Senate Bill 1382

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    Florida Senate - 1998                                  SB 1382

    By Senator Forman





    32-472A-98

  1                      A bill to be entitled

  2         An act relating to the operation of vehicles or

  3         vessels while under the influence; amending s.

  4         316.193; providing for impoundment or

  5         immobilization of a vehicle; providing for

  6         impoundment of other vehicles owned by the

  7         defendant; providing circumstances for

  8         dismissal of the impoundment or immobilization

  9         order; amending s. 327.35, F.S.; providing for

10         impoundment or immobilization of a vessel;

11         providing for impoundment or immobilization of

12         other vessels owned by the defendant; providing

13         circumstances for dismissal of a court's

14         impoundment or immobilization order; amending

15         s. 327.352, F.S., providing a civil penalty for

16         refusal to submit to chemical testing;

17         providing an effective date.

18

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

20

21         Section 1.  Subsection (6) of section 316.193, Florida

22  Statutes, is amended to read:

23         316.193  Driving under the influence; penalties.--

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

25  violation of subsection (1), regardless of any penalty imposed

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

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

28  the defendant on probation for a period not to exceed 1 year

29  and, as a condition of such probation, shall order the

30  defendant to participate in public service or a community work

31  project for a minimum of 50 hours; or the court may order

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    Florida Senate - 1998                                  SB 1382
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  1  instead, that any defendant pay an additional fine of $10 for

  2  each hour of public service or community work otherwise

  3  required, if, after consideration of the residence or location

  4  of the defendant at the time public service or community work

  5  is required, payment of the fine is in the best interests of

  6  the state. However, the total period of probation and

  7  incarceration may not exceed 1 year. The court must also, as a

  8  condition of probation, order the impoundment or

  9  immobilization of the vehicle that was operated by or in the

10  actual control of the defendant, and any vehicle registered in

11  the defendant's name, for a period of 10 days or for the

12  unexpired term of any lease or rental agreement that expires

13  within 10 days. The impoundment or immobilization must not

14  occur concurrently with the incarceration of the defendant.

15  The impoundment or immobilization order may be dismissed in

16  accordance with paragraph (e), paragraph (f), or paragraph

17  (g).

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

19  occurs within a period of 5 years after the date of a prior

20  conviction for violation of this section, the court shall

21  order imprisonment for not less than 10 days.  The court must

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

23  immobilization of the vehicle that was operated by or in the

24  actual control of the defendant, and any vehicle registered in

25  the defendant's name, for a period of 30 days or for the

26  unexpired term of any lease or rental agreement that expires

27  within 30 days. The impoundment or immobilization must not

28  occur concurrently with the incarceration of the defendant.

29  The impoundment or immobilization order may be dismissed in

30  accordance with paragraph (e), paragraph (f), or paragraph

31  (g).  At least 48 hours of confinement must be consecutive.

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    Florida Senate - 1998                                  SB 1382
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  1         (c)  For the third or subsequent conviction for an

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

  3  of a prior conviction for violation of this section, the court

  4  shall order imprisonment for not less than 30 days.  The court

  5  must also, as a condition of probation, order the impoundment

  6  or immobilization of the vehicle that was operated by or in

  7  the actual control of the defendant, and any vehicle

  8  registered in the defendant's name, for a period of 90 days or

  9  for the unexpired term of any lease or rental agreement that

10  expires within 90 days. The impoundment or immobilization must

11  not occur concurrently with the incarceration of the

12  defendant.  The impoundment or immobilization order may be

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

14  paragraph (g). At least 48 hours of confinement must be

15  consecutive.

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

17  defendant issue an order for the impoundment or immobilization

18  of a vehicle. Within 7 business days after the date that the

19  court issues the order of impoundment or immobilization, and

20  once again 30 business days before the actual impoundment or

21  immobilization of the vehicle, the clerk of the court must

22  send notice by certified mail, return receipt requested, to

23  the registered owner of each vehicle, if the registered owner

24  is a person other than the defendant, and to each person of

25  record claiming a lien against the vehicle.

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

27  vehicle when the offense occurred may submit to the court a

28  police report indicating that the vehicle was stolen at the

29  time of the offense or documentation of having purchased the

30  vehicle after the offense was committed from an entity other

31  than the defendant or the defendant's agent. If the court

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    Florida Senate - 1998                                  SB 1382
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  1  finds that the vehicle was stolen or that the sale was not

  2  made to circumvent the order and allow the defendant continued

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

  4  owner of the vehicle will incur no costs. If the court denies

  5  the request to dismiss the order of impoundment or

  6  immobilization, the petitioner may request an evidentiary

  7  hearing.

