Florida Senate - 2009 SB 262
By Senator Wise
5-00217A-09 2009262__
1 A bill to be entitled
2 An act relating to blood testing of persons involved
3 in a traffic accident causing death; amending s.
4 316.1933, F.S.; requiring a law enforcement officer
5 who has a reasonable suspicion that a person was
6 driving or in actual physical control of a motor
7 vehicle when it was involved in an accident that may
8 have caused or contributed to the death of a human
9 being to require that the person submit to a blood
10 test to determine the alcoholic content thereof or the
11 presence of specified substances; authorizing the law
12 enforcement officer to use reasonable force if
13 necessary; requiring that the blood test be performed
14 in a reasonable manner; providing that the test need
15 not be incidental to a lawful arrest of the person;
16 providing for admissibility of the test result at
17 trial; providing testing requirements and procedures;
18 providing a limitation of liability; providing for the
19 disposition of charges; limiting the use of test
20 results; authorizing the release of results to certain
21 persons; reenacting ss. 316.066(7), 316.1934(2),
22 322.2616(18), and 322.27(1), F.S., relating to written
23 reports of crashes, presumption of impairment and
24 testing methods, suspension of license, and the
25 authority of the Department of Highway Safety and
26 Motor Vehicles to suspend or revoke a license, to
27 incorporate the amendment to s. 316.1933, F.S., in
28 references thereto; providing an effective date.
29
30 Be It Enacted by the Legislature of the State of Florida:
31
32 Section 1. Section 316.1933, Florida Statutes, is amended
33 to read:
34 316.1933 Blood test for impairment or intoxication in cases
35 of death or serious bodily injury; right to use reasonable
36 force.—
37 (1)(a) If a law enforcement officer has probable cause to
38 believe that a motor vehicle driven by or in the actual physical
39 control of a person under the influence of alcoholic beverages,
40 any chemical substances, or any controlled substances has caused
41 the death or serious bodily injury of a human being, a law
42 enforcement officer shall require the person driving or in
43 actual physical control of the motor vehicle to submit to a test
44 of the person's blood for the purpose of determining the
45 alcoholic content thereof or the presence of chemical substances
46 as set forth in s. 877.111 or any substance controlled under
47 chapter 893. The law enforcement officer may use reasonable
48 force if necessary to require such person to submit to the
49 administration of the blood test. The blood test shall be
50 performed in a reasonable manner. Notwithstanding s. 316.1932,
51 the testing required by this paragraph need not be incidental to
52 a lawful arrest of the person.
53 (b) If a law enforcement officer has a reasonable suspicion
54 that a person was driving or in actual physical control of a
55 motor vehicle when it was involved in an accident that may have
56 caused or contributed to the death of a human being, the law
57 enforcement officer shall require the person who is suspected of
58 driving or being in actual physical control of the motor vehicle
59 to submit to a test of the person's blood for the purpose of
60 determining the alcoholic content thereof or the presence of
61 chemical substances as set forth in s. 877.111 or any substance
62 controlled under chapter 893. The law enforcement officer may
63 use reasonable force if necessary to require such person to
64 submit to the administration of the blood test. The blood test
65 shall be performed in a reasonable manner. Notwithstanding s.
66 316.1932, the testing required by this paragraph need not be
67 incidental to a lawful arrest of the person. The result of the
68 test is admissible at trial if the court, after reviewing all
69 the evidence, whether gathered prior to, during, or after the
70 test, is satisfied that probable cause exists, independent of
71 the test result, to believe that the person suspected of driving
72 or being in actual physical control of the motor vehicle was
73 under the influence of alcohol, any chemical substance as set
74 forth in s. 877.111, or any substance controlled under chapter
75 893 at the time of the accident.
76 (c)(b) The term “serious bodily injury” means an injury to
77 any person, including the driver, which consists of a physical
78 condition that creates a substantial risk of death, serious
79 personal disfigurement, or protracted loss or impairment of the
80 function of any bodily member or organ.
81 (2)(a) Only a physician, certified paramedic, registered
82 nurse, licensed practical nurse, other personnel authorized by a
83 hospital to draw blood, or duly licensed clinical laboratory
84 director, supervisor, technologist, or technician, acting at the
85 request of a law enforcement officer, may withdraw blood for the
86 purpose of determining the alcoholic content thereof or the
87 presence of chemical substances or controlled substances
88 therein. However, the failure of a law enforcement officer to
89 request the withdrawal of blood shall not affect the
90 admissibility of a test of blood withdrawn for medical purposes.
91 1. Notwithstanding any provision of law pertaining to the
92 confidentiality of hospital records or other medical records, if
93 a health care provider, who is providing medical care in a
94 health care facility to a person injured in a motor vehicle
95 crash, becomes aware, as a result of any blood test performed in
96 the course of that medical treatment, that the person's blood
97 alcohol level meets or exceeds the blood-alcohol level specified
98 in s. 316.193(1)(b), the health care provider may notify any law
99 enforcement officer or law enforcement agency. Any such notice
100 must be given within a reasonable time after the health care
101 provider receives the test result. Any such notice shall be used
102 only for the purpose of providing the law enforcement officer
103 with reasonable cause to request the withdrawal of a blood
104 sample pursuant to this section.
105 2. The notice shall consist only of the name of the person
106 being treated, the name of the person who drew the blood, the
107 blood-alcohol level indicated by the test, and the date and time
108 of the administration of the test.
109 3. Nothing contained in s. 395.3025(4), s. 456.057, or any
110 applicable practice act affects the authority to provide notice
111 under this section, and the health care provider is not
112 considered to have breached any duty owed to the person under s.
113 395.3025(4), s. 456.057, or any applicable practice act by
114 providing notice or failing to provide notice. It is shall not
115 be a breach of any ethical, moral, or legal duty for a health
116 care provider to provide notice or fail to provide notice.
117 4. A civil, criminal, or administrative action may not be
118 brought against any person or health care provider participating
119 in good faith in the provision of notice or failure to provide
120 notice as provided in this section. Any person or health care
121 provider participating in the provision of notice or failure to
122 provide notice as provided in this section is shall be immune
123 from any civil or criminal liability and from any professional
124 disciplinary action with respect to the provision of notice or
125 failure to provide notice under this section. Any such
126 participant has the same immunity with respect to participating
127 in any judicial proceedings resulting from the notice or failure
128 to provide notice.
129 (b) A chemical analysis of the person's blood to determine
130 the alcoholic content thereof must have been performed
131 substantially in accordance with methods approved by the
132 Department of Law Enforcement and by an individual possessing a
133 valid permit issued by the department for this purpose. The
134 Department of Law Enforcement may approve satisfactory
135 techniques or methods, ascertain the qualifications and
136 competence of individuals to conduct such analyses, and issue
137 permits that are subject to termination or revocation at the
138 discretion of the department. Any insubstantial differences
139 between approved methods or techniques and actual testing
140 procedures, or any insubstantial defects concerning the permit
141 issued by the department, in any individual case, does shall not
142 render the test or test results invalid.
143 (c) No hospital, clinical laboratory, medical clinic, or
144 similar medical institution or physician, certified paramedic,
145 registered nurse, licensed practical nurse, other personnel
146 authorized by a hospital to draw blood, or duly licensed
147 clinical laboratory director, supervisor, technologist, or
148 technician, or other person assisting a law enforcement officer
149 shall incur any civil or criminal liability as a result of the
150 withdrawal or analysis of a blood specimen pursuant to accepted
151 medical standards when requested by a law enforcement officer,
152 regardless of whether or not the subject resisted administration
153 of the test.
154 (3)(a) Any criminal charge resulting from the incident
155 giving rise to the officer's demand for testing shall be tried
156 concurrently with a charge of any violation arising out of the
157 same incident, unless, in the discretion of the court, such
158 charges should be tried separately. If such charges are tried
159 separately, the fact that such person refused, resisted,
160 obstructed, or opposed testing is shall be admissible at the
161 trial of the criminal offense that which gave rise to the demand
162 for testing.
163 (b) The results of any test administered pursuant to this
164 section for the purpose of detecting the presence of any
165 controlled substance are shall not be admissible as evidence in
166 a criminal prosecution for the possession of a controlled
167 substance.
168 (4) Notwithstanding any provision of law pertaining to the
169 confidentiality of hospital records or other medical records,
170 information relating to the alcoholic content of the blood or
171 the presence of chemical substances or controlled substances in
172 the blood obtained pursuant to this section shall be released to
173 a court, prosecuting attorney, defense attorney, or law
174 enforcement officer in connection with an alleged violation of
175 s. 316.193 upon request for such information.
176 Section 2. For the purpose of incorporating the amendment
177 made by this act to section 316.1933, Florida Statutes, in a
178 reference thereto, subsection (7) of section 316.066, Florida
179 Statutes, is reenacted to read:
180 316.066 Written reports of crashes.—
181 (7) Except as specified in this subsection, each crash
182 report made by a person involved in a crash and any statement
183 made by such person to a law enforcement officer for the purpose
184 of completing a crash report required by this section shall be
185 without prejudice to the individual so reporting. No such report
186 or statement shall be used as evidence in any trial, civil or
187 criminal. However, subject to the applicable rules of evidence,
188 a law enforcement officer at a criminal trial may testify as to
189 any statement made to the officer by the person involved in the
190 crash if that person's privilege against self-incrimination is
191 not violated. The results of breath, urine, and blood tests
192 administered as provided in s. 316.1932 or s. 316.1933 are not
193 confidential and shall be admissible into evidence in accordance
194 with the provisions of s. 316.1934(2). Crash reports made by
195 persons involved in crashes shall not be used for commercial
196 solicitation purposes; however, the use of a crash report for
197 purposes of publication in a newspaper or other news periodical
198 or a radio or television broadcast shall not be construed as
199 “commercial purpose.”
200 Section 3. For the purpose of incorporating the amendment
201 made by this act to section 316.1933, Florida Statutes, in a
202 reference thereto, subsection (2) of section 316.1934, Florida
203 Statutes, is reenacted to read:
204 316.1934 Presumption of impairment; testing methods.—
205 (2) At the trial of any civil or criminal action or
206 proceeding arising out of acts alleged to have been committed by
207 any person while driving, or in actual physical control of, a
208 vehicle while under the influence of alcoholic beverages or
209 controlled substances, when affected to the extent that the
210 person's normal faculties were impaired or to the extent that he
211 or she was deprived of full possession of his or her normal
212 faculties, the results of any test administered in accordance
213 with s. 316.1932 or s. 316.1933 and this section are admissible
214 into evidence when otherwise admissible, and the amount of
215 alcohol in the person's blood or breath at the time alleged, as
216 shown by chemical analysis of the person's blood, or by chemical
217 or physical test of the person's breath, gives rise to the
218 following presumptions:
219 (a) If there was at that time a blood-alcohol level or
220 breath-alcohol level of 0.05 or less, it is presumed that the
221 person was not under the influence of alcoholic beverages to the
222 extent that his or her normal faculties were impaired.
223 (b) If there was at that time a blood-alcohol level or
224 breath-alcohol level in excess of 0.05 but less than 0.08, that
225 fact does not give rise to any presumption that the person was
226 or was not under the influence of alcoholic beverages to the
227 extent that his or her normal faculties were impaired but may be
228 considered with other competent evidence in determining whether
229 the person was under the influence of alcoholic beverages to the
230 extent that his or her normal faculties were impaired.
231 (c) If there was at that time a blood-alcohol level or
232 breath-alcohol level of 0.08 or higher, that fact is prima facie
233 evidence that the person was under the influence of alcoholic
234 beverages to the extent that his or her normal faculties were
235 impaired. Moreover, such person who has a blood-alcohol level or
236 breath-alcohol level of 0.08 or higher is guilty of driving, or
237 being in actual physical control of, a motor vehicle, with an
238 unlawful blood-alcohol level or breath-alcohol level.
239 The presumptions provided in this subsection do not limit the
240 introduction of any other competent evidence bearing upon the
241 question of whether the person was under the influence of
242 alcoholic beverages to the extent that his or her normal
243 faculties were impaired.
244 Section 4. For the purpose of incorporating the amendment
245 made by this act to section 316.1933, Florida Statutes, in a
246 reference thereto, subsection (18) of section 322.2616, Florida
247 Statutes, is reenacted to read:
248 322.2616 Suspension of license; persons under 21 years of
249 age; right to review.—
250 (18) The result of a blood test obtained during an
251 investigation conducted under s. 316.1932 or s. 316.1933 may be
252 used to suspend the driving privilege of a person under this
253 section.
254 Section 5. For the purpose of incorporating the amendment
255 made by this act to section 316.1933, Florida Statutes, in a
256 reference thereto, subsection (1) of section 322.27, Florida
257 Statutes, is reenacted to read:
258 322.27 Authority of department to suspend or revoke
259 license.—
260 (1) Notwithstanding any provisions to the contrary in
261 chapter 120, the department is hereby authorized to suspend the
262 license of any person without preliminary hearing upon a showing
263 of its records or other sufficient evidence that the licensee:
264 (a) Has committed an offense for which mandatory revocation
265 of license is required upon conviction. A law enforcement agency
266 must provide information to the department within 24 hours after
267 any traffic fatality or when the law enforcement agency
268 initiates action pursuant to s. 316.1933;
269 (b) Has been convicted of a violation of any traffic law
270 which resulted in a crash that caused the death or personal
271 injury of another or property damage in excess of $500;
272 (c) Is incompetent to drive a motor vehicle;
273 (d) Has permitted an unlawful or fraudulent use of such
274 license or has knowingly been a party to the obtaining of a
275 license by fraud or misrepresentation or to display, or
276 represent as one's own, any driver's license not issued him or
277 her. Provided, however, no provision of this section shall be
278 construed to include the provisions of s. 322.32(1);
279 (e) Has committed an offense in another state which if
280 committed in this state would be grounds for suspension or
281 revocation; or
282 (f) Has committed a second or subsequent violation of s.
283 316.172(1) within a 5-year period of any previous violation.
284 Section 6. This act shall take effect July 1, 2009.