Florida Senate - 2023                                     SB 448
       
       
        
       By Senator Berman
       
       
       
       
       
       26-00065E-23                                           2023448__
    1                        A bill to be entitled                      
    2         An act relating to operating vehicles and vessels
    3         under the influence; amending ss. 316.193 and 327.35,
    4         F.S.; revising conditions under which a person commits
    5         the offense of driving under the influence or boating
    6         under the influence, respectively; providing an
    7         affirmative defense; revising a condition that must be
    8         met before a person arrested for driving under the
    9         influence or boating under the influence,
   10         respectively, may be released from custody; defining
   11         the term “impairing substance”; providing
   12         construction; amending s. 933.02, F.S.; adding
   13         specified grounds for issuance of a search warrant;
   14         amending ss. 316.1932 and 316.1933, F.S.; conforming
   15         cross-references; providing an effective date.
   16          
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Present paragraphs (c) and (d) of subsection
   20  (14) of section 316.193, Florida Statutes, are redesignated as
   21  paragraphs (d) and (e), respectively, a new paragraph (c) is
   22  added to that subsection, subsections (1) and (9) of that
   23  section are amended, and subsection (2) of that section is
   24  republished, to read:
   25         316.193 Driving under the influence; penalties.—
   26         (1)(a) A person commits is guilty of the offense of driving
   27  under the influence and is subject to punishment as provided in
   28  subsection (2) if the person is driving or in actual physical
   29  control of a vehicle within this state and:
   30         1.(a) The person is under the influence of alcoholic
   31  beverages, any chemical substance set forth in s. 877.111, or
   32  any substance controlled under chapter 893, or any other
   33  impairing substance, or any combination thereof, when affected
   34  to the extent that the person’s normal faculties are impaired;
   35         2.(b) The person has a blood-alcohol level of 0.08 or more
   36  grams of alcohol per 100 milliliters of blood; or
   37         3.(c) The person has a breath-alcohol level of 0.08 or more
   38  grams of alcohol per 210 liters of breath; or
   39         4.The person has in his or her blood any amount of a
   40  chemical substance set forth in s. 877.111 or a substance
   41  controlled under chapter 893, or such chemical or controlled
   42  substance in any combination with alcohol as a result of
   43  consuming alcohol before or during driving.
   44         (b)It is an affirmative defense as to the presence of a
   45  chemical or controlled substance under subparagraph (a)4. that
   46  the person ingested, injected, or inhaled the substance in
   47  accordance with a valid prescription issued pursuant to s.
   48  893.04 by a practitioner as defined in s. 893.02, or pursuant to
   49  s. 381.986, and in accordance with the practitioner’s
   50  directions. However, the fact that a person is or was legally
   51  entitled to consume alcohol or any other chemical or controlled
   52  substance, medication, drug, or other impairing substance is not
   53  an affirmative defense to this section.
   54         (2)(a) Except as provided in paragraph (b), subsection (3),
   55  or subsection (4), any person who is convicted of a violation of
   56  subsection (1) shall be punished:
   57         1. By a fine of:
   58         a. Not less than $500 or more than $1,000 for a first
   59  conviction.
   60         b. Not less than $1,000 or more than $2,000 for a second
   61  conviction; and
   62         2. By imprisonment for:
   63         a. Not more than 6 months for a first conviction.
   64         b. Not more than 9 months for a second conviction.
   65         3. For a second conviction, by mandatory placement for a
   66  period of at least 1 year, at the convicted person’s sole
   67  expense, of an ignition interlock device approved by the
   68  department in accordance with s. 316.1938 upon all vehicles that
   69  are individually or jointly leased or owned and routinely
   70  operated by the convicted person, when the convicted person
   71  qualifies for a permanent or restricted license.
   72  
   73  The portion of a fine imposed in excess of $500 pursuant to sub
   74  subparagraph 1.a. and the portion of a fine imposed in excess of
   75  $1,000 pursuant to sub-subparagraph 1.b., shall be remitted by
   76  the clerk to the Department of Revenue for deposit into the
   77  General Revenue Fund.
   78         (b)1. Any person who is convicted of a third violation of
   79  this section for an offense that occurs within 10 years after a
   80  prior conviction for a violation of this section commits a
   81  felony of the third degree, punishable as provided in s.
   82  775.082, s. 775.083, or s. 775.084. In addition, the court shall
   83  order the mandatory placement for a period of not less than 2
   84  years, at the convicted person’s sole expense, of an ignition
   85  interlock device approved by the department in accordance with
   86  s. 316.1938 upon all vehicles that are individually or jointly
   87  leased or owned and routinely operated by the convicted person,
   88  when the convicted person qualifies for a permanent or
   89  restricted license.