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

  9  vehicle when the offense occurred, and whose vehicle was

10  stolen or who purchased the vehicle after the offense was

11  committed directly from the defendant or the defendant's

12  agent, may request an evidentiary hearing to determine whether

13  the impoundment should occur. If the court finds that either

14  the vehicle was stolen or the purchase was made without

15  knowledge of the offense, that the purchaser had no

16  relationship to the defendant other than through the

17  transaction, and that such purchase would not circumvent the

18  order and allow the defendant continued access to the vehicle,

19  the order must be dismissed and the owner of the vehicle will

20  incur no costs.

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

22  impoundment or immobilization of the vehicle if the court

23  finds that the family of the owner of the vehicle has no other

24  public or private means of transportation.

25         (d)  In addition to the penalty imposed under paragraph

26  (a), paragraph (b), or paragraph (c), the court shall also

27  order the impoundment or immobilization of the vehicle that

28  was driven by, or in the actual physical control of, the

29  offender, unless the court finds that the family of the owner

30  of the vehicle has no other public or private means of

31  transportation. The period of impoundment or immobilization is

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  1  10 days, or, for the second conviction within 3 years, 30

  2  days, or, for the third conviction within 5 years, 90 days and

  3  may not be concurrent with probation or imprisonment. If the

  4  vehicle is leased or rented, the period of impoundment or

  5  immobilization may not extend beyond the expiration of the

  6  lease or rental agreement. Within 7 business days after the

  7  date that the court issues the order of impoundment or

  8  immobilization, the clerk of the court shall send notice by

  9  certified mail, return receipt requested, to the registered

10  owner of the vehicle if the registered owner is a person other

11  than the offender and to each person of record claiming a lien

12  against the vehicle.

13         (h)  All costs and fees for the impoundment or

14  immobilization, including the cost of notification, must be

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

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

17  unless the impoundment or immobilization order is dismissed.

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

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

20  of record against such a vehicle and who has not requested a

21  review of the impoundment pursuant to paragraph (e), paragraph

22  (f), or paragraph (g), may, within 10 days after the date that

23  person has knowledge of the location of the vehicle, file a

24  complaint in the county in which the owner resides to

25  determine whether the vehicle was wrongfully taken or withheld

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

27  the owner or lienholder may have the vehicle released by

28  posting with the court a bond or other adequate security equal

29  to the amount of the costs and fees for impoundment or

30  immobilization, including towing or storage, to ensure the

31  payment of such costs and fees if the owner or lienholder does

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    Florida Senate - 1998                                  SB 1382
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  1  not prevail. When the bond is posted and the fee is paid as

  2  set forth in s. 28.24, the clerk of the court shall issue a

  3  certificate releasing the vehicle. At the time of release,

  4  after reasonable inspection, the owner or lienholder must give

  5  a receipt to the towing or storage company indicating any loss

  6  or damage to the vehicle or to the contents of the vehicle.

  7         (j)(e)  A defendant, in the court's discretion, may be

  8  required to serve all or any portion of a term of imprisonment

  9  to which the defendant has been sentenced pursuant to this

10  section in a residential alcoholism treatment program or a

11  residential drug abuse treatment program. Any time spent in

12  such a program must be credited by the court toward the term

13  of imprisonment.

14

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

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

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

18  s. 316.028; or a previous conviction outside this state for

19  driving under the influence, driving while intoxicated,

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

21  unlawful breath-alcohol level, or any other similar

22  alcohol-related or drug-related traffic offense, is also

23  considered a previous conviction for violation of this

24  section. However, in satisfaction of the fine imposed pursuant

25  to this section, the court may, upon a finding that the

26  defendant is financially unable to pay either all or part of

27  the fine, order that the defendant participate for a specified

28  additional period of time in public service or a community

29  work project in lieu of payment of that portion of the fine

30  which the court determines the defendant is unable to pay. In

31  determining such additional sentence, the court shall consider

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    Florida Senate - 1998                                  SB 1382
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  1  the amount of the unpaid portion of the fine and the

  2  reasonable value of the services to be ordered; however, the

  3  court may not compute the reasonable value of services at a

  4  rate less than the federal minimum wage at the time of

  5  sentencing.

