Changes to Driving While Intoxicated Enforcement

One of the Bills proposed were the changes to the driving while intoxicated proposition. Senate Bill 328 brought forth numerous changes to the Transportation Code, Alcoholic Beverage Code, and the Code of Criminal Procedure as far as intoxication offenses go. The Bill projected three radical changes, which include: (i) the expansion of police power for mandatory, warrantless blood tests; (ii) authorization of any licensed magistrate to issue blood warrants; and (iii) immunizations for health care professionals who draw blood. Adding to the controversy of deciding how far police power can be extended, the notorious ideas brought forth the expansion of scenarios in which police power/law enforcement can draw a warrantless blood sample for the mere reason of driving while intoxicated. S.B. 328 modified Section 724.017 of the Transportation Code to expand the idea of forced blood drawn if a person is arrested for an offense under Chapter 49 of the Penal Code involving the operation of a motor vehicle or watercraft, if the person refuses the officer’s demand to willingly submit a blood examination, if an individual other than the person arrested had bodily injury involved and had to be hospitalized for medical treatment, the person is under arrest for DWI and has a child passenger present under the age of 15 years, or the officer had proven facts that a DWI has occurred as a second or third offense (with a passenger under the age of 15, intoxication assault, or intoxication manslaughter). With any of these crimes proposed the use of blood samples would be used.

Across the globe, the number of DWI suspects refusing the breath or blood examinations grows at a steady rate resulting in many jurisdictions to push the idea of, “No Refusal Weekends” in which law enforcement can obtain search warrants to conduct random blood tests of suspects that refuse to submit voluntarily. The heavy result of S.B. 328 amended Article 18.01, Code of Criminal Procedure which stated that any magistrate who is a licensed attorney in Texas has the power to issue a warrant for a blood test in an intoxication-related case only, if the person solely refuses to submit to a required examination involving breath test and/or blood samples. This matter draws a dispute amongst the Health Care profession in which the legal responsibility grows and the Hippocratic Oath could possibly be violated. In regards to the bill, some professionals have gone as far as to refuse blood tests even with court orders involved. The bill provides that the taking of a specimen from a person who objects or resists doe, not in itself constitute negligence, however, this does not translate to immunity from liability for negligence in taking a blood specimen.

House Bill 2730 made some minor changes to the Administrative License Revocation (ALR) hearings and to driver’s license surcharges. The bill requires amnesty on DPS surcharges for the indigent. Specifically, it allows the DPS to impose surcharges on drivers with multiple traffic violations or those with convictions of intoxication-related offenses. If such a person who is convicted, fails to pay the surcharge, this will result in license suspension. An estimate shows that 6 percent of Texas drivers owe a fee (surcharge) which most go unpaid. There are limitations to this proposal though, H.B. 2730 amended section 708.158 of the Transportation Code to affirm that DPS will waive all driver’s license fees that concur to a person who is indigent. Along with this, DPS cannot suspend an individual’s driver’s license for more than 105 days from the date of assessment of a surcharge. The individual is entitled to three notices before a suspension takes place.


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