii) under the influence of alcohol; or
(iii) under the influence of a controlled
substance;
(B) a refusal to submit to the taking of a breath
or blood specimen following an arrest for an offense prohibiting
the operation of a motor vehicle or an offense prohibiting the
operation of a watercraft, if the watercraft was powered with an
engine having a manufacturer's rating of 50 horsepower or more,
while:
(i) intoxicated;
(ii) under the influence of alcohol; or
(iii) under the influence of a controlled
substance; or
(C) an analysis of a breath or blood specimen
showing an alcohol concentration of a level specified by Section
49.01, Penal Code, following an arrest for an offense prohibiting
the operation of a motor vehicle or watercraft while intoxicated.
SECTION 11. Subsection (a), Section 524.011,
Transportation Code, is amended to read as follows:
(a) An officer arresting a person shall comply with
Subsection (b) if:
(1) the person is arrested for an offense under
Section 49.04, 49.045, or 49.06, Penal Code, or an offense under
Section 49.07 or 49.08 of that code involving the operation of a
motor vehicle or watercraft, submits to the taking of a specimen of
breath or blood and an analysis of the specimen shows the person had
an alcohol concentration of a level specified by Section
49.01(2)(B), Penal Code; or
(2) the person is a minor arrested for an offense under
Section 106.041, Alcoholic Beverage Code, or Section 49.04, 49.045,
or 49.06, Penal Code, or an offense under Section 49.07 or 49.08,
Penal Code, involving the operation of a motor vehicle or
watercraft and:
(A) the minor is not requested to submit to the
taking of a specimen; or
(B) the minor submits to the taking of a specimen
and an analysis of the specimen shows that the minor had an alcohol
concentration of greater than .00 but less than the level specified
by Section 49.01(2)(B), Penal Code.
SECTION 12. Subsection (b), Section 524.012,
Transportation Code, is amended to read as follows:
(b) The department shall suspend the person's driver's
license if the department determines that:
(1) the person had an alcohol concentration of a level
specified by Section 49.01(2)(B), Penal Code, while operating a
motor vehicle in a public place or while operating a watercraft; or
(2) the person was [is] a minor on the date that the
breath or blood specimen was obtained and had any detectable amount
of alcohol in the minor's system while operating a motor vehicle in
a public place or while operating a watercraft.
SECTION 13. Subsection (b), Section 524.015,
Transportation Code, is amended to read as follows:
(b) A suspension may not be imposed under this chapter on a
person who is acquitted of a criminal charge under Section 49.04,
49.045, 49.06, 49.07, or 49.08, Penal Code, or Section 106.041,
Alcoholic Beverage Code, arising from the occurrence that was the
basis for the suspension. If a suspension was imposed before the
acquittal, the department shall rescind the suspension and shall
remove any reference to the suspension from the person's
computerized driving record.
SECTION 14. Subsection (b), Section 524.022,
Transportation Code, is amended to read as follows:
(b) A period of suspension under this chapter for a minor
is:
(1) 60 days if the minor has not been previously
convicted of an offense under Section 106.041, Alcoholic Beverage
Code, or Section 49.04, 49.045, or 49.06, Penal Code, or an offense
under Section 49.07 or 49.08, Penal Code, involving the operation
of a motor vehicle or a watercraft;
(2) 120 days if the minor has been previously
convicted once of an offense listed by Subdivision (1); or
(3) 180 days if the minor has been previously
convicted twice or more of an offense listed by Subdivision (1).
SECTION 15. Section 524.023, Transportation Code, is
amended to read as follows:
Sec. 524.023. APPLICATION OF SUSPENSION UNDER OTHER LAWS.
(a) If a person is convicted of an offense under Section 106.041,
Alcoholic Beverage Code, or Section 49.04, 49.045, 49.06, 49.07, or
49.08, Penal Code, and if any conduct on which that conviction is
based is a ground for a driver's license suspension under this
chapter and Section 106.041, Alcoholic Beverage Code, Subchapter O,
Chapter 521, or Subchapter H, Chapter 522, each of the suspensions
shall be imposed.
(b) The court imposing a driver's license suspension under
Section 106.041, Alcoholic Beverage Code, or Chapter 521 or 522 as
required by Subsection (a) shall credit a period of suspension
imposed under this chapter toward the period of suspension required
under Section 106.041, Alcoholic Beverage Code, or Subchapter O,
Chapter 521, or Subchapter H, Chapter 522, unless the person was
convicted of an offense under Article 6701l-1, Revised Statutes, as
that law existed before September 1, 1994, Section 19.05(a)(2),
Penal Code, as that law existed before September 1, 1994, Section
49.04, 49.045, 49.06, 49.07, or 49.08, Penal Code, or Section
106.041, Alcoholic Beverage Code, before the date of the conviction
on which the suspension is based, in which event credit may not be
given.