   90         2. Any person who is convicted of a third violation of this
   91  section for an offense that occurs more than 10 years after the
   92  date of a prior conviction for a violation of this section shall
   93  be punished by a fine of not less than $2,000 or more than
   94  $5,000 and by imprisonment for not more than 12 months. The
   95  portion of a fine imposed in excess of $2,500 pursuant to this
   96  subparagraph shall be remitted by the clerk to the Department of
   97  Revenue for deposit into the General Revenue Fund. In addition,
   98  the court shall order the mandatory placement for a period of at
   99  least 2 years, at the convicted person’s sole expense, of an
  100  ignition interlock device approved by the department in
  101  accordance with s. 316.1938 upon all vehicles that are
  102  individually or jointly leased or owned and routinely operated
  103  by the convicted person, when the convicted person qualifies for
  104  a permanent or restricted license.
  105         3. Any person who is convicted of a fourth or subsequent
  106  violation of this section, regardless of when any prior
  107  conviction for a violation of this section occurred, commits a
  108  felony of the third degree, punishable as provided in s.
  109  775.082, s. 775.083, or s. 775.084. However, the fine imposed
  110  for such fourth or subsequent violation may be not less than
  111  $2,000. The portion of a fine imposed in excess of $1,000
  112  pursuant to this subparagraph shall be remitted by the clerk to
  113  the Department of Revenue for deposit into the General Revenue
  114  Fund.
  115         (c) In addition to the penalties in paragraph (a), the
  116  court may order placement, at the convicted person’s sole
  117  expense, of an ignition interlock device approved by the
  118  department in accordance with s. 316.1938 for at least 6
  119  continuous months upon all vehicles that are individually or
  120  jointly leased or owned and routinely operated by the convicted
  121  person if, at the time of the offense, the person had a blood
  122  alcohol level or breath-alcohol level of .08 or higher.
  123         (9) A person who is arrested for a violation of this
  124  section may not be released from custody:
  125         (a) Until the person is no longer under the influence of
  126  alcoholic beverages, any chemical substance set forth in s.
  127  877.111, or any substance controlled under chapter 893, or any
  128  other impairing substance, or any combination thereof, and
  129  affected to the extent that his or her normal faculties are
  130  impaired;
  131         (b) Until the person’s blood-alcohol level or breath
  132  alcohol level is less than 0.05; or
  133         (c) Until 8 hours have elapsed from the time the person was
  134  arrested.
  135         (14) As used in this chapter, the term:
  136         (c) “Impairing substance” means any substance that, when
  137  taken into the human body, can impair, or diminish in some
  138  material respect, a person’s normal faculties. Such normal
  139  faculties include, but are not limited to, the ability to see,
  140  hear, walk, talk, judge distances, drive a motor vehicle, make
  141  judgments, act in emergencies, and, in general, normally perform
  142  the many mental and physical acts of daily life.
  143         Section 2. Subsections (1) and (8) of section 327.35,
  144  Florida Statutes, are amended, subsection (11) is added to that
  145  section, and subsection (2) of that section is republished, to
  146  read:
  147         327.35 Boating under the influence; penalties; “designated
  148  drivers.”—
  149         (1)(a) A person commits is guilty of the offense of boating
  150  under the influence and is subject to punishment as provided in
  151  subsection (2) if the person is operating a vessel within this
  152  state and:
  153         1.(a) The person is under the influence of alcoholic
  154  beverages, any chemical substance set forth in s. 877.111, or
  155  any substance controlled under chapter 893, or any other
  156  impairing substance, or any combination thereof, when affected
  157  to the extent that the person’s normal faculties are impaired;
  158         2.(b) The person has a blood-alcohol level of 0.08 or more
  159  grams of alcohol per 100 milliliters of blood; or
  160         3.(c) The person has a breath-alcohol level of 0.08 or more
  161  grams of alcohol per 210 liters of breath; or
  162         4.The person has in his or her blood any amount of a
  163  chemical substance set forth in s. 877.111 or a substance
  164  controlled under chapter 893, or such chemical or controlled
  165  substance in any combination with alcohol as a result of
  166  consuming alcohol before or during operating.
  167         (b)It is an affirmative defense as to the presence of a
  168  chemical or controlled substance under subparagraph (a)4. that
  169  the person ingested, injected, or inhaled the substance in
  170  accordance with a valid prescription issued pursuant to s.
