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A bill to be entitled

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An act relating to driving or boating under the influence;

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providing a short title; amending s. 316.193, F.S.;

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revising the applicability of sanctions; requiring a

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specified period of imprisonment for a fourth or

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subsequent conviction of driving under the influence;

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prohibiting substitution of treatment alternatives in

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certain circumstances; requiring impoundment or

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immobilization of all vehicles owned by the defendant for

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a specified period; providing for dismissal of an

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impoundment order; requiring records of judgments of

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guilty to include fingerprints; amending s. 327.35, F.S.;

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revising the applicability of sanctions; requiring a

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specified period of imprisonment for a fourth or

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subsequent conviction of boating under the influence;

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prohibiting substitution of treatment alternatives in

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certain circumstances; requiring impoundment or

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immobilization of the vessel operated by or in the actual

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control of the defendant or any one vehicle registered in

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the defendant's name at the time of impoundment or

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immobilization for a specified period; providing for

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dismissal of an order of impoundment or immobilization

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under certain circumstances upon request of an owner who

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was not operating the vessel; providing for dismissal of

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an impoundment order; requiring records of judgments of

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guilty to include fingerprints; providing an effective

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date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1. This act may be cited as the "Barry and Sydney

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Mazer Act."

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     Section 2.  Subsection (6) of section 316.193, Florida

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Statutes, is amended, and subsection (13) is added to that

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section, to read:

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     316.193  Driving under the influence; penalties.--

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     (6)  With respect to any person convicted of a violation of

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this section subsection (1), regardless of any penalty imposed

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pursuant to subsection (2), subsection (3), or subsection (4):

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     (a)  For the first conviction, the court shall place the

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defendant on probation for a period not to exceed 1 year and, as

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a condition of such probation, shall order the defendant to

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participate in public service or a community work project for a

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minimum of 50 hours; or the court may order instead, that any

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defendant pay an additional fine of $10 for each hour of public

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service or community work otherwise required, if, after

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consideration of the residence or location of the defendant at

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the time public service or community work is required, payment of

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the fine is in the best interests of the state. However, the

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total period of probation and incarceration may not exceed 1

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year. The court must also, as a condition of probation, order the

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impoundment or immobilization of the vehicle that was operated by

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or in the actual control of the defendant or any one vehicle

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registered in the defendant's name at the time of impoundment or

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immobilization, for a period of 10 days or for the unexpired term

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of any lease or rental agreement that expires within 10 days. The

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impoundment or immobilization must not occur concurrently with

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the incarceration of the defendant. The impoundment or

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immobilization order may be dismissed in accordance with

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paragraph (e), paragraph (f), paragraph (g), or paragraph (h).

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     (b)  For the second conviction for an offense that occurs

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within a period of 5 years after the date of a prior conviction

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for violation of this section, the court shall order imprisonment

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for not less than 10 days. The court must also, as a condition of

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probation, order the impoundment or immobilization of all

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vehicles owned by the defendant at the time of impoundment or

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immobilization, for a period of 30 days or for the unexpired term

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of any lease or rental agreement that expires within 30 days. The

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impoundment or immobilization must not occur concurrently with

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the incarceration of the defendant and must occur concurrently

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with the driver's license revocation imposed under s.

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322.28(2)(a)2. The impoundment or immobilization order may be

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dismissed in accordance with paragraph (e), paragraph (f),

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paragraph (g), or paragraph (h). At least 48 hours of confinement

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must be consecutive.

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     (c) For the third or subsequent conviction for an offense

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that occurs within a period of 10 years after the date of a prior

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conviction for violation of this section, the court shall order

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imprisonment for not less than 30 days. The court must also, as a

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condition of probation, order the impoundment or immobilization

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of all vehicles owned by the defendant at the time of impoundment

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or immobilization, for a period of 90 days or for the unexpired

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term of any lease or rental agreement that expires within 90

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days. The impoundment or immobilization may must not occur

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concurrently with the incarceration of the defendant and shall

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must occur concurrently with the driver's license revocation

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imposed under s. 322.28(2)(a)3. The impoundment or immobilization

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order may be dismissed in accordance with paragraph (e),

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paragraph (f), paragraph (g), or paragraph (h). At least 48 hours

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of confinement must be consecutive.

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     (d)  The court must at the time of sentencing the defendant

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issue an order for the impoundment or immobilization of a

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vehicle. Within 7 business days after the date that the court

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issues the order of impoundment or immobilization, the clerk of

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the court must send notice by certified mail, return receipt

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requested, to the registered owner of each vehicle, if the

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registered owner is a person other than the defendant, and to

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each person of record claiming a lien against the vehicle.

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     (e)  A person who owns but was not operating the vehicle

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when the offense occurred may submit to the court a police report

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indicating that the vehicle was stolen at the time of the offense

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or documentation of having purchased the vehicle after the

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offense was committed from an entity other than the defendant or

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the defendant's agent. If the court finds that the vehicle was

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stolen or that the sale was not made to circumvent the order and

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allow the defendant continued access to the vehicle, the order

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must be dismissed and the owner of the vehicle will incur no

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costs. If the court denies the request to dismiss the order of

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impoundment or immobilization, the petitioner may request an

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evidentiary hearing.

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     (f)  A person who owns but was not operating the vehicle

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when the offense occurred, and whose vehicle was stolen or who

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purchased the vehicle after the offense was committed directly

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from the defendant or the defendant's agent, may request an

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evidentiary hearing to determine whether the impoundment or

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immobilization should occur. If the court finds that either the

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vehicle was stolen or the purchase was made without knowledge of

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the offense, that the purchaser had no relationship to the

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defendant other than through the transaction, and that such

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purchase would not circumvent the order and allow the defendant

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continued access to the vehicle, the order must be dismissed and

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the owner of the vehicle will incur no costs.

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     (g)  The court shall also dismiss the order of impoundment

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or immobilization of the vehicle if the court finds that the

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family of the owner of the vehicle has no other private or public

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means of transportation.

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     (h)  The court may also dismiss the order of impoundment or

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immobilization of any vehicles that are owned by the defendant

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but that are operated solely by the employees of the defendant or

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any business owned by the defendant.

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     (i)  All costs and fees for the impoundment or

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immobilization, including the cost of notification, must be paid

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by the owner of the vehicle or, if the vehicle is leased or

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rented, by the person leasing or renting the vehicle, unless the

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impoundment or immobilization order is dismissed. All provisions

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of s. 713.78 shall apply.

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     (j)  The person who owns a vehicle that is impounded or

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immobilized under this paragraph, or a person who has a lien of

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record against such a vehicle and who has not requested a review

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of the impoundment pursuant to paragraph (e), paragraph (f), or

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paragraph (g), may, within 10 days after the date that person has

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knowledge of the location of the vehicle, file a complaint in the

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county in which the owner resides to determine whether the

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vehicle was wrongfully taken or withheld from the owner or

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lienholder. Upon the filing of a complaint, the owner or

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lienholder may have the vehicle released by posting with the

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court a bond or other adequate security equal to the amount of

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the costs and fees for impoundment or immobilization, including

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towing or storage, to ensure the payment of such costs and fees

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if the owner or lienholder does not prevail. When the bond is

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posted and the fee is paid as set forth in s. 28.24, the clerk of

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the court shall issue a certificate releasing the vehicle. At the

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time of release, after reasonable inspection, the owner or

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lienholder must give a receipt to the towing or storage company

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indicating any loss or damage to the vehicle or to the contents

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of the vehicle.

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     (k)  A defendant, in the court's discretion, may be required

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to serve all or any portion of a term of imprisonment to which

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the defendant has been sentenced pursuant to this section in a

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residential alcoholism treatment program or a residential drug

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abuse treatment program. Any time spent in such a program must be

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credited by the court toward the term of imprisonment.

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     (l) For the fourth or subsequent conviction under

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subparagraph (2)(b)3., the court shall order imprisonment for not

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less than 2 years. Another punishment may not be substituted for

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this minimum mandatory term of imprisonment with treatment

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alternatives. However, the court may, with the consent of the

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state, order the defendant to serve a minimum mandatory sentence

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of 1 year and 1 day of incarceration followed by a period of

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probation during which the defendant must attend and successfully

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complete a residential alcohol treatment program or a residential

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drug abuse treatment program or be placed on community control.

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The court must also, as a condition of probation, order the

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impoundment or immobilization of all vehicles owned by the

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defendant at the time of impoundment or immobilization for a

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period of 120 days or for the unexpired term of any lease or

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rental agreement that expires within 120 days. The impoundment or

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immobilization may not occur concurrently with the incarceration

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of the defendant and shall occur concurrently with the driver's

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license revocation imposed under s. 322.28. The impoundment or

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immobilization order may be dismissed in accordance with

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paragraph (e), paragraph (f), paragraph (g), or paragraph (h). At

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least 48 hours of confinement must be consecutive.

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For the purposes of this section, any conviction for a violation

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of s. 327.35; a previous conviction for the violation of former

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s. 316.1931, former s. 860.01, or former s. 316.028; or a

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previous conviction outside this state for driving under the

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influence, driving while intoxicated, driving with an unlawful

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blood-alcohol level, driving with an unlawful breath-alcohol

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level, or any other similar alcohol-related or drug-related

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traffic offense, is also considered a previous conviction for

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violation of this section. However, in satisfaction of the fine

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imposed pursuant to this section, the court may, upon a finding

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that the defendant is financially unable to pay either all or

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part of the fine, order that the defendant participate for a

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specified additional period of time in public service or a

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community work project in lieu of payment of that portion of the

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fine which the court determines the defendant is unable to pay.

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In determining such additional sentence, the court shall consider

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the amount of the unpaid portion of the fine and the reasonable

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value of the services to be ordered; however, the court may not

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compute the reasonable value of services at a rate less than the

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federal minimum wage at the time of sentencing.

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     (13)(a) Notwithstanding s. 921.241, every judgment of

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guilty with respect to any offense governed by this section shall

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comply with this subsection. Each judgment shall be in writing,

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signed by the judge, and recorded by the clerk of the circuit

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court. The judge shall cause to be affixed to every such written

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judgment of guilty, in open court and in the presence of such

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judge, the fingerprints of the defendant against whom such

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judgment is rendered. Such fingerprints shall be affixed beneath

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the judge's signature to any such judgment. Beneath such

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fingerprints shall be appended a certificate in substantially the

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following form:

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"I hereby certify that the above and foregoing

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fingerprints are of the defendant, (name) , and that

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they were placed thereon by said defendant in my

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presence, in open court, this the ___ day of

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_(month)_________ (year) ."

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Such certificate shall be signed by the judge, whose signature

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thereto shall be followed by the word "Judge."

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     (b) Any such written judgment of guilty, or a certified

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copy thereof, is admissible in evidence in the courts of this

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state as prima facie evidence that the fingerprints appearing

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thereon and certified by the judge are the fingerprints of the

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defendant against whom such judgment of guilty was rendered.

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     Section 3.  Paragraphs (a) and (c) of subsection (6) of

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section 327.35, Florida Statutes, are amended, paragraphs (j)

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and (k) are added to that subsection, and subsection (11) is

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added to that section, to read:

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     327.35  Boating under the influence; penalties;

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"designated drivers".--

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     (6)  With respect to any person convicted of a violation

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of subsection (1), regardless of any other penalty imposed:

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     (a)  For the first conviction, the court shall place the

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defendant on probation for a period not to exceed 1 year and,

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as a condition of such probation, shall order the defendant to

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participate in public service or a community work project for a

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minimum of 50 hours. The court must also, as a condition of

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probation, order the impoundment or immobilization of the

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vessel that was operated by or in the actual control of the

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defendant or any one vehicle registered in the defendant's name

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at the time of impoundment or immobilization, for a period of

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10 days or for the unexpired term of any lease or rental

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agreement that expires within 10 days. The impoundment or

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immobilization must not occur concurrently with the

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incarceration of the defendant. The impoundment or

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immobilization order may be dismissed in accordance with

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paragraph (e) or paragraph (f). The total period of probation

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and incarceration may not exceed 1 year.

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     (c) For the third or subsequent conviction for an offense

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that occurs within a period of 10 years after the date of a

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prior conviction for violation of this section, the court shall

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order imprisonment for not less than 30 days. The court must

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also, as a condition of probation, order the impoundment or

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immobilization of the vessel that was operated by or in the

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actual control of the defendant or any one vehicle registered

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in the defendant's name at the time of impoundment or

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immobilization, for a period of 90 days or for the unexpired

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term of any lease or rental agreement that expires within 90

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days. The impoundment or immobilization may must not occur

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concurrently with the incarceration of the defendant. The

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impoundment or immobilization order may be dismissed in

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accordance with paragraph (e) or paragraph (f). At least 48

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hours of confinement must be consecutive.

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     (j) For the fourth or subsequent conviction under

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subparagraph (2)(b)3., the court shall order imprisonment for

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not less than 2 years. Another punishment may not be

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substituted for this minimum mandatory term of imprisonment

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with treatment alternatives. However, the court may, with the

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consent of the state, order the defendant to serve a minimum

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mandatory sentence of 1 year and 1 day of incarceration

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followed by a period of probation during which the defendant

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must attend and successfully complete a residential alcohol

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treatment program or a residential drug abuse treatment program

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or be placed on community control. The court must also, as a

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condition of probation, order the impoundment or immobilization

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of the vessel that was operated by or in the actual control of

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the defendant or any one vehicle registered in the defendant's

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name at the time of impoundment or immobilization for a period

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of 120 days or for the unexpired term of any lease or rental

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agreement that expires within 120 days. The impoundment or

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immobilization may not occur concurrently with the

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incarceration of the defendant. The impoundment or

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immobilization order may be dismissed in accordance with

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paragraph (e) or paragraph (f). At least 48 hours of

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confinement must be consecutive.

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     (k) A person who owns but was not operating the vessel

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when an offense under this section occurred may request an

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evidentiary hearing to determine whether the impoundment or

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immobilization should occur. If the court finds that the owner

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was unaware of the defendant's prior conviction and sentence

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under paragraph (a), paragraph (b), paragraph (c), or paragraph

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(j) or if the court finds that there are other mitigating

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circumstances that should allow the owner of the vessel to

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secure the release of the vessel to the owner's possession, the

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court may do so by dismissing the order of impoundment or

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immobilization with or without cost to the vessel owner.

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For the purposes of this section, any conviction for a

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violation of s. 316.193, a previous conviction for the

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violation of former s. 316.1931, former s. 860.01, or former s.

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316.028, or a previous conviction outside this state for

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driving under the influence, driving while intoxicated, driving

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with an unlawful blood-alcohol level, driving with an unlawful

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breath-alcohol level, or any other similar alcohol-related or

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drug-related traffic offense, is also considered a previous

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conviction for violation of this section.

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     (11)(a) Notwithstanding s. 921.241, every judgment of

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guilty with respect to any offense governed by this section

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shall comply with this subsection. Each judgment shall be in

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writing, signed by the judge, and recorded by the clerk of the

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circuit court. The judge shall cause to be affixed to every

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such written judgment of guilty, in open court and in the

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presence of such judge, the fingerprints of the defendant

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against whom such judgment is rendered. Such fingerprints shall

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be affixed beneath the judge's signature to any such judgment.

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Beneath such fingerprints shall be appended a certificate in

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substantially the following form:

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"I hereby certify that the above and foregoing

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fingerprints are of the defendant, (name) , and

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that they were placed thereon by said defendant in

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my presence, in open court, this the ___ day of

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_(month)_________ (year)."

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Such certificate shall be signed by the judge, whose signature

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thereto shall be followed by the word "Judge."

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     (b) Any such written judgment of guilty, or a certified

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copy thereof, is admissible in evidence in the courts of this

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state as prima facie evidence that the fingerprints appearing

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thereon and certified by the judge are the fingerprints of the

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defendant against whom such judgment of guilty was rendered.

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     Section 4.  This act shall take effect October 1, 2008.