To read the language of the new law, click the following link: http://www.capitol.state.tx.us/tlodocs/82R/billtext/html/HB01199F.htm
House Bill 1199 became effective on September 1st, 2011, and will enhance the current penalties currently imposed for some DWI charges. This new law emphasizes even more why someone should refuse to submit to a chemical test. Most DWI Defense attorneys that I've heard personally speak about the law think this is a very illogical piece of legislation that will create more confusion than it will answers.
The new law enhances 1st-time charges of DWI to Class A Misdemeanors (before this every DWI-1st was classified as Class B Misdemeanors), if it is shown at trial that the suspect had a BAC chemical test result greater than a .15 at the "time of the test." A DWI-1st is currently charged as a class B Misdemeanor, which carries a maximum punishment of of 180-days in jail and a fine of $2000. Under this new law, however, if you are charged with a DWI-1st, and it is shown that your BAC was a .15 or greater at the time of the chemical test, the charge will be enhanced to a class A misdemeanor, which carries a maximum punishment of up to 1-year in jail and a maximum fine up to $4000.
Something that is peculiar about this new law is the distinction between intoxication levels at the time of driving, and at the time the specimen is analyzed. The most troubling issue with this law is the language "at the time of test." In effect, a jury could conclude that a driver had a BAC of above a .08 at the time of driving, but below a .15 at the time of the test (even if a chemical result states otherwise). In this scenario, the jury would have to find the defendant "Not Guilty" if the only thing to be decided was whether the driver had a BAC above a .15 "at the time of the test." It will be interesting to see whether it will be put into jury charge instructions at trial where there is a chemical result higher than a .15, a "lesser-included" offense for a Class B misdemeanor DWI if the jury does not believe the defendant was above this new "at the time of the test" limit, but above a .08 at the time of driving.
Basically, what would happen if the jury believes the defendant had above a .08 BAC at the time the test was given, but lower than a .15 (even WITH a chemical test of a .15 or higher)? If the Class A misdemeanor is the only criminal offense on the jury charge, the jury would have to find the defendant "Not Guilty" for everything. Hence, surely there will be language allowing a jury to find a defendant "Guilty" of the normal Class B Misdemeanor DWI, but "Not Guilty" of being above a .15 "at the time of the test."
Also now an intoxication assault charge will be filed as a 2nd-degree felony if the driver caused "serious bodily injury to another in the nature of a traumatic brain injury that results in a persistent vegetative state."
Based on all of these factors, this gives even more a reason for a driver to exercise their constitutional right and refuse to submit to the taking of any tests, either roadside or chemical. This new law even provides more of a disincentive to submit to a chemical test when arrested for DWI than it did before.