The Prosecutor, September-October 2015, Volume 45, No. 5

Legislative changes to the occupational driver’s license statutes

2015

Big changes are afoot when it comes to impaired drivers who want to be out on the roads again.

The Texas Legislature finally figured out what every misdemeanor prosecutor gets in his first few days on the job: Suspending someone’s driver’s license does not keep him from driving.
    Being able to move across the big distances this state is so famous for has always been an issue. (Heck, there was a time that stealing a horse in Texas carried the death penalty.) And the “one size fits all” driver’s license suspension tool met some real challenges here—but it was the only tool we prosecutors had for a long time.
    But not anymore. In the 84th Regular Session, the Legislature passed House Bill 2246, which makes sweeping changes to how impaired drivers can stay on the road. While HB 2246 does not end automatic license revocation (ALR), essential need licenses, or Driving with License Invalid offenses, it does add a lot more sanity to the complicated system of license suspensions in impaired driving cases.

What changed
The act begins in Code of Criminal Procedure Art. 42.12, §13, which deals with impaired driving offense probation. That section was amended with a subsection (c) that grants probationers whose driver’s licenses have been suspended the right to drive if: 1) they install ignition interlock, and then 2) obtain an “occupational driver’s license with an ignition interlock designation” under the Transportation Code. They can’t get that occupational license until they can prove they have already installed ignition interlock on all vehicles they own and operate. Smart and capable defense counsel will want to get this handled before or with the plea or sentencing.
    The act goes on to fix potential conflicts between CCP Art. 42.12 §13 and Penal Code §49.09(h), which deals with mandatory ignition interlock for repeat offenders, by clearing up that §49.09(h) controls over all of Art. 42.12, §13.
    Perhaps most importantly, the act fixes lots of head-scratching issues in the occupational license laws. Transportation Code §§521.242(a) and 521.243(a) were amended to make it clear that the occupational driver’s license provisions in those sections apply to all Chapter 49 DWI offenses (including DWI with a Child and flying, boating, and setting up carnival rides while intoxicated), and not just the jumble that appeared in the statute before.
    No longer must the defendant show a need for the occupational license, nor must the judge find such a need, nor must the court limit the driving to certain events or times or require driving diaries and all the other crap we have cobbled together over the years. All that incessant arguing about the defendant’s unique work hours and unfathomable work responsibilities are gone. To get the occupational license a defendant needs two things, and only two things: First, he must have evidence of financial responsibility; second, he must prove he has already had an ignition interlock device installed on “each motor vehicle owned or operated” by the petitioner. Yes, he must show that he already did it, not that he swears, promises, and affirms that he will. Judges and prosecutors no longer have to trust that “the check is in the mail” on installing the interlock.
    The act goes on to radically amend §521.246 of the Transportation Code concerning requiring ignition interlock as part of the occupational license. Gone is the language that the court “may” require ignition interlock. Now the court simply “shall” order ignition interlock—the order must state that the driver can’t operate a vehicle without interlock. Gone is the court’s ability to require it during only half of the suspension period—now the order is for the whole duration of the suspension period. The act also amends §521.248 of the Transportation Code to make it clear that the only restriction on driving is having that ignition interlock on the vehicle—all time, reason, and location limitations are prohibited. (The limitations still exist for suspensions not connected to impaired driving convictions.)
    Did you ever think that requiring the driver to carry around and show the occupational license order to an officer who had to somehow make sense of it was kinda stupid and fraught with danger? Well, me too—and now that requirement is gone. The act amends §521.2465 of the Transportation Code to have the driver’s license conspicuously show that the person’s right to drive is limited to vehicles with ignition interlock. The driver gets his old, unrestricted license back when he reapplies for it and shows the suspension is over. This is a great tool for officers making stops.
    Finally, the act amends §521.248 of the Transportation Code to require the court to revoke the occupational license of any person who “fails to maintain an installed ignition interlock device on each motor vehicle operated by the person.” Now how the court finds out that someone failed to maintain an interlock is still a little vague. But obviously pursuant to that, the amendment goes on to prohibit a non-court of record from order the driver to be supervised by community supervision. But for those defendants being supervised in the criminal case, there is a chance to police compliance.

What did not change
Two helpful provisions remain unchanged. Section 521.2461 of the Transportation Code still allows the court to order the driver to have alcohol or drug testing done. Even more importantly, if the holder of an occupational license violates the terms of that license—yes, that means driving a car without an interlock—§521.253 of the Transportation Code makes that violation a Class B misdemeanor. To actually enforce this life-saving restriction, prosecutors will need to actively coordinate the efforts of local police, probation departments, and courts.
    It will probably distress victims in intoxication manslaughter and intox assault cases to hear that their defendant still gets to drive, but let’s be honest:  The defendant was already driving. Now at least he can do it legally. We will also need to be able to tell victims and their families that we are keeping track of that defendant and his interlock device, but first we need to make sure we are keeping track.

Final thoughts
My final advice is to read the law and talk to the other players. These new measures simplify the work of prosecutors, defense counsel, defendants, probation officers, courts, and police. Talk with local ignition interlock providers and make sure you can be notified somehow if the defendant quits complying. Heck, make sure you can be notified if the defendant keeps trying to start the car with too high a blood-alcohol concentration.
    While future tweaking is certainly inevitable, this new law is a good start in the proper direction—but like any new legislative tool, it will work only if we make it work.