Senate Bill 1794c2

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    Florida Senate - 1998           CS for CS for SB's 1794 & 2200

    By the Committees on Transportation, Natural Resources and
    Senators Burt and Clary




    306-2036-98

  1                      A bill to be entitled

  2         An act relating to boating safety and emergency

  3         responses; amending s. 316.003, F.S.;

  4         redefining the term "authorized emergency

  5         vehicles" to include reference to vehicles of

  6         the Department of Environmental Protection;

  7         amending s. 327.02, F.S.; redefining the term

  8         "operate" with respect to vessels; amending s.

  9         327.03, F.S.; directing the Department of

10         Highway Safety and Motor Vehicles to keep

11         certain records and perform certain duties;

12         amending s. 327.352, F.S.; revising provisions

13         with respect to the operation of a vessel while

14         under the influence; providing legislative

15         intent; restoring a penalty for refusal to

16         submit to chemical or physical testing;

17         conforming provisions relating to boating under

18         the influence to driving under the influence;

19         creating s. 327.35215, F.S.; restoring a

20         penalty for refusal to submit to chemical

21         testing; amending s. 327.50, F.S.; revising

22         language with respect to vessel safety

23         regulations and equipment and lighting

24         requirements to clarify responsibility for

25         compliance; creating s. 327.355, F.S.;

26         prohibiting the operation of vessels by persons

27         under 21 years of age who have consumed

28         alcoholic beverages; providing penalties;

29         defining the term "conviction" for purposes of

30         the section; amending s. 327.731, F.S.;

31         increasing the number of convictions necessary

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    Florida Senate - 1998           CS for CS for SB's 1794 & 2200
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  1         for mandatory education; clarifying compliance

  2         procedures; amending s. 327.35, F.S.; providing

  3         legislative intent; providing effective dates.

  4

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

  6

  7         Section 1.  Subsection (1) of section 316.003, Florida

  8  Statutes, is amended to read:

  9         316.003  Definitions.--The following words and phrases,

10  when used in this chapter, shall have the meanings

11  respectively ascribed to them in this section, except where

12  the context otherwise requires:

13         (1)  AUTHORIZED EMERGENCY VEHICLES.--Vehicles of the

14  fire department (fire patrol), police vehicles, and such

15  ambulances and emergency vehicles of municipal departments,

16  public service corporations operated by private corporations,

17  the Department of Environmental Protection, and the Department

18  of Transportation as are designated or authorized by their

19  respective the department or the chief of police of an

20  incorporated city or any sheriff of any of the various

21  counties.

22         Section 2.  Subsection (24) of section 327.02, Florida

23  Statutes, is amended to read:

24         327.02  Definitions of terms used in this chapter and

25  in chapter 328.--As used in this chapter and in chapter 328,

26  unless the context clearly requires a different meaning, the

27  term:

28         (24)  "Operate" means to be in charge of or in command

29  of or in the actual physical control of a vessel upon the

30  waters of this state, or to exercise control over or to have

31  responsibility for a vessel's navigation or safety while the

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    Florida Senate - 1998           CS for CS for SB's 1794 & 2200
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  1  vessel is underway upon the waters of this state, or to

  2  control or steer a vessel being towed by another vessel upon

  3  the waters of the state; provided, however, that this

  4  definition shall not apply to a person on a vessel that is

  5  docked or otherwise made fast to the shore and shall not apply

  6  to a vessel owner or operator who designates a driver pursuant

  7  to s. 327.35.

  8         Section 3.  Effective April 1, 1999, subsection (2) of

  9  section 327.03, Florida Statutes, is amended to read:

10         327.03  Administration of vessel registration and

11  titling laws; records.--

12         (2)  The Department of Highway Safety and Motor

13  Vehicles shall keep records and perform such other clerical

14  duties as required pertaining to:

15         (a)  Vessel registration and titling as required.

16         (b)  Suspension of the vessel operating privilege under

17  ss. 327.35-327.355.

