(A) For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ALCOHOLIC BEVERAGE. This term has the meaning assigned by Tex. Alcoholic Beverages Code § 1.04.
ALCOHOL CONCENTRATION. This term means:
(1) The number of grams of alcohol per 100 milliliters of blood;
(2) The number of grams of alcohol per 210 liters of breath; or
(3) The number of grams of alcohol per 67 milliliters of urine.
CONTROLLED SUBSTANCE. This term has the meaning assigned by Tex. Health and Safety Code § 481.002.
CONTROLLED SUBSTANCE ANALOGUE. This term has the meaning assigned by Tex. Health and Safety Code § 481.002.
DRUG. This term has the meaning assigned by Tex. Health and Safety Code § 481.002.
INTOXICATED. This term means:
(1) Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a controlled substance analogue, a drug, or a combination of two or more of those substances into the body; or
(2) Having an alcohol concentration of 0.10 or more.
SERIOUS BODILY INJURY. Injury that creates a substantial risk of death or that causes serious temporary or permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
(B) No person may operate a moving vessel or manipulate water skis, an aquaplane, or a similar device while the person is intoxicated. For the purpose of this section, a vessel does not include any device that is propelled solely by the current of the water. A person who violates this subsection commits an offense.
(C) Except as provided by divisions (D), (E), and (F) of this section, an offense under division (B) of this section is punishable by:
(1) A fine not less than $100 or more than $1000;
(2) Confinement in jail for a term not to exceed 180 days; or
(3) Both the fine and confinement in jail.
(D) If it is shown at the trial of a person that the person has previously been convicted once of an offense under division (B) of this section, the offense is punishable by:
(1) A fine of not less than $300 or more than $2,000;
(2) Confinement in jail for a term not to exceed one year; or
(3) Both the fine and confinement in jail.
(E) If it is shown at the trial of a person that the person has previously been convicted two or more times of an offense under division (B) of this section, the offense is punishable by:
(1) A fine of not less than $500 or more than $2,000; and
(2) Confinement in jail for a term of not less than 30 days or more than two years or imprisonment in the state penitentiary for a term of not less than 60 days or more than five years.
(F) A conviction under division (B) of this section may not be used for the purpose of enhancement under division (D) or (E) if:
(1) The conviction was for an offense committed more than five years before the offense for which the person is being tried was committed; and
(2) The person has not been convicted of an offense under division (B) committed within five years immediately preceding the date on which the offense for which the person is being tried was committed.
(G) If it is shown at the trial of a person punished for an offense under division (C), (D), or (E) of this section that the person committed the offense and as a direct result of the offense another person suffered serious bodily injury, the minimum term of confinement for the offense is increased by 60 days and the minimum and maximum fines for the offense are increased by $500.
(H) A person who operates a moving vessel or manipulates water skis, an aquaplane, or a similar device is deemed to have given consent, subject to this section, to the taking of one or more specimens of the person's breath or blood for the purpose of analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, controlled substance analogue, or drug if the person is arrested for any offense arising out of acts alleged to have been committed while the person was operating or in actual physical control of a moving vessel or manipulating water skis, an aquaplane, or a similar device while intoxicated. A person so arrested may consent to the giving of any other type of specimen to determine the person's alcohol concentration, but the person is not deemed, solely on the basis of the person's operation of a moving vessel or manipulating water skis, an aquaplane, or a similar device, to have given consent to give any specimen other than a specimen of the person's breath or blood. The specimen or specimens shall be taken at the request of a peace officer having probable cause to believe the person was operating or in actual physical control of a moving vessel or manipulating water skis, an aquaplane, or a similar device while intoxicated.
(I) When a person gives a specimen of blood at the request or order of a peace officer under this section, only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may withdraw a blood specimen for the purpose of determining the alcohol concentration or presence of a controlled substance, controlled substance analogue, or drug in the blood. The sample must be taken in a sanitary place inspected periodically by the county in which the sample is taken or in a physician's office or a hospital licensed by the Texas Department of Health. This limitation does not apply to the taking of specimens of breath, urine, or bodily substances other than blood. The person drawing the blood specimen at the request or order of a peace officer under this section or the hospital where that person is taken for the purpose of securing the blood specimen is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this section, if the blood specimen was withdrawn according to recognized medical procedures This division does not relieve a person from liability for negligence in withdrawing a blood specimen. Breath specimens taken at the request or order of a peace officer must be taken and analysis made under conditions prescribed by division (B), Section 3, Chapter 434, Acts of the 61st Legislature, Regular Session, 1969 , being Tex. Rev. Civ. Stat., Art. 6701l-5.
(J) A person who gives a specimen of breath, blood, urine, or other bodily substance under this section may, on request and within a reasonable time not to exceed two hours after the arrest, have a physician, qualified technician, chemist, or registered professional nurse of the person's own choosing draw a specimen and have an analysis made of the person's blood in addition to any specimen taken and analyzed at the direction of a peace officer. The failure or inability to obtain an additional specimen or analysis by a person does not preclude the admission of evidence relating to the analysis of the specimen taken at the direction of the peace officer under this section.
(K) On the request of a person who has given a specimen at the request of a peace officer, full information concerning the analytical results of the test or tests of the specimen shall be made available to the person or the person's attorney.
(L) If for any reason the person's request to have a chemical test is refused by the officer or any other person acting for or on behalf of the state, that fact may be introduced into evidence at the person's trial.
(M) If the person refuses a request by an officer to give a specimen of breath or blood, whether the refusal is express or the result of an intentional failure of the person to give the specimen, that fact may be introduced into evidence at the person's trial.
(N) Before requesting a person to give a specimen, the officer shall inform the person orally and in writing that if the person refuses to give the specimen that refusal may be admissible in a subsequent prosecution. The officer shall provide the person with a written statement containing this information. If the person refuses the request of the officer to give a specimen, the officer shall request the person to sign a statement that the officer requested that the person give a specimen, that the person was informed of the consequence of not giving a specimen, and that the person refused to give a specimen.
(O) Except as provided by division (Q) of this section, if a person under arrest refuses upon request of a peace officer to give a specimen designated by the peace officer as provided by division (H), a specimen may not be taken.
(P) A person who is dead, unconscious, or otherwise in a condition rendering the person incapable of refusal, whether the person is arrested or not, is deemed not to have withdrawn the consent provided by division (H) of this section. If the person is dead, a specimen may be withdrawn by the county medical examiner or the examiner's designated agent or, if there is no county medical examiner for the county, by a licensed funeral director or a person authorized as provided by division (I) of this section. If the person is not dead but is incapable of refusal, a specimen may be withdrawn by a person authorized as provided by division (I) of this section. Evidence of alcohol concentration or the presence of a controlled substance, controlled substance analogue, or drug obtained by an analysis authorized by this division is admissible in a civil or criminal action.
(Q) A peace officer shall require a person to give a specimen if:
(1) The officer arrests the person for an offense under Tex. Penal Code § 19.05(2)(a) or this section;
(2) The person is the operator of a vessel involved in an accident that the officer reasonably believes occurred as a result of the offense;
(3) At the time of the arrest the officer reasonably believes that a person has died or will die as a direct result of the accident; and
(4) The person refuses the officer's request to give a specimen voluntarily.
(Tex. Parks and Wildlife Code § 31.097) ('68 Code, § 17-58) (Ord. passed 8-11-64) Penalty, see § 98.999