Frisco DWI Lawyer & Attorney Blog : Collin County DWI Lawyer & Attorney : Hunter Biederman : Texas DWI Defense : Serving Collin County, Denton County, Dallas County

Well, there's a new law in town, and the local police and District Attorneys are already pushing it hard. Its a DWI with a breath or blood alcohol level of .15 or more.

The amended text of Penal Code 49.04 reads:

(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0/15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.

So now if you were facing a regular DWI the punishment range was 72 hrs in jail - 180 days in jail, or a term of probation not to exceed 2 years.  The new DWI +.15 punishment range is 0 days in jail - 1 year in jail, and a term of probation not to exceed 2 years.

MADD pushed hard for this, and our legislators folded as usual.  But here's the funny part....

This new crime will decrease the amount of convictions, and decrease the punishment for offenders!

What???

Here's why -- first of all, no first time offenders go to jail on a DWI 1st.  Therefore, since the length of probation is the same, the underlying jail sentence doesn't change anything.  If someone were to go to jail on a DWI 1st, it most certainly wouldn't be for a length over 6 months anyway.  

Decrease In Punishment Step ONE

Less people would be inclined to provide a breath or blood test. This is the same effect that the surcharges have had on poeple arrested for DWI.  If you do not give a breath or blood test, you cannot be charged with this "higher" level crime -- so why do it?  Refuse, Refuse, Refuse ! !

Decrease in Punishment, Step TWO

This actually LOWERS the minimum sentence for DWI.  Before, the minimum was 72 hrs in jail up to 180 days.  With this new law, the range is 0 days in jail, up to 1 year in jail.  Therefore, a prosecutor can give a $1 fine, and 0 days in jail. 

So there you go.  The new "tougher" crime effectively lowers the punishment range and decreases the chances of a conviction for the state.  Congratulations MADD.  You win again.

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It seems as if the Federal Government is now getting into the mix of deciding what the individual states should and should not be allowed to do to punish first time DWI / DUI offenders.

Today, an article in the USA today explained that the Federal Government has a pending bill that would tie in government funding for roads to the conditions of probation on a  DWI first.  According to the article, if States do not make Ignition Interlock devices a requirement as a condition of probation for DWI 1st. 

I've always heard that this is how the Government got Louisiana to up their drinking age to 21 . . by tying road funding to it.  But I don't know if that is true. 

So if this passed, what would this mean for DWI first offenders?  In my opinion, this just gives everyone even MORE of a reason to fight and go to trial.  If the only way to keep people from losing their jobs by keeping this device off, then a trial by jury is the only way to go.  We have had so many people tell us that they would lose their jobs if they have one of these installed.  Realtors, those in sales,  or any business people that have clients in their car.  What about a mom who does carpool, and the other children see mom blowing into a device to start the car?

Yet another not well thought out plan spearheaded by our friends at MADD.

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A new bill proposed in the Senate by Senator Whitmire seems to be the same as that of HB 1906.

The bill deals with lowering the surcharge for someone who successfully completes the DWI/Drug Court program.  As I stated before, this only  helps someone that completes the course, which can be 2 years or more later.  This means that the bill does not really save the person much.  It would be a better bill if the savings were upon entering the DWI court program.  I would even be in support if those savings were only temporary and became permanent after successful completion.  I think that would be a better idea.

 

Below is the text of the entire bill:

 

A BILL TO BE ENTITLED

AN ACT

relating to the amount of a surcharge assessed on conviction of certain intoxicated driver offenses on the driver's license of certain persons who complete a drug court program.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  Chapter 469, Health and Safety Code, is amended by adding Section 469.010 to read as follows:

Sec. 469.010.  REDUCTION IN AMOUNT OF ANNUAL SURCHARGE ON SUCCESSFUL COMPLETION OF DRUG COURT PROGRAM. (a) A judge or magistrate administering a drug court program under this chapter may order the Department of Public Safety to reduce the amount of the annual surcharge assessed under Section 708.102, Transportation Code, on the license of a person finally convicted of an offense relating to the operating of a motor vehicle while intoxicated to an amount that may not be less than 20 percent of the amount specified by that section, if the judge or magistrate enters a written finding in the papers in the case indicating that the person:

(1)  successfully completed a drug court program under this chapter; and

(2)  has not been arrested for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code, during the 180 days after the date of the program completion.

