Senate Bill 671 hiakes Refi~sal to Surrender License A Class BMisdemeanor.Section 521.315 "Surrender oflicense," adds (c) and (d) whichmake it a Class B offense to fail or refme to surrender a license toDPS if the person's license has been demanded due to cancellation,disqud&ation or revocation.Applicability: Senate Bill 671 "takes effect September 1, 2001."<strong>The</strong> biU makes no fi~cthereference to applicability.DWI LawHouse Bill 5 becomes effective September 1,2001. It broadensthe Open Contai~~er Offenses and Consequences for Article 49Subseq~~ent ORenders.Open Corrtflir~er. Ad& a new section 49.031 creatlng m offenseas follows:A person conunits an offense IF the person knowinglypossesses an open container [containing any mount ofalcohol] in a pmenger area of a motor vehicle that islocated on a public higl~way, regardless of whether thevehicle is being operated or is stopped or parked.Possession by npelson of one or more open containenin a single criminal episode is a single offense.Dstnils of the law: It is an exception if the individual was a passengerin commercial trmsportation or in the living quarten of acamper, RV motorized house coach or motorizetl trdec <strong>The</strong> offenseis a Class C misdemeanor. Section 49.11 Entitled "Proof of blen$lState Unnecessaq" is amended by declamtion t11at it is inapplicable to49.031 offenses. No arrest is allowed wl~ere the defendant signs apromise to appearApplicnbilit~? Since it creates a crime it c;u~ constih~tionally applyonly to acts committed on its effective date, September 1 or oftexPRACTICE CalhllEiVT: Wl~at proof will suffice that it contains alcohol?PRACTIC~~IWTB: <strong>The</strong> passenger area spcciGcally excludes a gloveconlpartnlent or sinlila storage container that is locked, the t111nk orif no ttunk, the area behind the last upright seat.Pennl Code 49.09@i\'eru Clfissijcfltiorr Creflteb Increased pm~itive measures wheresubsequent comn~itted \\~itIun five yeas of comn~ission of most recentprior conviction, or within 10yenrs ofprior Intoxication Xanslaughter.iVeru r%?q~~irer~~enfs for n srrbseqzierrt DWI ofer~de~':A deep lung analysis device must be installed on each vehicleowned or ope~xted by the 49.09(g) defendant, md must remain so forone year after the first anniversa~y of license suspension the defendantnot operate any vehicle not so equipped. Pailore to comply is punis11-able by contempt.Applicflbility: Applies "only to a person convicted of an offenseinvolving the operating of a motor ~~elucle on or after September 1,2001."rh occupational driver's license is now prohibited. Section521.251 entitled "effective date of occupational license" is amended toinclude the follo~x*~g:Nohvithstanding any other provision in this section, if thepelson's driver's license has been suspended as a resultof second subsequent conviction under Section 49.04[DWl] 49.07 [Intoxication Assault] or 49.08[Intoxication Manslaughter], committed within fiveyears of the date on which the most recent precedingoffense was committed, an order gunting the person anoccupational license may not take effect before the fistannive~sary of the effective date of the suspension.AppIicabiIi!jc Applies "only to a pelson who applies for an occwpational driver's license on or after September 1,2001."INTEKPRBTFE COz\flfBNI. Whetllet the new (d) of 521.251 is toapply wl~en the current DWl is a second offense, or only applies if it isat least a third offense is on its face, ambiguous. Tlus is because it isnot clear whether the suspension referred to in "has been suspended"is the one for the current offense, or for an earlier one. <strong>For</strong> the personwith only a second, if the relevant time is from which the offe~isesare described is at the time of application, then at that time the secondoffenders driver's license "has been suspended as a result of a secondor subsequent conviction." This is bemuse application is by petitionandis to be made at the time a person's "License has been suspended."Subsection 521.242(a). However this inte~yretation is inconsistentwith both the ove~dl sci~en~e and lmguage of Section 521.251, withinwluch (d) is legislatively placed.Wrst, when the new (d) is examined in its legislatively designatedplace with the pre-existing-and unaltered-subsections (a) (b) and(c), it appeal3 to logical[y be the nest incremental extension of a stairstepping of prio~incident severity with (b) applying to a siugle priorsuspension resulting from an alcol~ol [or drug] related enforcementcontact, causing a 90-day prohibition; (c) applying to a single priorsuspension resulting from a prior DNI related conviction, causing a180-day ODL prolubition and the new (d) applling to two prior suspensionsresulting from hvo prior DWJ related con\ictions, causing aone-year ODL prohibition.Second, the identical language, "If the pelson's driver's liceme hasbeen susl)ende$ is used in B and C. In thek context the language canonly refer to a suspension separate from and pre-dating the one forwhich the current ODL application is being made because (b) and (c)both describe the suspension event as occurring "during the five yearspreceding the date of the penon's arrest."Eurthe~; the clear wording of the lauguage in (c) refers to a personwit1 one prior D\V1 con~iction and assigns the appropdale ODL prohibitionat 180 days.Were the language of (d) to be interpreted so as to also apply to aperson \\.it11 one prior OW, such inte~yretatioo would att~ihl~te to thelegislahlre an absu~d resdt -having hvo adjacent claws describecontlicting sanctions for the sale events. Tlus mo~lld violate a longstandingrule of statutoly interpretation. See Cc1111pbe1/ u. Stnle, 49S.W.311874 (Tex.CcApp. 