18         Section 4.  Paragraphs (a) and (c) of subsection (1) of

19  section 327.352, Florida Statutes, are amended to read:

20         327.352  Breath, blood, and urine tests for alcohol,

21  chemical substances, or controlled substances; implied

22  consent; right to refuse.--

23         (1)(a)  The Legislature declares that the operation of

24  a vessel is a privilege that must be exercised in a reasonable

25  manner. In order to protect the public health and safety, it

26  is essential that a lawful and effective means of reducing the

27  incidence of boating while impaired or intoxicated be

28  established. Therefore, any person who accepts the privilege

29  extended by the laws of this state of operating a vessel

30  within this state is, by so operating such vessel, deemed to

31  have given his or her consent to submit to an approved

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    Florida Senate - 1998           CS for CS for SB's 1794 & 2200
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  1  chemical test or physical test including, but not limited to,

  2  an infrared light test of his or her breath for the purpose of

  3  determining the alcoholic content of his or her blood or

  4  breath, and to a urine test for the purpose of detecting the

  5  presence of chemical substances as set forth in s. 877.111 or

  6  controlled substances, if the person is lawfully arrested for

  7  any offense allegedly committed while the person was operating

  8  a vessel while under the influence of alcoholic beverages,

  9  chemical substances, or controlled substances.  The chemical

10  or physical breath test must be incidental to a lawful arrest

11  and administered at the request of a law enforcement officer

12  who has reasonable cause to believe such person was operating

13  the vessel within this state while under the influence of

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

15  lawful arrest and administered at a detention facility or any

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

17  administer such tests at the request of a law enforcement

18  officer who has reasonable cause to believe such person was

19  operating a vessel within this state while under the influence

20  of controlled substances. The urine test shall be administered

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

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

23  reasonable manner that will ensure the accuracy of the

24  specimen and maintain the privacy of the individual involved.

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

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

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

28  his or her breath or urine, or both, will result in a civil

29  penalty of $500. The refusal to submit to a chemical or

30  physical breath or urine test upon the request of a law

31

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    Florida Senate - 1998           CS for CS for SB's 1794 & 2200
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  1  enforcement officer as provided in this section is admissible

  2  into evidence in any criminal proceeding.

  3         (c)  Any person who accepts the privilege extended by

  4  the laws of this state of operating a vessel within this state

  5  is, by operating such vessel, deemed to have given his or her

  6  consent to submit to an approved blood test for the purpose of

  7  determining the alcoholic content of the blood or a blood test

  8  for the purpose of determining the presence of chemical

  9  substances or controlled substances as provided in this

10  section if there is reasonable cause to believe the person was

11  operating a vessel while under the influence of alcoholic

12  beverages or chemical or controlled substances and the person

13  appears for treatment at a hospital, clinic, or other medical

14  facility and the administration of a breath or urine test is

15  impractical or impossible. As used in this paragraph, the term

16  "other medical facility" includes an ambulance or other

17  medical emergency vehicle. The blood test shall be performed

18  in a reasonable manner.  Any person who is incapable of

19  refusal by reason of unconsciousness or other mental or

20  physical condition is deemed not to have withdrawn his or her

21  consent to such test. Any person who is capable of refusal

22  shall be told that his or her failure to submit to such a

23  blood test will result in a civil penalty of $500. The refusal

24  to submit to a blood test upon the request of a law

25  enforcement officer shall be admissible in evidence in any

26  criminal proceeding.

27         Section 5.  Section 327.35215, Florida Statutes, is

28  created to read:

29         327.35215  Penalty for failure to submit to test.--

30         (1)  A person who is lawfully arrested for an alleged

31  violation of s. 327.35 and who refuses to submit to a blood

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    Florida Senate - 1998           CS for CS for SB's 1794 & 2200
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  1  test, breath test, or urine test pursuant to s. 327.352 is

  2  subject to a civil penalty of $500.

  3         (2)  When a person refuses to submit to a blood test,

  4  breath test, or urine test pursuant to s. 327.352, a law

  5  enforcement officer who is authorized to make arrests for

  6  violations of this chapter shall file with the clerk of the

  7  court, on a form provided by the department, a certified

  8  statement that probable cause existed to arrest the person for

  9  a violation of s. 327.35 and that the person refused to submit

10  to a test as required by s. 327.352. Along with the statement,

11  the officer must also submit a sworn statement on a form

12  provided by the department that the person has been advised of

13  both the penalties for failure to submit to the blood, breath,

14  or urine test and the procedure for requesting a hearing.

15         (3)  A person who has been advised of the penalties

16  pursuant to subsection (2) may, within 30 days afterwards,

17  request a hearing before a county court judge. A request for a

18  hearing tolls the period for payment of the civil penalty,

19  and, if assessment of the civil penalty is sustained by the

20  hearing and any subsequent judicial review, the civil penalty

21  must be paid within 30 days after final disposition. The clerk

22  of the court shall notify the department of the final

23  disposition of all actions filed under this section.