(b)  On a timely request by the defendant, the judge or magistrate shall enter the written findings under Subsection (a) and promptly send a copy of those findings to the Department of Public Safety accompanied by the court's order to reduce the amount of the annual surcharge assessed under Section 708.102, Transportation Code. On receipt of a copy of the written findings under this subsection, the Department of Public Safety shall reduce the amount of the surcharge assessed to the amount specified in the court's order.

SECTION 2.  The change in law made by this Act applies to a person who, on or after the effective date of this Act, enters a drug court program under Chapter 469, Health and Safety Code, regardless of whether the person committed the offense for which the person enters the program before, on, or after the effective date of this Act.

SECTION 3.  This Act takes effect September 1, 2009.

 

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A new House Bill proposed by Representative Coleman affects the surcharges assessed on those convicted of DWI.  Right now, if you are convicted of DWI first, you owe the state $3,000 over 3 years just to keep your driving privledges.

The bill seems to say that the 3,000 is now a maximum surcharge, instead of it being the automatic surcharge.  It would be based now on the "seriousness of the charge, the amount necessary to deter future violations, and an amount that maximizes collection."

I like the idea of this, except it doesnt seem to really say who determines how much the amount is, and why!  Nor does it seem to give you any kind of due process, like a hearing to present to a judge or magistrate why you think your surcharge should be less.  Basically it seems like a proposal with no teeth.

The bill also makes some changes to the plea bargaining process. It provides that anyone pleaing guilty must be given notice about the surcharge.  I like this idea, but it is mostly for people who are hiring non-DWI lawyers.  Any DWI lawyer worth their salt is going to be informing their clients about the surcharge.  At our firm, we speak about it during the initial consultation along with paperwork about the potential surcharge.  And in any plea of guilty or not guilty, we ALWAYS discuss the ramifications of the potential surcharge.

Below is the entire text of the bill:

A BILL TO BE ENTITLED

AN ACT

relating to the administration of the driver responsibility program.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  Subchapter A, Chapter 708, Transportation Code, is amended by adding Section 708.004 to read as follows:

Sec. 708.004.  DEPARTMENT'S DETERMINATION OF AMOUNT OF SURCHARGE. The department by rule shall set the amount of a surcharge to be assessed under this chapter on a person's license. The amount may not exceed the maximum amount allowed by this chapter for a surcharge based on points or a conviction, as applicable. The amount shall be based on:

(1)  the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(2)  the amount necessary to deter a future violation; and

(3)  the amount that maximizes the collection of surcharges by the department.

SECTION 2.  Section 708.054, Transportation Code, is amended to read as follows:

Sec. 708.054.  AMOUNT OF POINTS SURCHARGE.  The amount of a surcharge under this chapter may not exceed [is] $100 for the first six points and may not exceed $25 for each additional point.

SECTION 3.  Section 708.102(c), Transportation Code, is amended to read as follows:

(c)  The amount of a surcharge under this section may not exceed [is] $1,000 per year, except that the amount of the surcharge may not exceed [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.

SECTION 4.  Section 708.103(b), Transportation Code, is amended to read as follows:

(b)  The amount of a surcharge under this section may not exceed [is] $250 per year.

SECTION 5.  Section 708.104(b), Transportation Code, is amended to read as follows:

(b)  The amount of a surcharge under this section may not exceed [is] $100 per year.

