House Bill 3265c1

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    Florida House of Representatives - 1998             CS/HB 3265

        By the Committee on Law Enforcement & Public Safety and
    Representatives Ziebarth and Heyman





  1                      A bill to be entitled

  2         An act relating to boater safety; creating s.

  3         327.35215, F.S.; providing penalties for

  4         failure to submit to a breath test or urine

  5         test; creating s. 327.35216, F.S.; providing

  6         for the suspension of the privilege to operate

  7         a vessel for persons who are under 21 years of

  8         age under certain circumstances; amending s.

  9         327.395, F.S.; revising language with respect

10         to boater safety identification cards issued by

11         the Department of Environmental Protection;

12         providing an effective date.

13

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

15

16         Section 1.  Section 327.35215, Florida Statutes, is

17  created to read:

18         327.35215  Penalty for failure to submit to test.--

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

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

21  test, breath test, or urine test pursuant to s. 327.352 is

22  subject to a civil penalty of $500.

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

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

25  enforcement officer who is authorized to make arrests for

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

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

28  statement that probable cause existed to arrest the person for

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

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

31  the officer must also submit to a sworn statement on a form

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

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

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

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

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

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

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

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

  9  hearing and any subsequent judicial review, the civil penalty

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

11  of the court shall notify the department of the final

12  disposition of all actions filed under this section.

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

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

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

16  30 calendar days after receipt of notice of the civil penalty

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

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

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

20         (5)  Moneys collected by the clerk of the court

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

22  manner:

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

24  by a state law enforcement agency, the moneys shall be

25  deposited into the Marine Resources Conservation Trust Fund.

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

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

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

29  agency.

30         Section 2.  Section 327.35216, Florida Statutes, is

31  created to read:

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  1         327.35216  Suspension of privilege to operate vessel;

  2  persons under 21 years of age; right to review.--

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

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

  5  0.02 or higher to operate or be in actual physical control of

  6  a vessel.

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

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

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

10  while under the influence of alcoholic beverages or who has

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

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

13  or her breath-alcohol level.

14         (2)(a)  A law enforcement officer shall, on behalf of

15  the department, suspend the privilege of such person to

16  operate a vessel if the person has a blood-alcohol or

17  breath-alcohol level of 0.02 or higher.  The officer shall

18  also suspend, on behalf of the department, the operating

19  privilege of a person who has refused to submit to a test as

20  provided by paragraph (b). The officer shall take the person's

21  boater safety identification card and shall issue the person a

22  notice of suspension.

23         (b)  The suspension under paragraph (a) must be

24  pursuant to, and the notice of suspension must inform the

25  operator of, the following:

26         1.a.  The operator refused to submit to a lawful breath

27  test and his or her vessel operating privilege is suspended

28  for a period of 1 year for a first refusal or for a period of

29  18 months if his or her operating privilege has been

30  previously suspended as provided in this section as a result

31  of a refusal to submit to a test; or

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  1         b.  The operator was under the age of 21 and was

  2  operating or in actual physical control of a vessel while

  3  having a blood-alcohol or breath-alcohol level of 0.02 or

  4  higher; and the person's operating privilege is suspended for

  5  a period of 6 months for a first violation, or for a period of

  6  1 year if his or her operating privilege has been previously

  7  suspended as provided in this section for operating or being

  8  in actual physical control of a vessel with a blood-alcohol or

  9  breath-alcohol level of 0.02 or higher.

10         2.  The suspension period commences on the date of

11  issuance of the notice of suspension.

12         3.  The operator may request a formal or informal

13  review of the suspension by the department within 10 days

14  after the issuance of the notice of suspension.

15         4.  The operator may submit to the department any

16  materials relevant to the suspension of his or her

17  identification card.

18         (3)  The law enforcement officer shall forward to the

19  department, within 5 days after the date of the issuance of

20  the notice of suspension, a copy of the notice of suspension,

21  the boater safety identification card of the person receiving

22  the notice of suspension, and an affidavit stating the

23  officer's grounds for belief that the person was under the age

24  of 21 and was operating or in actual physical control of a

25  vessel with any breath-alcohol level, and the results of any

26  breath test or an affidavit stating that a breath test was

27  requested by a law enforcement officer and that the person

28  refused to submit to such test. The failure of the officer to

29  submit materials within the 5-day period specified in this

30  subsection does not bar the department from considering any

31  materials submitted at or before the hearing.