  171  893.04 by a practitioner as defined in s. 893.02, or pursuant to
  172  s. 381.986, and in accordance with the practitioner’s
  173  directions. However, the fact that a person is or was legally
  174  entitled to consume alcohol or any other chemical or controlled
  175  substance, medication, drug, or other impairing substance is not
  176  an affirmative defense to this section.
  177         (2)(a) Except as provided in paragraph (b), subsection (3),
  178  or subsection (4), any person who is convicted of a violation of
  179  subsection (1) shall be punished:
  180         1. By a fine of:
  181         a. Not less than $500 or more than $1,000 for a first
  182  conviction.
  183         b. Not less than $1,000 or more than $2,000 for a second
  184  conviction; and
  185         2. By imprisonment for:
  186         a. Not more than 6 months for a first conviction.
  187         b. Not more than 9 months for a second conviction.
  188  
  189  The portion of a fine imposed in excess of $500 pursuant to sub
  190  subparagraph 1.a. and the portion of a fine imposed in excess of
  191  $1,000 pursuant to sub-subparagraph 1.b., shall be remitted by
  192  the clerk to the Department of Revenue for deposit into the
  193  General Revenue Fund.
  194         (b)1. Any person who is convicted of a third violation of
  195  this section for an offense that occurs within 10 years after a
  196  prior conviction for a violation of this section commits a
  197  felony of the third degree, punishable as provided in s.
  198  775.082, s. 775.083, or s. 775.084.
  199         2. Any person who is convicted of a third violation of this
  200  section for an offense that occurs more than 10 years after the
  201  date of a prior conviction for a violation of this section shall
  202  be punished by a fine of not less than $2,000 or more than
  203  $5,000 and by imprisonment for not more than 12 months. The
  204  portion of a fine imposed in excess of $2,500 pursuant to this
  205  subparagraph shall be remitted by the clerk to the Department of
  206  Revenue for deposit into the General Revenue Fund.
  207         3. Any person who is convicted of a fourth or subsequent
  208  violation of this section, regardless of when any prior
  209  conviction for a violation of this section occurred, commits a
  210  felony of the third degree, punishable as provided in s.
  211  775.082, s. 775.083, or s. 775.084.
  212  
  213  However, the fine imposed for such fourth or subsequent
  214  violation may not be less than $2,000. The portion of such fine
  215  imposed in excess of $1,000 shall be remitted by the clerk to
  216  the Department of Revenue for deposit into the General Revenue
  217  Fund.
  218         (8) A person who is arrested for a violation of this
  219  section may not be released from custody:
  220         (a) Until the person is no longer under the influence of
  221  alcoholic beverages, any chemical substance set forth in s.
  222  877.111, or any substance controlled under chapter 893, or any
  223  other impairing substance, or any combination thereof, and
  224  affected to the extent that his or her normal faculties are
  225  impaired;
  226         (b) Until the person’s blood-alcohol level or breath
  227  alcohol level is less than 0.05; or
  228         (c) Until 8 hours have elapsed from the time the person was
  229  arrested.
  230         (11)As used in this section, the term impairing
  231  substance” means any substance that, when taken into the human
  232  body, can impair, or diminish in some material respect, a
  233  person’s normal faculties. Such normal faculties include, but
  234  are not limited to, the ability to see, hear, walk, talk, judge
  235  distances, operate a vessel, make judgments, act in emergencies,
  236  and, in general, normally perform the many mental and physical
  237  acts of daily life.
  238         Section 3. Section 933.02, Florida Statutes, is amended to
  239  read:
  240         933.02 Grounds for issuance of search warrant.—Upon proper
  241  affidavits being made, a search warrant may be issued under the
  242  provisions of this chapter upon any of the following grounds:
  243         (1) When the property shall have been stolen or embezzled
  244  in violation of law;
  245         (2) When any property shall have been used:
  246         (a) As a means to commit any crime;
  247         (b) In connection with gambling, gambling implements and
  248  appliances; or
  249         (c) In violation of s. 847.011 or other laws in reference
  250  to obscene prints and literature;
  251         (3) When any property constitutes evidence relevant to
  252  proving that a felony has been committed;
  253         (4) When any property is being held or possessed:
  254         (a) In violation of any of the laws prohibiting the
  255  manufacture, sale, and transportation of intoxicating liquors;
  256         (b) In violation of the fish and game laws;
  257         (c) In violation of the laws relative to food and drug; or
  258         (d) In violation of the laws relative to citrus disease
  259  pursuant to s. 581.184; or
  260         (5) When the laws in relation to cruelty to animals, as
  261  provided in chapter 828, have been or are violated in any
  262  particular building or place; or
  263         (6)When a sample of the blood of a person constitutes
  264  evidence relevant to proving that a violation of s. 316.193 or
  265  s. 327.35 has been committed.