  6         Section 2.  Subsection (6) of section 327.35, Florida

  7  Statutes, is amended to read:

  8         327.35  Boating under the influence; penalties.--

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

10  violation of subsection (1), regardless of any other penalty

11  imposed:

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

13  the defendant on probation for a period not to exceed 1 year

14  and, as a condition of such probation, shall order the

15  defendant to participate in public service or a community work

16  project for a minimum of 50 hours.   The court must also, as a

17  condition of probation, order the impoundment or

18  immobilization of the vessel that was operated by or in the

19  actual control of the defendant, and any vessel registered in

20  the defendant's name, for a period of 10 days or for the

21  unexpired term of any lease or rental agreement that expires

22  within 10 days. The impoundment or immobilization must not

23  occur concurrently with the incarceration of the defendant.

24  The impoundment or immobilization order may be dismissed in

25  accordance with paragraph (e) or paragraph (f). The total

26  period of probation and incarceration may not exceed 1 year.

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

28  occurs within a period of 5 years after the date of a prior

29  conviction for violation of this section, the court shall

30  order imprisonment for not less than 10 days.  The court must

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

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    Florida Senate - 1998                                  SB 1382
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  1  immobilization of the vessel that was operated by or in the

  2  actual control of the defendant, and any vessel registered in

  3  the defendant's name, for a period of 30 days or for the

  4  unexpired term of any lease or rental agreement that expires

  5  within 30 days. The impoundment or immobilization must not

  6  occur concurrently with the incarceration of the defendant.

  7  The impoundment or immobilization order may be dismissed in

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

  9  hours of confinement must be consecutive.

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

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

12  of a prior conviction for violation of this section, the court

13  shall order imprisonment for not less than 30 days.  The court

14  must also, as a condition of probation, order the impoundment

15  or immobilization of the vessel that was operated by or in the

16  actual control of the defendant, and any vessel registered in

17  the defendant's name, for a period of 90 days or for the

18  unexpired term of any lease or rental agreement that expires

19  within 90 days. The impoundment or immobilization must not

20  occur concurrently with the incarceration of the defendant.

21  The impoundment or immobilization order may be dismissed in

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

23  hours of confinement must be consecutive.

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

25  defendant issue an order for the impoundment or immobilization

26  of a vessel. Within 7 business days after the date that the

27  court issues the order of impoundment, and once again 30

28  business days before the actual impoundment or immobilization

29  of the vessel, the clerk of the court must send notice by

30  certified mail, return receipt requested, to the registered

31  owner of each vessel, if the registered owner is a person

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  1  other than the defendant, and to each person of record

  2  claiming a lien against the vessel.

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

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

  5  report indicating that the vessel was stolen at the time of

  6  the offense or documentation of having purchased the vessel

  7  after the offense was committed from an entity other than the

  8  defendant or the defendant's agent. If the court finds that

  9  the vessel was stolen or that the sale was not made to

10  circumvent the order and allow the defendant continued access

11  to the vessel, the order must be dismissed and the owner of

12  the vessel will incur no costs. If the court denies the

13  request to dismiss the order of impoundment or immobilization,

14  the petitioner may request an evidentiary hearing.

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

16  when the offense occurred, and whose vessel was stolen or who

17  purchased the vessel after the offense was committed directly

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

19  evidentiary hearing to determine whether the impoundment

20  should occur. If the court finds that either the vessel was

21  stolen or the purchase was made without knowledge of the

22  offense, that the purchaser had no relationship to the

23  defendant other than through the transaction, and that such

24  purchase would not circumvent the order and allow the

25  defendant continued access to the vessel, the order must be

26  dismissed and the owner of the vessel will incur no costs.

27         (d)  In addition to any other penalty imposed, the

28  court shall also order the impoundment or immobilization of

29  the vessel that was operated by, or in the actual physical

30  control of, the offender. The period of impoundment or

31  immobilization is 10 days, or, for the second conviction

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  1  within 3 years, 30 days, or, for the third conviction within 5

  2  years, 90 days and may not be concurrent with probation or

  3  imprisonment. If the vessel is leased or rented, the period of

  4  impoundment or immobilization may not extend beyond the

  5  expiration of the lease or rental agreement. Within 7 business

  6  days after the date that the court issues the order of

  7  impoundment or immobilization, the clerk of the court shall

  8  send notice by certified mail, return receipt requested, to

  9  the registered owner of the vessel if the registered owner is

10  a person other than the offender and to each person of record

11  claiming a lien against the vessel.