2001) and mses cited therein.<strong>The</strong> period of a license suspension up011 convictio~l is increased.<strong>The</strong> title of Section 521.344 is changed from "Suspension for OffensesRelated to Use of Alcohol" to read "Suspension for Offenses InvolvingIntoxication." Section 521.344(a) (2)(a) (b) ad (d) are amended byadding the following underlined parts:Not less tl~an 90 da)s or more thw one year if the personis punished under Section 49.04 [D\VI] or 49.07[Intoxication Assault] Penal Code, except that if the person'slicense is suspended for a second or subsequentoffense under Section 49.07 [Intmication &sa111tl com-8 VOICE FOR WE DEFENSE WWW.lCDLA.COM OCTOBER 2001
vmitted with E e yyears of the date on wkcll the mostrecent preceding offense was conunitted, the suspensioncontinues for a period of one ),ear;<strong>For</strong> a DWI second and third the changes read:Not lm than 180 days or more than two years if punishedunder Section 49.09(a) [DWI Zud] or (b) IDWI3rd1, Penal Code, or not less than one year or more thantwo years, if the person is punished under Section49.09(a) or (L?), Peual Code, ad is subject to Section49.09(g) of that code.Appliuzbilify. <strong>The</strong>se changes apply "only to the suspension of thedr~er's license of a person convicted of an offense commilted on orafter Septenlber 1,2001.<strong>For</strong> an intoxication manslaughter case, the suspension period hasalso changed:Contuiues for a period set by the comt of not less than180 days or more than 2 yeam except that if the person'slicense is suspended for a second or subsequent offenseunder Section 49.08 [Intoxication Manslaugllter], PenalCode, comn~itted within 10 yean of date on which tl~emost recent preceding offense was comn~itted the suspensioncon~mes for a period set by the court of notless tlian one year or more than hvo years.Applicabilip: Tl~ese changes apply "only to die suspension of thedr~er's license of a person convicted of an offense conmitted on orafter September 1,2001."Completion of progm~ no longer prevents revocation of license.Section 521.344(d)(2) allowed for a kense vevocation protection ifthe defendant completed a program. Tllis is eliminated for repeatoffenders under 49.09(a) and (b) who are subject to 49.03(g).Applimbilit~? Applies "ody to the suspension of the drivcr*slicense of a pelson co~~victed of an offense co~~unitted on or afterSeptember 1,2001.Deep 1unganal)~is exceptio~lis elu~~ated Sechon 521 444(d) (2)is amended sucl~ that the license evocation protection heretoforeafforded probationer because a deep-lung a~~alysis device was installedis elvninatedfor 49.04(gi offende~s under 49.09(a) and (b).Applicfibility: Applies "only to the suspe~~sion of the driver'slicense of a pelson con~icted of an offense conmitted on or dterSeptember 1,2001.Requirement of Evaluation under Atticle 42.12 9 9(11) is added.Seclion ~(II) a~ticle 42.12 CCP is anlended to add a "within Eve ycar"repeat offender requiren~eat Illat a 9(11) evaluation be done to deter-&le alcol~ol or drug rel~nbilitatio~~ required.Appli~~~biIiv. Applies "only to a1 eduatiotl ordered in relation toan offense coau~~iliued on or after September 1,2001.hticle 42.12, Section 13 1s a~~~ended 2s follows, applylng ody to apetson placed 011 conum~nitp supe~visio~~ for an offense conmitted onor after September 1,2001:Section (R) 49.090 offender required to do not less lhau 5 da)s[ve~sustandard 72 hours] in county jd 011 DWI secondSectio~i (g) July may not recon~mcnd Illat license not be suspeu&ed wl~ere second or tlurd DWI defecida~~t is a 49.09(g) offender.Section (k) Jud~cidly ordered suspension is inc~eased from vangeof 180 days to tmo years for second and third offender to mge of oneto-twoyears for second or tllird aifecting 49.09(g) offender.<strong>The</strong> 49.03 offense of Consumption of AlcoholBeverage by operatoris repealed.HB2250 -Broadens Both Impact and Scope of Priors Available for49.09 Enhancement.49.@(a) and (b) are amended so that no matter how long agocommitted, enhancement to third degree felony requires only one(venus the former two) prior intoxication n~anslaugliter, or a subslantiallysimilar offense from another state.49.09(c) and (0 are amended to this effect:(1)<strong>The</strong> "more than 10 years allel" remoteness exception is narrowedso that commission of the current offense must haveoccurred more than 10 years after the latest of:(A)tlle date the judgment was entered for the previous convic-Uo11;(B)the date of discl~a~ge from the cornunity supeivision of theprevious conviction(C)the date of successful completion of the parole of the previousconviction(D)me date of completion of the confinement or imprisonnlentfor the previous conviction.(2)A prior conviction for Intoxication Manslaughter may beused for enhancement no matter now remoteApplicabilitjc Applies "ody to the enhancement of punishment attl~e hidof w offaw a,mn&cd on order.. . [Septeruba. 1,20011."Amricnn Bnr&ociafio?r: XalfOnalRrrminlion of Ctin~i~nlOefer~se ~tcjwo: SlnleL!m Sponso~d Ahmrd Critwimd Inm Co~me. Aft KiMm cr,nenl@ pmcfica it1dr~silrr nud IrWkrlq ruiib bls to@ mrd bwprfnu~ J l i e Ki~~ard/, <strong>The</strong> <strong>Voice</strong>s for.; the <strong>Defense</strong>&# Produced by Fireroads Producliansr r ,.