Legislative Update 2003:
The Driver Responsibility Program
and Other Legislation Affecting
DWI Defense in Texas
FREE TEXAS DWI DUI CASE EVALUATION
Following is the language from HB3588, which
establishes a new chapter in the Transportation Code, chapter 708.
Under the new Driver Responsibility Program, drivers will be assigned “points” for convictions and face payment of “surcharges” if too many points are accumulated.
This program creates additional consequences for convictions for DWI, DWLS, No Insurance, and similar offenses beginning September 1st.
CHAPTER 708. DRIVER RESPONSIBILITY PROGRAM
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 708.001. DEFINITIONS. In this chapter, "department" and "license" have the meanings assigned by Section 521.001.
Sec. 708.002. RULES. The department shall adopt and enforce rules to implement and enforce this chapter.
Sec. 708.003. FINAL CONVICTIONS. For purposes of this chapter, a conviction for an offense to which this chapter applies is a final conviction, regardless of whether the sentence is probated.
[Sections 708.004-708.050 reserved for expansion]
SUBCHAPTER B. DRIVER'S LICENSE POINTS SURCHARGE
Sec. 708.051. NONAPPLICABILITY. This subchapter does not apply to:
(1) a conviction that became final before September 1, 2003; or
(2) an offense covered by Subchapter C.
Sec. 708.052. ASSIGNMENT OF POINTS FOR CERTAIN CONVICTIONS.
(a) The driver's license of a person accumulates a point under this subchapter as of the date the department records a conviction of the person under Section 521.042 or other applicable law.
(b) For each conviction arising out of a separate transaction, the department shall assign points to a person's license as follows:
(1) two points for a moving violation of the traffic law of this state or another state that is not described by Subdivision (2); and
(2) three points for a moving violation of the traffic law of this state, another state, or a political subdivision of this or another state that resulted in an accident.
(c) The department by rule shall designate the offenses that constitute a moving violation of the traffic law under this section.
(d) Notwithstanding Subsection (b), the department may not assign points to a person's driver's license if the offense of which the person was convicted is the offense of speeding and the person was at the time of the offense driving less than 10 percent faster than the posted speed
limit. This subsection does not apply to an offense committed in a school crossing zone as defined by Section
541.302.
(e) Notwithstanding Subsection (b), the department may not assign points to a person's license if the offense committed by the person was adjudicated under Article 45.051 or 45.0511, Code of Criminal Procedure.
Sec. 708.053. ANNUAL SURCHARGE FOR POINTS. Each year, the department shall assess a surcharge on the license of a person who has accumulated six or more points under this subchapter during the preceding 36-month period.
Sec. 708.054. AMOUNT OF POINTS SURCHARGE. The amount of a surcharge under this chapter is $100 for the first six points and $25 for each additional point.
Sec. 708.055. NOTICE OF ASSIGNMENT OF FIFTH POINT. The department shall notify the holder of a driver's license of the assignment of a fifth point on that license by first class mail sent to the person's most recent address as shown on the records of the department.
[Sections 708.056-708.100 reserved for expansion]
SUBCHAPTER C. SURCHARGES FOR CERTAIN CONVICTIONS AND LICENSE SUSPENSIONS
Sec. 708.101. NONAPPLICABILITY. This subchapter does not apply to a conviction that became final before September 1, 2003.
Sec. 708.102. SURCHARGE FOR CONVICTION OF CERTAIN INTOXICATED DRIVER OFFENSES.
(a) In this section, "offense relating to the operating of a motor vehicle while intoxicated" has the meaning assigned by Section 49.09, Penal Code.
(b) Each year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.
(c) The amount of a surcharge under this section is $1,000 per year, except that the amount of the surcharge is:
(1) $1,500 per year for a second or subsequent conviction within a 36-month period; and
(2) $2,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.16 or more at the time the analysis was performed.
(d) A surcharge under this section for the same conviction may not be assessed in more than three years.
Sec. 708.103. SURCHARGE FOR CONVICTION OF DRIVING WHILE LICENSE INVALID OR WITHOUT FINANCIAL RESPONSIBILITY.
(a) Each year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been convicted of an offense under Section 521.457, 601.191, or 601.371.
(b) The amount of a surcharge under this section is $250 per year.
Sec. 708.104. SURCHARGE FOR CONVICTION OF DRIVING WITHOUT VALID LICENSE.
(a) Each year the department shall assess a surcharge on the license of a person who during the preceding 36-month period has been convicted of an offense under Section 521.021.
(b) The amount of a surcharge under this section is $100 per year.
(c) A surcharge under this section for the same conviction may not be assessed in more than three years.
[Sections 708.105-708.150 reserved for expansion]
SUBCHAPTER D. COLLECTION OF SURCHARGES
Sec. 708.151. NOTICE OF SURCHARGE. The department shall notify the holder of a driver's license of the assessment of a surcharge on that license by first class mail sent to the person's most recent address as shown on the records of the department. The notice must specify the date by which the surcharge must be paid and state the consequences of a
failure to pay the surcharge.
Sec. 708.152. FAILURE TO PAY SURCHARGE.
(a) If before the 30th day after the date the department sends a notice under Section 708.151 the person fails to pay the amount of a surcharge on the person's license or fails to enter into an installment payment agreement with the department, the license of the person is automatically suspended.
(b) A license suspended under this section remains suspended until the person pays the amount of the surcharge and any related costs.
Sec. 708.153. INSTALLMENT PAYMENT OF SURCHARGE.
(a) The department by rule shall provide for the payment of a surcharge in installments.
(b) A rule under this section:
(1) may not permit a person to pay a surcharge:
(A) of less than $2,300 over a period of more than 12 consecutive months; or
(B) of $2,300 or more over a period of more than 24 consecutive months; and
(2) may provide that if the person fails to make a required installment payment, the department may declare the amount of the unpaid surcharge immediately due and payable.
Sec. 708.154. CREDIT CARD PAYMENT OF SURCHARGE.
(a) The department by rule may authorize the payment of a surcharge by use of a credit card. The rules shall require the person to pay all costs incurred by the department in connection with the acceptance of the credit card.
(b) If a surcharge or a related cost is paid by credit card and the amount is subsequently reversed by the issuer of the credit card, the license of the person is automatically suspended.
c) A license suspended under this section remains suspended until the person pays the amount of the surcharge and any related costs.
Sec. 708.155. CONTRACTS FOR COLLECTION OF SURCHARGES.
The department may enter into a contract with a private attorney or a public or private vendor for the provision of services for the collection of surcharges receivable under this chapter. The total amount of compensation may not
exceed the amount set in Article 103.0031, Code of Criminal Procedure.
Sec. 708.156. REMITTANCE OF SURCHARGES COLLECTED TO COMPTROLLER.
Each surcharge collected by the department under this chapter shall be remitted to the comptroller as required by Section 780.002, Health and Safety Code.
OTHER NEW LEGISLATION AFFECTING DWI DEFENSE IN TEXAS
Breath/Blood Tests for Serious Bodily Injury.
(Transp. Code §724.012)
A peace officer shall require the taking of a specimen of the person's breath or blood if there is a DWI arrest, accident and reasonable belief that that "any individual has died or will die, or an individual other than the person has suffered serious bodily injury," and the person refuses voluntary draw. (HB292)
Driving While Intoxicated with Child Passenger.
(Penal Code §49.045)
A person commits DWI w/child, a State Jail Felony "if vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age." (SB45)
Warrantless arrests for all DWI offenses within presence or view but outside jurisdiction. (14.03)
"A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer's presence or view, if the offense is a felony, a violation of [Title 9,] Chapter 42 or 49, Penal Code, or a breach of the peace [, or an offense under
Section 49.02, Penal Code]." (SB840)
Intoxication Assault and Homicide
“Individual” means a human being who [has been born and] is alive, including an unborn child at every stage of gestation from fertilization until birth for purposes of prosecution of homicide, assault and intoxication assault and manslaughter.
“Death” includes, for a person who is an unborn child, the failure to be born alive. Homicide and assault statutes do not apply if “the conduct charged is conduct committed by the mother of the unborn child...” Intoxication assault and intoxication manslaughter statutes do not apply “to injury to or the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child.” (49.12) (HB 319).
Commercial Driver's Licenses
"Serious traffic violation" now includes violation of Section 522.042 (driving without certain commercial endorsements). Transp. Code §522.003(25).
Commercial drivers lose their license for a year for first DWI conviction, having alcohol concentration of 0.04 or more, or that a controlled substance or drug was present in the person's body, while operating a commercial motor vehicle in a public place; or having alcohol concentration of 0.08 or more while operating a motor vehicle, other than a commercial motor vehicle, in a public place; or leaving the scene of an accident, or using any vehicle in
commission of a felony. License suspension is three years if the person was transporting hazardous materials.
Transp. Code §522.081.
A person is disqualified from driving a commercial motor vehicle for life if the person in two separate incidents refuses breath test or has an illegal blood alcohol concentration.
This article takes effect June 1, 2005 and applies only to conduct that is engaged in or to an offense that is committed on or after this date. (HB3588)
Additional $30 Court Costs for traffic offenses to go to state fund.
Failure to Report a Felony (Penal Code §38.171)
A person commits an offense if the person observes the commission of a felony under circumstances in which a reasonable person would believe that an offense had been committed in which serious bodily injury or death may have resulted, but fails to immediately report the commission of the offense to a peace officer or law enforcement agency under circumstances in which a reasonable person would believe that the commission of the offense had not been reported, and the person could immediately report the commission of the offense without placing himself or herself in danger of suffering serious bodily injury or death. Failure to report is a Class A misdemeanor. (HB325)
Expunctions and "Orders of Nondisclosure" for Deferred Adjudications
Those who received a discharge and dismissal under 42.12 §5(c)(deferred adjudications) may "in the best interests of justice" obtain an "order of nondisclosure" ($28 fee to clerk for state fund) if the person gets nothing more than
fine-only traffic offenses for 5 years after the dismissal of misdemeanors under chapters 20-22, 25, 42 or 46, and 10 years after the dismissal (for felonies). For all other misdemeanors, the person may seek an order immediately
after dismissal. Persons cannot seek such orders for sex offenses, murder, offenses for family violence, stalking, injury to child (22.04), child endangerment (22.041), protective order violation (25.07). (Gov't Code §411.081).
Clerk sends order of nondisclosure to DPS Crime Records Service. DPS sends copies of the order to "all law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional
facilities, central state depositories of criminal
records, and other officials or agencies or other entities of this state or of any political subdivision of this state, and to all central federal depositories of criminal records that there is reason to believe have criminal history record information that is the subject of the order."
Information is excepted from the requirements of the Public Information Act (Gov't Code §552.021) if an order of nondisclosure with respect to the information has been issued.
A person who is the subject of information that is excepted from the requirements of the Public Information Act (Gov't Code §552.021) may deny the occurrence of the arrest and prosecution to which the information relates "unless
the information is being used against the person in a subsequent criminal proceeding."
Private entities that compile and disseminate for compensation criminal history record information may not do so with respect to which an order of nondisclosure has been issued. A district court may issue a warning to a private
entity for a first violation, but faces a civil penalty not to exceed $500 for each subsequent violation. The AG or prosecutor may sue to collect. (SB1477)
Expunctions
Those who have been "placed under a custodial or noncustodial arrest" are entitled to an expunction. Expunctions for acquittals is limited to district
courts and the defendant's attorney must prepare the order of expunction. (HB171) Records can be destroyed between 60 days after the date of the expunction order and the anniversary of the expunction order. Clerks must give notice to prosecutors within 30 days of records destruction. (HB2725) Victims of misused identity entitled to expunctions. (SB566)
Negligent Sales. (Al.Bev. Code §101.63(a))
The culpable mental state for sale to an alcoholic beverage to "an habitual drunkard or an intoxicated or insane person" is reduced to criminal negligence. (HB1114)
Performing Surgery While Intoxicated.
(Occ. Code §165.1535)
Not only must the doctor be intoxicated, but must also place the patient "at a substantial and unjustifiable risk of harm." It is a state jail felony and "emergency" is an affirmative defense.
"Drag racing" (now a class B misdemeanor)
It is a class A if the person has a prior drag racing conviction, was intoxicated, or had an open container. It
is a state jail if the person has been convicted twice; a felony of the third degree if it is shown on the trial of the offense that as a result of the offense, an individual suffered bodily injury; a felony of the second degree if
it is shown on the trial of the offense that as a result of the offense, an individual suffered serious bodily injury or death.
One-year license suspension (but remains eligible to receive an occupational license); must perform at least 10 hours of CSR. If he completes CSR before the end of the person's license suspension, the person may apply to the department for reinstatement of the person's license or the issuance of a new license. (HB1326)
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