SECTION 6.  Section 708.105, Transportation Code, is amended by adding Subsections (c) and (d) to read as follows:

(c)  Before accepting a plea other than a plea under Article 27.14(d), Code of Criminal Procedure, the court must provide a defendant charged with an offense described by Section 708.102, 708.103, or 708.104 the following statement and require the defendant to sign the statement:

"A conviction for the offense charged will result in the assessment of a surcharge that will be imposed annually for a period of 36 months under the Driver Responsibility Program."

(d)  The statement provided to a defendant under Subsection (c) must also state the maximum amount of the annual surcharge as provided by Section 708.102, 708.103, or 708.104. The copy of the statement signed by the defendant shall be retained by the court.

SECTION 7.  Section 708.157, Transportation Code, is amended by amending Subsection (c) and adding Subsection (d) to read as follows:

(c)  The department by rule shall [may] establish an indigency program to reduce the surcharge on a person's license if the department determines that the person is indigent [for holders of a driver's license on which a surcharge has been assessed for certain offenses, as determined by the department]. The department shall require a person to submit proof of indigency.

(d)  For purposes of this section, a person is indigent if the person's income is not more than 100 percent of the applicable income level established by the federal poverty guidelines.

SECTION 8.  (a) Not later than October 1, 2010, the Department of Public Safety shall adopt initial rules determining the amount of a surcharge on a person's driver's license under Chapter 708, Transportation Code, as amended by this Act. Not later than October 1 of each subsequent year, the Department of Public Safety shall review its rules and determine whether the amount of a surcharge should be increased or decreased.

(b)  A surcharge imposed under Chapter 708, Transportation Code, before the effective date of the initial rules adopted by the Department of Public Safety under Subsection (a) of this section is governed by that chapter as it existed on the date the surcharge was imposed, and the former law is continued in effect for that purpose.

SECTION 9.  This Act takes effect September 1, 2009.

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A third new DWI bill proposed by Representative Guillen deals with the DWI surcharge for those convicted of DWI, but completed the DWI/Drug Court program.  I have spoken about the DWI/Drug Court program in the past.  In Collin County, the only DWI /Drug Court is in Judge Ray Wheless' County Court #4.

This bill would allow the surcharge to be reduced by up to 80%.  Right now, anyone convicted of DWI 1st must pay 3,000 to the state over three years.  If you are convicted of DWI 2nd, it is 4,500 over 3 years, and if you blow over .16, it is $6,000 over three years.

I think this bill is a great idea, because it gives some incentives for someone to really turn their lives around.  The Drug court is usually reserved for those on DWI 2nd, so it is an important time in those offenders' lives.

I do see some problems with this bill, though.  It only rewards those "sucessfully completing" the program.  Instead, it should reward those entering the program.  It is possible to be in the DWI court for 2  years or longer.  By then, this bill wouldn't be of much help.  

Below is the entire test of the bill:

A BILL TO BE ENTITLED

AN ACT

relating to the amount of a surcharge assessed on conviction of certain intoxicated driver offenses on the driver's license of certain persons who complete a drug court program.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  Chapter 469, Health and Safety Code, is amended by adding Section 469.010 to read as follows:

Sec. 469.010.  REDUCTION IN AMOUNT OF ANNUAL SURCHARGE ON SUCCESSFUL COMPLETION OF DRUG COURT PROGRAM. (a) A judge or magistrate administering a drug court program under this chapter may order the Department of Public Safety to reduce the amount of the annual surcharge assessed under Section 708.102, Transportation Code, on the license of a person finally convicted of an offense relating to the operating of a motor vehicle while intoxicated to an amount that may not be less than 20 percent of the amount specified by that section, if the judge or magistrate enters a written finding in the papers in the case indicating that the person:

(1)  successfully completed a drug court program under this chapter; and

(2)  has not been arrested for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code, during the 180 days after the date of the program completion.