  266  
  267  This section also applies to any papers or documents used as a
  268  means of or in aid of the commission of any offense against the
  269  laws of the state.
  270         Section 4. Paragraph (f) of subsection (1) of section
  271  316.1932, Florida Statutes, is amended to read:
  272         316.1932 Tests for alcohol, chemical substances, or
  273  controlled substances; implied consent; refusal.—
  274         (1)
  275         (f)1. The tests determining the weight of alcohol in the
  276  defendant’s blood or breath shall be administered at the request
  277  of a law enforcement officer substantially in accordance with
  278  rules of the Department of Law Enforcement. Such rules must
  279  specify precisely the test or tests that are approved by the
  280  Department of Law Enforcement for reliability of result and ease
  281  of administration, and must provide an approved method of
  282  administration which must be followed in all such tests given
  283  under this section. However, the failure of a law enforcement
  284  officer to request the withdrawal of blood does not affect the
  285  admissibility of a test of blood withdrawn for medical purposes.
  286         2.a. Only a physician, certified paramedic, registered
  287  nurse, licensed practical nurse, other personnel authorized by a
  288  hospital to draw blood, or duly licensed clinical laboratory
  289  director, supervisor, technologist, or technician, acting at the
  290  request of a law enforcement officer, may withdraw blood for the
  291  purpose of determining its alcoholic content or the presence of
  292  chemical substances or controlled substances therein. However,
  293  the failure of a law enforcement officer to request the
  294  withdrawal of blood does not affect the admissibility of a test
  295  of blood withdrawn for medical purposes.
  296         b. Notwithstanding any provision of law pertaining to the
  297  confidentiality of hospital records or other medical records, if
  298  a health care provider, who is providing medical care in a
  299  health care facility to a person injured in a motor vehicle
  300  crash, becomes aware, as a result of any blood test performed in
  301  the course of that medical treatment, that the person’s blood
  302  alcohol level meets or exceeds the blood-alcohol level specified
  303  in s. 316.193(1)(a)2. s. 316.193(1)(b), the health care provider
  304  may notify any law enforcement officer or law enforcement
  305  agency. Any such notice must be given within a reasonable time
  306  after the health care provider receives the test result. Any
  307  such notice shall be used only for the purpose of providing the
  308  law enforcement officer with reasonable cause to request the
  309  withdrawal of a blood sample pursuant to this section.
  310         c. The notice must shall consist only of the name of the
  311  person being treated, the name of the person who drew the blood,
  312  the blood-alcohol level indicated by the test, and the date and
  313  time of the administration of the test.
  314         d. Nothing contained in s. 395.3025(4), s. 456.057, or any
  315  applicable practice act affects the authority to provide notice
  316  under this section, and the health care provider is not
  317  considered to have breached any duty owed to the person under s.
  318  395.3025(4), s. 456.057, or any applicable practice act by
  319  providing notice or failing to provide notice. It is not shall
  320  not be a breach of any ethical, moral, or legal duty for a
  321  health care provider to provide notice or fail to provide
  322  notice.
  323         e. A civil, criminal, or administrative action may not be
  324  brought against any person or health care provider participating
  325  in good faith in the provision of notice or failure to provide
  326  notice as provided in this section. Any person or health care
  327  provider participating in the provision of notice or failure to
  328  provide notice as provided in this section shall be immune from
  329  any civil or criminal liability and from any professional
  330  disciplinary action with respect to the provision of notice or
  331  failure to provide notice under this section. Any such
  332  participant has the same immunity with respect to participating
  333  in any judicial proceedings resulting from the notice or failure
  334  to provide notice.
  335         3. The person tested may, at his or her own expense, have a
  336  physician, registered nurse, other personnel authorized by a
  337  hospital to draw blood, or duly licensed clinical laboratory
  338  director, supervisor, technologist, or technician, or other
  339  person of his or her own choosing administer an independent test
  340  in addition to the test administered at the direction of the law
  341  enforcement officer for the purpose of determining the amount of
  342  alcohol in the person’s blood or breath or the presence of
  343  chemical substances or controlled substances at the time
  344  alleged, as shown by chemical analysis of his or her blood or
  345  urine, or by chemical or physical test of his or her breath. The
  346  failure or inability to obtain an independent test by a person
  347  does not preclude the admissibility in evidence of the test
  348  taken at the direction of the law enforcement officer. The law
  349  enforcement officer shall not interfere with the person’s
  350  opportunity to obtain the independent test and shall provide the
  351  person with timely telephone access to secure the test, but the
  352  burden is on the person to arrange and secure the test at the
  353  person’s own expense.
