House Bill 3265c2

CODING: Words stricken are deletions; words underlined are additions.







    Florida House of Representatives - 1998          CS/CS/HB 3265

        By the Committees on General Government Appropriations,
    Law Enforcement & Public Safety and Representatives Ziebarth,
    Heyman and Wiles




  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 language

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

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1998          CS/CS/HB 3265

    610-132-98






  1         for mandatory education; clarifying compliance

  2         procedures; providing effective dates.

  3

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

  5

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

  7  Statutes, is amended to read:

  8         316.003  Definitions.--The following words and phrases,

  9  when used in this chapter, shall have the meanings

10  respectively ascribed to them in this section, except where

11  the context otherwise requires:

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

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

14  ambulances and emergency vehicles of municipal departments,

15  public service corporations operated by private corporations,

16  the Department of Environmental Protection, and the Department

17  of Transportation as are designated or authorized by their

18  respective the department or the chief of police of an

19  incorporated city or any sheriff of any of the various

20  counties.

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

22  Statutes, is amended to read:

23         327.02  Definitions of terms used in this chapter and

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

25  unless the context clearly requires a different meaning, the

26  term:

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

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

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

30  responsibility for a vessel's navigation or safety upon the

31  waters of this state, or to control or steer a vessel being

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1998          CS/CS/HB 3265

    610-132-98






  1  towed by another vessel upon the waters of the state; however,

  2  this definition shall not apply to a person on a vessel that

  3  is docked or otherwise made fast to the shore.

  4         Section 3.  Subsection (2) of section 327.03, Florida

  5  Statutes, is amended to read:

  6         327.03  Administration of vessel registration and

  7  titling laws; records.--

  8         (2)  The Department of Highway Safety and Motor

  9  Vehicles shall keep records and perform such other clerical

10  duties as required pertaining to:

11         (a)  Vessel registration and titling as required.

12         (b)  Suspension of the vessel operating privilege under

13  ss. 327.35-327.355.

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

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

16         327.352  Breath, blood, and urine tests for alcohol,

17  chemical substances, or controlled substances; implied

18  consent; right to refuse.--

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

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

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

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

23  incidence of boating while impaired or intoxicated be

24  established. Therefore, any person who accepts the privilege

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

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

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

28  chemical test or physical test including, but not limited to,

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

30  determining the alcoholic content of his or her blood or

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

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1998          CS/CS/HB 3265

    610-132-98






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

  2  controlled substances, if the person is lawfully arrested for

  3  any offense allegedly committed while the person was operating

  4  a vessel while under the influence of alcoholic beverages,

  5  chemical substances, or controlled substances.  The chemical

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

  7  and administered at the request of a law enforcement officer

  8  who has reasonable cause to believe such person was operating

  9  the vessel within this state while under the influence of

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

11  lawful arrest and administered at a detention facility or any

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

13  administer such tests at the request of a law enforcement

14  officer who has reasonable cause to believe such person was

15  operating a vessel within this state while under the influence

16  of controlled substances. The urine test shall be administered

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

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

19  reasonable manner that will ensure the accuracy of the

20  specimen and maintain the privacy of the individual involved.

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

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

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

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

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

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

27  enforcement officer as provided in this section is admissible

28  into evidence in any criminal proceeding.

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

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

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

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1998          CS/CS/HB 3265

    610-132-98






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

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

  3  for the purpose of determining the presence of chemical

  4  substances or controlled substances as provided in this

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

  6  operating a vessel while under the influence of alcoholic

  7  beverages or chemical or controlled substances and the person

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

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

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

11  "other medical facility" includes an ambulance or other

12  medical emergency vehicle. The blood test shall be performed

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

14  refusal by reason of unconsciousness or other mental or

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

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

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

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

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

20  enforcement officer shall be admissible in evidence in any

21  criminal proceeding.

22         Section 5.  Section 327.35215, Florida Statutes, is

23  created to read:

24         327.35215  Penalty for failure to submit to test.--

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

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

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

28  subject to a civil penalty of $500.

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

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

31  enforcement officer who is authorized to make arrests for

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1998          CS/CS/HB 3265

    610-132-98






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

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

  3  statement that probable cause existed to arrest the person for

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

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

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

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

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

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

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

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

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

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

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

15  hearing and any subsequent judicial review, the civil penalty

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

17  of the court shall notify the department of the final

18  disposition of all actions filed under this section.