SECTION 16. Subsections (a) and (d), Section 524.035,
Transportation Code, are amended to read as follows:
(a) The issues that must be proved at a hearing by a
preponderance of the evidence are:
(1) whether:
(A) the person had an alcohol concentration of a
level specified by Section 49.01(2)(B), Penal Code, while operating
a motor vehicle in a public place or while operating a watercraft;
or
(B) the person was [is] a minor on the date that
the breath or blood specimen was obtained and had any detectable
amount of alcohol in the minor's system while operating a motor
vehicle in a public place or while operating a watercraft; and
(2) whether reasonable suspicion to stop or probable
cause to arrest the person existed.
(d) An administrative law judge may not find in the
affirmative on the issue in Subsection (a)(1) if:
(1) the person is an adult and the analysis of the
person's breath or blood determined that the person had an alcohol
concentration of a level below that specified by Section 49.01,
Penal Code, at the time the specimen was taken; or
(2) the person was [is] a minor on the date that the
breath or blood specimen was obtained and the administrative law
judge does not find that the minor had any detectable amount of
alcohol in the minor's system when the minor was arrested.
SECTION 17. Subsection (a), Section 524.042,
Transportation Code, is amended to read as follows:
(a) A suspension of a driver's license under this chapter is
stayed on the filing of an appeal petition only if:
(1) the person's driver's license has not been
suspended as a result of an alcohol-related or drug-related
enforcement contact during the five years preceding the date of the
person's arrest; and
(2) the person has not been convicted during the 10
years preceding the date of the person's arrest of an offense under:
(A) Article 6701l-1, Revised Statutes, as that
law existed before September 1, 1994;
(B) Section 19.05(a)(2), Penal Code, as that law
existed before September 1, 1994;
(C) Section 49.04, 49.045, or 49.06, Penal Code;
(D) Section 49.07 or 49.08, Penal Code, if the
offense involved the operation of a motor vehicle or a watercraft;
or
(E) Section 106.041, Alcoholic Beverage Code.
SECTION 18. 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 of or placed on
community supervision 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) on two or more occasions, has been previously
convicted of or placed on community supervision 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 19. Section 724.017, Transportation Code, is
amended by amending Subsection (b) and adding Subsection (d) to
read as follows:
(b) If the blood specimen was taken according to recognized
medical procedures, the [The] person who takes the blood specimen
under this chapter, the facility that employs the person who takes
the blood specimen, or the hospital where the blood specimen is
taken[,] is immune from civil liability [not liable] for damages
arising from the taking of the blood specimen at the request or
order of the peace officer or pursuant to a search warrant [to take
the blood specimen] as provided by this chapter and is not subject
to discipline by any licensing or accrediting agency or body [if the
blood specimen was taken according to recognized medical
procedures]. This subsection does not relieve a person from
liability for negligence in the taking of a blood specimen. The
taking of a specimen from a person who objects to the taking of the
specimen or who is resisting the taking of the specimen does not in
itself constitute negligence and may not be considered evidence of
negligence.
(d) A person whose blood specimen is taken under this
chapter in a hospital is not considered to be present in the
hospital for medical screening or treatment unless the appropriate
hospital personnel determine that medical screening or treatment is
required for proper medical care of the person.
SECTION 20. (a) The change in law to Article 18.01, Code of
Criminal Procedure, 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.
(b) The changes in law to Chapters 521 and 524 and Section
724.012, Transportation Code, and Section 13, Article 42.12, Code
of Criminal Procedure, apply 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 covered 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.
SECTION 21. This Act takes effect September 1, 2009.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 328 passed the Senate on
March 19, 2009, by the following vote: Yeas 31, Nays 0;
May 28, 2009, Senate refused to concur in House amendments and
requested appointment of Conference Committee; May 29, 2009, House
granted request of the Senate; May 31, 2009, Senate adopted
Conference Committee Report by the following vote: Yeas 29,
Nays 2.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 328 passed the House, with
amendments, on May 19, 2009, by the following vote: Yeas 140,
Nays 1, three present not voting; May 29, 2009, House granted
request of the Senate for appointment of Conference Committee;
May 31, 2009, House adopted Conference Committee Report by the
following vote: Yeas 145, Nays 0, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor