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