12         (g)  All costs and fees for the impoundment or

13  immobilization, including the cost of notification, must be

14  paid by the owner of the vessel or, if the vessel is leased or

15  rented, by the person leasing or renting the vessel, unless

16  the impoundment or immobilization order is dismissed.

17         (h)  The person who owns a vessel that is impounded or

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

19  of record against such a  vessel and who has not requested a

20  review of the impoundment pursuant to paragraph (e) or

21  paragraph (f), may, within 10 days after the date that person

22  has knowledge of the location of the vessel, file a complaint

23  in the county in which the owner resides to determine whether

24  the vessel was wrongfully taken or withheld from the owner or

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

26  lienholder may have the vessel released by posting with the

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

28  the costs and fees for impoundment or immobilization,

29  including towing or storage, to ensure the payment of the

30  costs and fees if the owner or lienholder does not prevail.

31  When the bond is posted and the fee is paid as set forth in s.

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  1  28.24, the clerk of the court shall issue a certificate

  2  releasing the vessel. At the time of release, after reasonable

  3  inspection, the owner or lienholder must give a receipt to the

  4  towing or storage company indicating any loss or damage to the

  5  vessel or to the contents of the vessel.

  6         (i)(e)  A defendant, in the court's discretion, may be

  7  required to serve all or any portion of a term of imprisonment

  8  to which the defendant has been sentenced pursuant to this

  9  section in a residential alcoholism treatment program or a

10  residential drug abuse treatment program. Any time spent in

11  such a program must be credited by the court toward the term

12  of imprisonment.

13

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

15  violation of s. 316.193, a previous conviction for the

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

17  s. 316.028, or a previous conviction outside this state for

18  driving under the influence, driving while intoxicated,

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

20  unlawful breath-alcohol level, or any other similar

21  alcohol-related or drug-related traffic offense, is also

22  considered a previous conviction for violation of this

23  section.

24         Section 3.  Paragraph (a) of subsection (1) of section

25  327.352, Florida Statutes, is amended to read:

26         327.352  Breath, blood, and urine tests for alcohol,

27  chemical substances, or controlled substances; implied

28  consent; right to refuse.--

29         (1)(a)  Any person who accepts the privilege extended

30  by the laws of this state of operating a vessel within this

31  state is, by so operating such vessel, deemed to have given

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  1  his or her consent to submit to an approved chemical test or

  2  physical test including, but not limited to, an infrared light

  3  test of his or her breath for the purpose of determining the

  4  alcoholic content of his or her blood or breath, and to a

  5  urine test for the purpose of detecting the presence of

  6  chemical substances as set forth in s. 877.111 or controlled

  7  substances, if the person is lawfully arrested for any offense

  8  allegedly committed while the person was operating a vessel

  9  while under the influence of alcoholic beverages, chemical

10  substances, or controlled substances.  The chemical or

11  physical breath test must be incidental to a lawful arrest and

12  administered at the request of a law enforcement officer who

13  has reasonable cause to believe such person was operating the

14  vessel within this state while under the influence of

15  alcoholic beverages. The urine test must be incidental to a

16  lawful arrest and administered at a detention facility or any

17  other facility, mobile or otherwise, which is equipped to

18  administer such tests at the request of a law enforcement

19  officer who has reasonable cause to believe such person was

20  operating a vessel within this state while under the influence

21  of controlled substances. The urine test shall be administered

22  at a detention facility or any other facility, mobile or

23  otherwise, which is equipped to administer such tests in a

24  reasonable manner that will ensure the accuracy of the

25  specimen and maintain the privacy of the individual involved.

26  The administration of one type of test does not preclude the

27  administration of another type of test.  The person shall be

28  told that his or her failure to submit to any lawful test of

29  his or her breath or urine, or both, subjects the person to a

30  $500 civil penalty, and such failure is admissible into

31  evidence in any criminal proceeding.

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  1         Section 4.  This act shall take effect upon becoming a

  2  law.

  3

  4            *****************************************

  5                          SENATE SUMMARY

  6    Provides for the impoundment or immobilization of a
      vehicle or vessel when the operator is under the
  7    influence of drugs or alcohol. Provides for the
      impoundment or immobilization of other vehicles owned by
  8    the defendant. Provides circumstances under which the
      court order to impound or immobilize the vehicle or
  9    vessel must be dismissed. Provides that a person who
      fails to submit to a chemical test under the implied
10    consent law must be told that such failure subjects the
      person to a $500 civil penalty.
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