  354         4. Upon the request of the person tested, full information
  355  concerning the results of the test taken at the direction of the
  356  law enforcement officer shall be made available to the person or
  357  his or her attorney. Full information is limited to the
  358  following:
  359         a. The type of test administered and the procedures
  360  followed.
  361         b. The time of the collection of the blood or breath sample
  362  analyzed.
  363         c. The numerical results of the test indicating the alcohol
  364  content of the blood and breath.
  365         d. The type and status of any permit issued by the
  366  Department of Law Enforcement which was held by the person who
  367  performed the test.
  368         e. If the test was administered by means of a breath
  369  testing instrument, the date of performance of the most recent
  370  required inspection of such instrument.
  371  
  372  Full information does not include manuals, schematics, or
  373  software of the instrument used to test the person or any other
  374  material that is not in the actual possession of the state.
  375  Additionally, full information does not include information in
  376  the possession of the manufacturer of the test instrument.
  377         5. A hospital, clinical laboratory, medical clinic, or
  378  similar medical institution or physician, certified paramedic,
  379  registered nurse, licensed practical nurse, other personnel
  380  authorized by a hospital to draw blood, or duly licensed
  381  clinical laboratory director, supervisor, technologist, or
  382  technician, or other person assisting a law enforcement officer
  383  does not incur any civil or criminal liability as a result of
  384  the withdrawal or analysis of a blood or urine specimen, or the
  385  chemical or physical test of a person’s breath pursuant to
  386  accepted medical standards when requested by a law enforcement
  387  officer, regardless of whether or not the subject resisted
  388  administration of the test.
  389         Section 5. Paragraph (a) of subsection (2) of section
  390  316.1933, Florida Statutes, is amended to read:
  391         316.1933 Blood test for impairment or intoxication in cases
  392  of death or serious bodily injury; right to use reasonable
  393  force.—
  394         (2)(a) Only a physician, certified paramedic, registered
  395  nurse, licensed practical nurse, other personnel authorized by a
  396  hospital to draw blood, or duly licensed clinical laboratory
  397  director, supervisor, technologist, or technician, acting at the
  398  request of a law enforcement officer, may withdraw blood for the
  399  purpose of determining the alcoholic content thereof or the
  400  presence of chemical substances or controlled substances
  401  therein. However, the failure of a law enforcement officer to
  402  request the withdrawal of blood does not shall not affect the
  403  admissibility of a test of blood withdrawn for medical purposes.
  404         1. Notwithstanding any provision of law pertaining to the
  405  confidentiality of hospital records or other medical records, if
  406  a health care provider, who is providing medical care in a
  407  health care facility to a person injured in a motor vehicle
  408  crash, becomes aware, as a result of any blood test performed in
  409  the course of that medical treatment, that the person’s blood
  410  alcohol level meets or exceeds the blood-alcohol level specified
  411  in s. 316.193(1)(a)2. s. 316.193(1)(b), the health care provider
  412  may notify any law enforcement officer or law enforcement
  413  agency. Any such notice must be given within a reasonable time
  414  after the health care provider receives the test result. Any
  415  such notice shall be used only for the purpose of providing the
  416  law enforcement officer with reasonable cause to request the
  417  withdrawal of a blood sample pursuant to this section.
  418         2. The notice must shall consist only of the name of the
  419  person being treated, the name of the person who drew the blood,
  420  the blood-alcohol level indicated by the test, and the date and
  421  time of the administration of the test.
  422         3. Nothing contained in s. 395.3025(4), s. 456.057, or any
  423  applicable practice act affects the authority to provide notice
  424  under this section, and the health care provider is not
  425  considered to have breached any duty owed to the person under s.
  426  395.3025(4), s. 456.057, or any applicable practice act by
  427  providing notice or failing to provide notice. It is not shall
  428  not be a breach of any ethical, moral, or legal duty for a
  429  health care provider to provide notice or fail to provide
  430  notice.
  431         4. A civil, criminal, or administrative action may not be
  432  brought against any person or health care provider participating
  433  in good faith in the provision of notice or failure to provide
  434  notice as provided in this section. Any person or health care
  435  provider participating in the provision of notice or failure to
  436  provide notice as provided in this section shall be immune from
  437  any civil or criminal liability and from any professional
  438  disciplinary action with respect to the provision of notice or
  439  failure to provide notice under this section. Any such
  440  participant has the same immunity with respect to participating
  441  in any judicial proceedings resulting from the notice or failure
  442  to provide notice.
  443         Section 6. This act shall take effect October 1, 2023.