(b)  On a timely request by the defendant, the judge or magistrate shall enter the written findings under Subsection (a) and promptly send a copy of those findings to the Department of Public Safety accompanied by the court's order to reduce the amount of the annual surcharge assessed under Section 708.102, Transportation Code. On receipt of a copy of the written findings under this subsection, the Department of Public Safety shall reduce the amount of the surcharge assessed to the amount specified in the court's order.

SECTION 2.  The change in law made by this Act applies to a person who, on or after the effective date of this Act, enters a drug court program under Chapter 469, Health and Safety Code, regardless of whether the person committed the offense for which the person enters the program before, on, or after the effective date of this Act.

SECTION 3.  This Act takes effect September 1, 2009.

 

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The second bill relating to DWI Defense has been proposed by Representative Dutton.  I think it is a fantastic idea.

The crux of the bill changes Sec 42.12, which is the community supervision (probation) section of the code.  Right now, there are certain crimes that if convicted and placed on probation, you are not allowed early release off.  They are mostly major aggravated crimes involving weapons or sex offenses.  The worst of the worst.  But strangely enough, DWI was added to it.  This means if you get 2 years probation, you cannot get off early.

Not being able to get off probation early ties the hands of the judges and the prosecutors for people who have been sucessful on probation.  It takes away a lot of discretion for those in the know, that are put in their positions by the people that elect them.  This bill would remove the "DWI restriction" and allow somone on DWI probation to be released early.  It doesn't make any other changes, such as making it not a final conviction, or removing from their record -- simply letting them get off probation early.  Judges/Prosecutors usually only allow this if you have already completed all the terms and condtions of probation (commuity service, DWI classes, etc.).

Below is the entire text of the bill:

 

A BILL TO BE ENTITLED

AN ACT

relating to the reduction or termination of the period of community supervision imposed on a defendant convicted of certain intoxication offenses.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  Section 20(b), Article 42.12, Code of Criminal Procedure, is amended to read as follows:

(b)  This section does not apply to:

(1)  a defendant convicted of an offense [under Sections 49.04-49.08, Penal Code, a defendant convicted of an offense] for which on conviction registration as a sex offender is required under Chapter 62; [,] or

(2)  a defendant convicted of a felony described by Section 3g.

SECTION 2.  The change in law made by this Act applies to a defendant who is placed on community supervision before, on, or after the effective date of this Act.

SECTION 3.  This Act takes effect September 1, 2009.

 

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I noticed that in the past few days, a few new DWI bills have been proposed.  I found 5 imparticular that may be of consequence to the DWI defense world.

The first, proposed by Texas Rep Riddle.  From what I can see, it related to who can pull blood from a person suspeced of DWI.  It amends the transportation code, which already has a list of "approved" people to pull blood.  This bill seems to add in an EMT or paramedic.  EMT's and paramedics were specifically excluded from those allowed to pull blood from suspects.

Below is the entire proposed text of the bill:

 

A BILL TO BE ENTITLED

AN ACT

relating to the persons authorized to draw a blood specimen from a vehicle operator to test for alcohol concentration or other intoxicating substances.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  Section 724.017, Transportation Code, is amended to read as follows:

Sec. 724.017.  TAKING OF BLOOD SPECIMEN. (a) Only the following [a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse] may take a blood specimen at the request or order of a peace officer under this chapter:

(1)  a physician;

(2)  a qualified technician;

(3)  a registered professional nurse;

(4)  a licensed vocational nurse; or

(5)  a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic.

(b)  A [The] blood specimen must be taken according to recognized medical procedures [in a sanitary place].

[(b)]  The person who takes a [the] blood specimen under this chapter, or a [the] hospital where a [the] blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter 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.

[(c) In this section, "qualified technician" does not include emergency medical services personnel.]

SECTION 2.  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.

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Thanks to Robert Guest for pointing out to me that I was mentioned on Dallas/Ft Worth's 1310 the Ticket.  They pulled up this blog, and the entry HERE.

Apparently, they show's Gordon Keith was talking about Charles Barkley's recent DUI arrest.  They were examining the difference between DUI and DWI.  

However, I think the information from my site probably is not what they were looking for.  My site lists the difference between DUI and DWI in Texas.  What they probably wanted to know is why Charles Barkley's offense was DUI.  The answer is simple.  Each state calls this crime something different.  Acutally, most states refer to the crim of driving while intoxicated / driving under the influcence as DUI.  It is the same thing, with slightly different laws from state to state.  So, what Barkley was charged with is our equivalent of DWI.

Hope this helps, and if anyone from The Ticket is reading this, let me know if I can ever answer any questions!

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Austin, TX DWI Lawyer Jamie Spencer recently posted about whether or not someone should "call out" of those arrested for DWI or other crimes on blogs.

He explains:

I don’t blog about so-and-so got arrested for such-and-such. It’s
-Not my style
-Seems like making fun of people in the same situation as my clients
-Not usually relevant to my ‘niche’
-Overdone by the cut-and-paste bloggers
-Not a case I think I know anything about, since all my info about it comes from the media
-There’s about a hundred more reasons I don’t ‘do’ that type of blogging.

I'd agree with him for the most part.  This was in response to my previous post, and others who constantly tell him "hey, you should blog about ________ being arrested!"

I don't normally report on people getting arrested.  I haven't once mentioned Lindsay, Brittany, Nicole, etc.  I felt this one was different for a few reasons.

1. It happened in Austin & my Collin County Readers wouldn't necessarily pick up on it.

2. I was actually kind of proud to be what I felt was the first to report on it.  At least on the blogs I normally read.  I hadn't read about it in any of the other usual suspects blogs. Posted 5/1 at 10:48pm.

3. I felt the importance of this one mainly because my understanding is that he championed the surcharge.  Also, one of the ridiculous things about the surcharge is that it doubles with a .16 reading.  That reason alone is a good one to refuse the test.

4. He decided to refuse a breath test.  I like to point out to my readers (as does several others bloggers), that Legislators, Judges, and Policeman.. when asked, all seem to refuse the breath test!

Anyway, there's my 2c on the issue.

Oh yeah, and as far as the PC affadavit you Jamie points out, I'd start with the question of

1) An officer reading a license plate exp. date at 10PM
2) I thought the expirations were on the front windshield?
(possible explanation - l/p has only 5 digits, starting with SO.  So I'm guessing this may be a special plate?)
3) Interesting how this ofc. can tell the difference between metabolized and non-metabolized alcohol.

And all the other usual garbage...

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Frisco is now voting on whether or not to allow longer alcohol serving hours for bars and restaurants.  The proposed (bill?) will allow restaurants and bars to serve until 2 AM, instead of the current Midnight.

I have been approached by many friends and colleagues about the possibility of Frisco having longer drinking hours.  The conversation usually starts, "wow, Hunter, this is something that will probably be great for your business, huh?"

So, here are my thoughts on the matter.

I don't think changing the law from midnight to 2AM is going to have any major horrible ramifications on the great City of Frisco.  Nor do I think that DWI arrests are going to skyrocket either.  (Remember, I'm commenting on my business going up... for that to happen, it is presumed there will be more arrests).  Nor do I think that alcohol related tragedies will go up.  Hey, I live here too.  If I thought it was a major danger that was going to occur, I'd be handing out fliers along side this group.



I got a ridiculous flier in the mail regarding the vote.  It is a group opposing the legislation.  It has a picture of 1) a beer+ 2) a clock = 3) Strippers and has the words "why risk it?"  The flier proclaims that if we allow alcohol sales to go two more hours, magically, a bunch of strip clubs will appear.  We will also have to have more police working longer hours......Hogwash.

Other cities have these hours and no strip clubs started opening up.  I'm pretty sure other cities are dry (or bring your own beer), and they have strip clubs.  Anyway, the entire flier was preposterous.  Ed Housewright of the Dallas Morning News recently wrote his opinions here. 

Honestly, in summary, I don't really care either way.  I don't think there is a vast negative effect that will occur.  I don't think there is a massive positive upside either.  Local businesses will probably profit, as will some of the hotels & service industries.  But either way, in answer to the questions I've been getting, I don't think my business is going to change much.

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In one of the most insane propositions I have ever seen, Lawrence Taylor reports on a bill going through the Senate in Tennessee.

The proponent of the bill wants to stop DUI (and DWI) lawyers from advertising their expertise because it is getting to hard to convict people accused of DUI.  Hmm.. so her solution is that they should not be able to get lawyers that specialize in the area?

Hey Senator, why not cut it off at the pass, and propose legislation not to allow people to have lawyers?  Or better yet, who needs jury trials anyway?

Lawrence pointed out another article where Senator XXXX explained her reasoning:  She "said she pushed for the amendment because she was tired of suspected DUI offenders not being convicted.”

Yes, people found not guilty of a crime?  How can that be?  Surely they must be guilty, right?  Those 6 idiot jurors were fooled!

Oh wait.. maybe there was another motive?  The article also explains that her move "brought criticism from her opponent who practices in DUI law"

Ahh.. politics at their best.

(P.S.  I didnt really want to put her name in here, because that might have been "advertising" that she didnt want.  But because her opponent Timothy Barnes, a Clarksville attorney, seems to support the First Amendment, I dont see the harm in mentioning him here.)

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§ 49.09. ENHANCED OFFENSES AND PENALTIES.