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  1         (4)  If the department finds that the boater safety

  2  identification card of the person should be suspended under

  3  this section and if the notice of suspension has not already

  4  been served upon the person by a law enforcement officer as

  5  provided in subsection (2), the department shall issue a

  6  notice of suspension.

  7         (5)  If the person whose boater safety identification

  8  card is suspended requests an informal review under

  9  subparagraph (2)(b)3., the department shall conduct the

10  informal review by a hearing officer employed by the

11  department within 30 days after the request is received by the

12  department. The informal review hearing must consist solely of

13  an examination by the department of the materials submitted by

14  a law enforcement officer and by the person whose boater

15  safety identification card and privilege to operate a vessel

16  are suspended, and the presence of an officer or witness is

17  not required.

18         (6)  After completion of the informal review, notice of

19  the department's decision sustaining, amending, or

20  invalidating the suspension of the boater safety

21  identification card and privilege to operate a vessel must be

22  provided to the person. The notice must be mailed to the

23  person at the last known address shown on the department's

24  records, or to the address provided in the law enforcement

25  officer's report if such address differs from the address of

26  record, within 7 days after completing the review.

27         (7)(a)  If the person whose boater safety

28  identification card and privilege to operate a vessel is

29  suspended requests a formal review, the department must

30  schedule a hearing to be held within 30 days after the request

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  1  is received by the department and must notify the person of

  2  the date, time, and place of the hearing.

  3         (b)  The formal review hearing must be held before a

  4  hearing officer employed by the department, and the hearing

  5  officer may administer oaths, examine witnesses and take

  6  testimony, receive relevant evidence, issue subpoenas,

  7  regulate the course and conduct of the hearing, and make a

  8  ruling on the suspension. The department and the person whose

  9  boater safety identification card and privilege to operate a

10  vessel were suspended may subpoena witnesses, and the party

11  requesting the presence of a witness is responsible for paying

12  any witness fees and for notifying in writing the state

13  attorney's office in the appropriate circuit of the issuance

14  of the subpoena. If the person who requests a formal review

15  hearing fails to appear and the hearing officer finds the

16  failure to be without just cause, the right to a formal

17  hearing is waived and the suspension is sustained.

18         (c)  A party may seek enforcement of a subpoena under

19  paragraph (b) by filing a petition for enforcement in the

20  circuit court of the judicial circuit in which the person

21  failing to comply with the subpoena resides. A failure to

22  comply with an order of the court constitutes contempt of

23  court. However, a person may not be held in contempt while a

24  subpoena is being challenged.

25         (d)  The department must, within 7 days after a formal

26  review hearing, send notice to the person of the hearing

27  officer's decision as to whether sufficient cause exists to

28  sustain, amend, or invalidate the suspension.

29         (8)  In a formal review hearing under subsection (7) or

30  an informal review hearing under subsection (5), the hearing

31  officer shall determine by a preponderance of the evidence

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  1  whether sufficient cause exists to sustain, amend, or

  2  invalidate the suspension. The scope of the review is limited

  3  to the following issues:

  4         (a)  If the boater safety identification card and

  5  privilege to operate a vessel were suspended because the

  6  individual, then under the age of 21, operated a vessel with a

  7  blood-alcohol or breath-alcohol level of 0.02 or higher:

  8         1.  Whether the law enforcement officer had probable

  9  cause to believe that the person was under the age of 21 and

10  was operating or in actual physical control of a vessel in

11  this state with any blood-alcohol or breath-alcohol level or

12  while under the influence of alcoholic beverages.

13         2.  Whether the person was under the age of 21.

14         3.  Whether the person had a blood-alcohol or

15  breath-alcohol level of 0.02 or higher.

16         (b)  If the boater safety identification card and

17  privilege to operate a vessel were suspended because of the

18  individual's refusal to submit to a breath test:

19         1.  Whether the law enforcement officer had probable

20  cause to believe that the person was under the age of 21 and

21  was operating or in actual physical control of a vessel in

22  this state with any blood-alcohol or breath-alcohol level or

23  while under the influence of alcoholic beverages.

24         2.  Whether the person was under the age of 21.

25         3.  Whether the person refused to submit to a breath

26  test after being requested to do so by a law enforcement

27  officer.

28         4.  Whether the person was told that if he or she

29  refused to submit to a breath test his or her privilege to

30  operate a vessel would be suspended for a period of 1 year or,

31

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  1  in the case of a second or subsequent refusal, for a period of

  2  18 months.

  3         (9)  Based on the determination of the hearing officer

  4  under subsection (8) for both informal hearings under

  5  subsection (5) and formal hearings under subsection (7), the

  6  department shall:

  7         (a)  Sustain the suspension of the person's privilege

  8  to operate a vessel for a period of 1 year for a first

  9  refusal, or for a period of 18 months if the operating

10  privilege of the person has been previously suspended, as

11  provided in this section, as a result of a refusal to submit

12  to a test. The suspension period commences on the date of the

13  issuance of the notice of suspension.

14         (b)  Sustain the suspension of the person's privilege

15  to operate a vessel for a period of 6 months for operating or

16  being in actual physical control of a vessel while under the

17  age of 21 with a blood-alcohol or breath-alcohol level of 0.02

18  or higher, or for a period of 1 year if the operating

19  privilege of such person has been previously suspended as a

20  result of operating a vessel while under the age of 21 with a

21  breath-alcohol level of at least 0.02 but less than 0.08. The

22  suspension period commences on the date of the issuance of the

23  notice of suspension.

24         (10)  A request for a formal review hearing or an

25  informal review hearing shall not stay the suspension of the

26  person's privilege to operate a vessel. If the department

27  fails to schedule the formal review hearing to be held within

28  30 days after receipt of the request therefor, the department

29  shall invalidate the suspension.

30         (11)  The  formal review hearing may be conducted upon

31  a review of the reports of a law enforcement officer,

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  1  including documents relating to the administration of a breath

  2  test or the refusal to take a test. However, as provided in

  3  subsection (7), the operator may subpoena the officer or any

  4  person who administered a breath test.

  5         (12)  The formal review hearing and the informal review

  6  hearing are exempt from chapter 120. The department may adopt

  7  rules for conducting reviews under this section.

  8         (13)  A person may appeal any decision of the

  9  department sustaining a suspension of his or her privilege to

10  operate a vessel by a petition for writ of certiorari to the

11  circuit court in the county wherein such person resides or

12  wherein a formal or informal review was conducted. However, an

13  appeal does not stay the suspension. This subsection does not

14  provide for a de novo appeal.

15         (14)  By applying for and accepting and using a boater

16  safety identification card, a person under the age of 21 years

17  who holds the card is deemed to have expressed his or her

18  consent to the provisions of this section.

19         (15)  A breath test to determine breath-alcohol level

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

21  316.1932 or by a preliminary alcohol screening test device

22  listed in the United States Department of Transportation's

23  conforming-product list of evidential breath-measurement

24  devices. The reading from such a device is presumed accurate

25  and is admissible in evidence in any administrative hearing

26  conducted under this section.

27         (16)  A violation of this section is neither a boating

28  infraction nor a criminal offense, nor does being detained

29  pursuant to this section constitute an arrest. A violation of

30  this section is subject to the administrative action

31  provisions of this section, which are administered by the

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  1  department through its administrative processes.

  2  Administrative actions taken pursuant to this section shall be

  3  recorded in the boating records maintained by the department.

  4  This section does not bar prosecution under s. 327.35.

  5         Section 3.  Subsection (1) of section 327.395, Florida

  6  Statutes, is amended to read:

  7         327.395  Boater Boating safety identification cards.--

  8         (1)  Until October 1, 2001, a person born after

  9  September 30, 1980, and on or after October 1, 2001, a person

10  21 years of age or younger may not operate a vessel powered by

11  a motor of 10 horsepower or greater unless the such person is

12  16 years of age or older and has in his or her possession

13  aboard the vessel photographic identification and a boater

14  safety identification card issued by the department which

15  shows that he or she has:

16         (a)  Completed a department-approved boater education

17  course that meets the minimum 8-hour instruction requirement

18  established by the National Association of State Boating Law

19  Administrators and which includes a written examination

20  covering waterway safety, waterway rules of operation, safety

21  equipment (as required by the Coast Guard), first aid, and

22  CPR;

23         (b)  Passed a course equivalency examination approved

24  by the department; or

25         (c)  Passed a temporary certificate examination

26  developed or approved by the department.

27         Section 4.  This act shall take effect October 1 of the

28  year in which enacted.

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30

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