24         (4)  It is unlawful for any person who has not paid a

25  civil penalty imposed pursuant to this section, or who has not

26  requested a hearing with respect to the civil penalty, within

27  30 calendar days after receipt of notice of the civil penalty

28  to operate a vessel upon the waters of this state. Violation

29  of this subsection is a misdemeanor of the first degree,

30  punishable as provided in s. 775.082 or s. 775.083.

31

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    Florida Senate - 1998           CS for CS for SB's 1794 & 2200
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  1         (5)  Moneys collected by the clerk of the court

  2  pursuant to this section shall be disposed of in the following

  3  manner:

  4         (a)  If the arresting officer was employed or appointed

  5  by a state law enforcement agency except the Game and Fresh

  6  Water Fish Commission, the moneys shall be deposited into the

  7  Marine Resources Conservation Trust Fund.

  8         (b)  If the arresting officer was employed or appointed

  9  by a county or municipal law enforcement agency, the moneys

10  shall be deposited into the law enforcement trust fund of that

11  agency.

12         (c)  If the arresting officer was employed or appointed

13  by the Game and Fresh Water Fish Commission, the money shall

14  be deposited into the State Game Trust Fund.

15         Section 6.  Section 327.50, Florida Statutes, is

16  amended to read:

17         327.50  Vessel safety regulations; equipment and

18  lighting requirements.--

19         (1)(a)  The owner and operator of every vessel on the

20  waters of this state shall carry, store, maintain, and use

21  safety equipment in accordance with current United States

22  Coast Guard safety equipment requirements as specified in the

23  Code of Federal Regulations, unless expressly exempted by the

24  department state law.

25         (b)  No person shall operate a vessel less than 26 feet

26  in length on the waters of this state unless every person

27  under 6 years of age on board the a motorboat, sailboat, or

28  vessel is wearing which measures less than 26 feet in length

29  shall wear a type I, type II, or type III Coast Guard approved

30  personal flotation device while such motorboat, sailboat, or

31  vessel is underway.  For the purpose of this section,

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    Florida Senate - 1998           CS for CS for SB's 1794 & 2200
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  1  "underway" shall mean at all times except when a motorboat,

  2  sailboat, or vessel is anchored, moored, made fast to the

  3  shore, or aground.

  4         (2)  No person shall operate a vessel on the waters of

  5  this state unless said vessel is equipped with properly

  6  serviceable Every vessel on the waters of this state shall

  7  display the lights and shapes required by the navigation

  8  rules.

  9         (3)  The use of sirens or flashing, occulting, or

10  revolving red or blue emergency lights on any vessel is

11  prohibited, except as expressly provided in the navigation

12  rules or annexes thereto on a vessel operated by a law

13  enforcement officer or fire protection officer in the

14  performance of his or her official duties or on a vessel

15  engaged in emergency rescue activity.

16         Section 7.  Section 327.355, Florida Statutes, is

17  created to read:

18         327.355  Operation of vessels by persons under 21 years

19  of age who have consumed alcoholic beverages.--

20         (1)(a)  Notwithstanding s. 327.35, it is unlawful for a

21  person under the age of 21 who has a breath-alcohol level of

22  0.02 percent or higher to operate or be in actual physical

23  control of a vessel.

24         (b)  A law enforcement officer who has probable cause

25  to believe that a vessel is being operated by or is in the

26  actual physical control of a person who is under the age of 21

27  while under the influence of alcoholic beverages or who has

28  any breath-alcohol level may lawfully detain such a person and

29  may request that person to submit to a test to determine his

30  or her breath-alcohol level. If the person under the age of 21

31  refuses to submit to such testing, the law enforcement officer

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    Florida Senate - 1998           CS for CS for SB's 1794 & 2200
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  1  shall warn the person that failure to submit to the breath

  2  test will result in the required performance of 50 hours of

  3  public service and that his or her vessel operating privilege

  4  will be suspended until the public service is performed.

  5  Failure or refusal to submit to a breath test after this

  6  warning is a violation of this section.

  7         (2)  Any person under the age of 21 who accepts the

  8  privilege extended by the laws of this state of operating a

  9  vessel upon the waters of this state, by so operating such

10  vessel, is deemed to have expressed his or her consent to the

11  provisions of this section.

12         (3)  A breath test to determine breath-alcohol level

13  pursuant to this section may be conducted as authorized by s.

14  316.1932 or s. 327.352, or by a preliminary alcohol screening

15  test device listed in the United States Department of

16  Transportation's conforming-product list of evidential

17  breath-measurement devices. The reading from such a device is

18  admissible in evidence in any trial or hearing.

19         (4)  A violation of this section is a noncriminal

20  infraction and being detained pursuant to this section does

21  not constitute an arrest. This section does not bar

22  prosecution under s. 327.35 and the penalties provided herein

23  shall be imposed in addition to any other penalty provided for

24  boating under the influence or for refusal to submit to

25  testing.

26         (5)  Any person who is convicted of a violation of

27  subsection (1) shall be punished as follows:

28         (a)  The court shall order the defendant to participate

29  in public service or a community work project for a minimum of

30  50 hours;

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  1         (b)  The court shall order the defendant to refrain

  2  from operating any vessel until the 50 hours of public service

  3  or community work has been performed; and

  4         (c)  Enroll in, attend, and successfully complete a

  5  boating safety course that meets minimum standards established

  6  by the department by rule.

  7         (6)  For the purposes of this section, "conviction"

  8  means a finding of guilt or the acceptance of a plea of guilty

  9  or nolo contendere, regardless of whether or not adjudication

10  was withheld. Notwithstanding the provisions of s. 948.01, no

11  court may suspend, defer, or withhold imposition of sentence

12  for any violation of this section. Any person who operates any

13  vessel on the waters of this state while his or her vessel

14  operating privilege is suspended pursuant to this section

15  commits a misdemeanor of the first degree, punishable as

16  provided in s. 775.082 or s. 775.083.

17         Section 8.  Effective October 1, 1998, section 327.731,

18  Florida Statutes, is amended to read:

19         327.731  Mandatory education for violators.--

20         (1)  Every The court shall require any person convicted

21  of a criminal violation of this chapter, every any person

22  convicted of a noncriminal infraction under this chapter if

23  the infraction resulted in a reportable boating accident, and

24  every any person convicted of two a noncriminal infractions

25  infraction as defined in s. 327.73(1)(h) through (k), (m)

26  through (p), (s), and (t), said infractions occurring within a

27  12-month period, must (f) through (n), excepting (j), to:

28         (a)  Enroll in, attend, and successfully complete, at

29  his or her own expense, a boating safety course that meets

30  minimum standards established by the department by rule;

31  however, the department may provide by rule for waivers of the

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    Florida Senate - 1998           CS for CS for SB's 1794 & 2200
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  1  attendance requirement for violators residing in areas where

  2  classroom presentation of the course is not available;

  3         (b)  File with the court and the department within 90

  4  days proof of successful completion of the course;

  5         (c)  Refrain from operating a vessel until he or she

  6  has filed the proof of successful completion of the course

  7  with the court and the department.

  8

  9  Any person who has successfully completed an approved boating

10  course shall be exempt from these provisions upon showing

11  proof to the court and the department as specified in

12  paragraph (b).

13         (2)  For the purposes of this section, "conviction"

14  means a finding of guilt, or the acceptance of a plea of

15  guilty or nolo contendere, regardless of whether or not

16  adjudication was withheld or whether imposition of sentence

17  was withheld, deferred, or suspended.  Any person who operates

18  a vessel on the waters of this state in violation of the

19  provisions of this section is guilty of a misdemeanor of the

20  second degree, punishable as provided in s. 775.082 or s.

21  775.083.

22         (3)  The department shall print on the reverse side of

23  the defendant's copy of the boating citation a notice of the

24  provisions of this section. Upon conviction, the clerk of the

25  court shall notify the defendant that it is unlawful for him

26  or her to operate any vessel until he or she has complied with

27  this section, but failure of the clerk of the court to provide

28  such a notice shall not be a defense to a charge of unlawful

29  operation of a vessel under subsection (2).

30         Section 9.  Subsection (10) is added to section 327.35,

31  Florida Statutes, to read:

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  1         327.35  Boating under the influence; penalties.--

  2         (10)  It is the intent of the Legislature to encourage

  3  boaters to have a "designated driver" who does not consume

  4  alcoholic beverages.

  5         Section 10.  Except as otherwise provided in this act,

  6  this act shall take effect upon becoming a law.

  7

  8          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  9                    CS for SB's 1794 and 2200

10

11  Clarifies the definition of "operates."

12  Requires the Department of Highway Safety and Motor Vehicles
    to keep records of suspended vessel operating privileges
13  starting April 1, 1999.

14  Provides 50 hours of public service for persons operating a
    vessel who are under 21 years of age and refuse to submit to a
15  breath-alcohol test. A breath-alcohol level of 0.02 percent or
    higher is unlawful.
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