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

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

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

22  30 calendar days after receipt of notice of the civil penalty

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

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

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

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

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

28  manner:

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

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

31

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1998          CS/CS/HB 3265

    610-132-98






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

  2  Marine Resources Conservation Trust Fund.

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

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

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

  6  agency.

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

  8  by the Game and Fresh Water Fish Commission, the moneys shall

  9  be deposited in the State Game Trust Fund.

10         Section 6.  Section 327.50, Florida Statutes, is

11  amended to read:

12         327.50  Vessel safety regulations; equipment and

13  lighting requirements.--

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

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

16  safety equipment in accordance with current United States

17  Coast Guard safety equipment requirements as specified in the

18  Code of Federal Regulations, unless expressly exempted by the

19  department state law.

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

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

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

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

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

25  personal flotation device while such motorboat, sailboat, or

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

27  "underway" shall mean at all times except when a motorboat,

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

29  shore, or aground.

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

31  this state unless said vessel is equipped with properly

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1998          CS/CS/HB 3265

    610-132-98






  1  serviceable Every vessel on the waters of this state shall

  2  display the lights and shapes required by the navigation

  3  rules.

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

  5  revolving red or blue emergency lights on any vessel is

  6  prohibited, except as expressly provided in the navigation

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

  8  enforcement officer or fire protection officer in the

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

10  engaged in emergency rescue activity.

11         Section 7.  Section 327.355, Florida Statutes, is

12  created to read:

13         327.355  Operation of vessels by persons under 21 years

14  of age who have consumed alcoholic beverages.--

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

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

17  0.02 percent or higher to operate or be in actual physical

18  control of a vessel.

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

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

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

22  while under the influence of alcoholic beverages or who has

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

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

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

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

27  shall warn the person that failure to submit to the breath

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

29  public service and that his or her vessel operating privilege

30  will be suspended until the public service is performed.

31

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1998          CS/CS/HB 3265

    610-132-98






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

  2  warning is a violation of this section.

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

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

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

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

  7  provisions of this section.

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

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

10  316.1932 or s. 327.352, or by a preliminary alcohol screening

11  test device listed in the United States Department of

12  Transportation's conforming-product list of evidential

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

14  admissible in evidence in any trial or hearing.

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

16  infraction and being detained pursuant to this section does

17  not constitute an arrest. This section does not bar

18  prosecution under s. 327.35 and the penalties provided herein

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

20  boating under the influence or for refusal to submit to

21  testing.

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

23  subsection (1) shall be punished as follows:

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

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

26  50 hours;

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

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

29  or community work has been performed; and

30

31

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1998          CS/CS/HB 3265

    610-132-98






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

  2  boating safety course that meets minimum standards established

  3  by the department by rule.

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

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

  6  or nolo contendere, regardless of whether or not adjudication

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

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

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

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

11  operating privilege is suspended pursuant to this section

12  commits a misdemeanor of the first degree, punishable as

13  provided in s. 775.082 or s. 775.083.

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

15  Florida Statutes, is amended to read:

16         327.731  Mandatory education for violators.--

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

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

19  convicted of a noncriminal infraction under this chapter if

20  the infraction resulted in a reportable boating accident, and

21  every any person convicted of two a noncriminal infractions

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

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

24  12-month period, must (f) through (n), excepting (j), to:

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

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

27  minimum standards established by the department by rule;

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

29  attendance requirement for violators residing in areas where

30  classroom presentation of the course is not available;

31

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1998          CS/CS/HB 3265

    610-132-98






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

  2  days proof of successful completion of the course;

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

  4  has filed the proof of successful completion of the course

  5  with the court and the department.

  6

  7  Any person who has successfully completed an approved boating

  8  course shall be exempt from these provisions upon showing

  9  proof to the court and the department as specified in

10  paragraph (b).

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

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

13  guilty or nolo contendere, regardless of whether or not

14  adjudication was withheld or whether imposition of sentence

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

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

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

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

19  775.083.

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

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

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

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

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

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

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

27  operation of a vessel under subsection (2).

28         Section 9.  Except as otherwise provided herein, this

29  act shall take effect upon becoming a law.

30

31

                                  11