(a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05,
49.06, or 49.065 is a Class A misdemeanor, with a minimum term of
confinement of 30 days, if it is shown on the trial of the offense
that the person has previously been convicted one time of an offense
relating to the operating of a motor vehicle while intoxicated[0], an
offense of operating an aircraft while intoxicated[0], an offense of
operating a watercraft while intoxicated[0], or an offense of
operating or assembling an amusement ride while intoxicated[0].
(b) An offense under Section 49.04, 49.05, 49.06, or 49.065
is a felony of the third degree if it is shown on the trial of the
offense that the person has previously been convicted:
(1) one time of an offense under Section 49.08 or an
offense under the laws of another state if the offense contains
elements that are substantially similar to the elements of an
offense under Section 49.08; or
(2) two times of any other offense relating to the
operating of a motor vehicle while intoxicated[0], operating an
aircraft while intoxicated[0], operating a watercraft while
intoxicated[0], or operating or assembling an amusement ride while
intoxicated[0].
(c) For the purposes of this section:
(1) "Offense relating to the operating of a motor
vehicle while intoxicated[0]" means:
(A) an offense under Section 49.04 or 49.045;
(B) an offense under Section 49.07 or 49.08, if
the vehicle operated was a motor vehicle;
(C) an offense under Article 6701l-1, Revised
Statutes, as that law existed before September 1, 1994;
(D) an offense under Article 6701l-2, Revised
Statutes, as that law existed before January 1, 1984;
(E) an offense under Section 19.05(a)(2), as that
law existed before September 1, 1994, if the vehicle operated was a
motor vehicle; or
(F) an offense under the laws of another state
that prohibit the operation of a motor vehicle while intoxicated[0].
(2) "Offense of operating an aircraft while
intoxicated[0]" means:
(A) an offense under Section 49.05;
(B) an offense under Section 49.07 or 49.08, if
the vehicle operated was an aircraft;
(C) an offense under Section 1, Chapter 46, Acts
of the 58th Legislature, Regular Session, 1963 (Article 46f-3,
Vernon's Texas Civil Statutes), as that law existed before
September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that
law existed before September 1, 1994, if the vehicle operated was an
aircraft; or
(E) an offense under the laws of another state
that prohibit the operation of an aircraft while intoxicated[0].
(3) "Offense of operating a watercraft while
intoxicated[0]" means:
(A) an offense under Section 49.06;
(B) an offense under Section 49.07 or 49.08, if
the vehicle operated was a watercraft;
(C) an offense under Section 31.097, Parks and
Wildlife Code, as that law existed before September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that
law existed before September 1, 1994, if the vehicle operated was a
watercraft; or
(E) an offense under the laws of another state
that prohibit the operation of a watercraft while intoxicated[0].
(4) "Offense of operating or assembling an amusement
ride while intoxicated[0]" means:
(A) an offense under Section 49.065;
(B) an offense under Section 49.07 or 49.08, if
the offense involved the operation or assembly of an amusement
ride; or
(C) an offense under the law of another state
that prohibits the operation of an amusement ride while intoxicated[0]
or the assembly of a mobile amusement ride while intoxicated[0].
(d) For the purposes of this section, a conviction for an
offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07,
or 49.08 that occurs on or after September 1, 1994, is a final
conviction, whether the sentence for the conviction is imposed or
probated.
(e) Repealed by Acts 2005, 79th Leg., ch. 996, § 3.
(f) Repealed by Acts 2005, 79th Leg., ch. 996, § 3.
(g) A conviction may be used for purposes of enhancement
under this section or enhancement under Subchapter D, Chapter 12,
but not under both this section and Subchapter D.
(h) This subsection applies only to a person convicted of a
second or subsequent offense relating to the operating of a motor
vehicle while intoxicated[0] committed within five years of the date
on which the most recent preceding offense was committed. The court
shall enter an order that requires the defendant to have a device
installed, on each motor vehicle owned or operated by the
defendant, that uses a deep-lung breath analysis mechanism to make
impractical the operation of the motor vehicle if ethyl alcohol is
detected in the breath of the operator, and that requires that
before the first anniversary of the ending date of the period of
license suspension under Section 521.344, Transportation Code, the
defendant not operate any motor vehicle that is not equipped with
that device. The court shall require the defendant to obtain the
device at the defendant's own cost on or before that ending date,
require the defendant to provide evidence to the court on or before
that ending date that the device has been installed on each
appropriate vehicle, and order the device to remain installed on
each vehicle until the first anniversary of that ending date. If
the court determines the offender is unable to pay for the device,
the court may impose a reasonable payment schedule not to extend
beyond the first anniversary of the date of installation. The
Department of Public Safety shall approve devices for use under
this subsection. Section 521.247, Transportation Code, applies to
the approval of a device under this subsection and the consequences
of that approval. Failure to comply with an order entered under
this subsection is punishable by contempt. For the purpose of
enforcing this subsection, the court that enters an order under
this subsection retains jurisdiction over the defendant until the
date on which the device is no longer required to remain installed.
To the extent of a conflict between this subsection and Section
13(i), Article 42.12, Code of Criminal Procedure, this subsection
controls.

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§ 49.045. DRIVING WHILE INTOXICATED[0] WITH CHILD
PASSENGER.

(a) A person commits an offense if:

(1) the person is intoxicated[0] while operating a motor
vehicle in a public place; and

(2) the vehicle being operated by the person is
occupied by a passenger who is younger than 15 years of age.

(b) An offense under this section is a state jail felony.

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§ 49.04. DRIVING WHILE INTOXICATED. (a) A person commits
an offense if the person is intoxicated while operating a motor
vehicle in a public place.

(b) Except as provided by Subsection (c) and Section 49.09,
an offense under this section is a Class B misdemeanor, with a
minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this
section that at the time of the offense the person operating the
motor vehicle had an open container of alcohol in the person's
immediate possession, the offense is a Class B misdemeanor, with a
minimum term of confinement of six days.

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Penal Code - Chapter 49

(2) "Intoxicated" means:

(A) not having the normal use of mental or
physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, a combination of
two or more of those substances, or any other substance into the
body; or

(B) having an alcohol concentration of 0.08 or
more.

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