House Bill 3265e2

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                                   CS/CS/HB 3265, Second Engrossed



  1                      A bill to be entitled

  2         An act relating to boating safety and emergency

  3         responses; creating the "Kelly Johnson Act";

  4         amending s. 316.003, F.S.; redefining the term

  5         "authorized emergency vehicles" to include

  6         reference to vehicles of the Department of

  7         Environmental Protection; amending s. 327.02,

  8         F.S.; redefining the term "operate" with

  9         respect to vessels; amending s. 327.03, F.S.;

10         directing the Department of Highway Safety and

11         Motor Vehicles to keep certain records and

12         perform certain duties; amending s. 327.352,

13         F.S.; revising provisions with respect to the

14         operation of a vessel while under the

15         influence; providing legislative intent;

16         restoring a penalty for refusal to submit to

17         chemical or physical testing; conforming

18         provisions relating to boating under the

19         influence to driving under the influence;

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

21         penalty for refusal to submit to chemical

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

23         language with respect to vessel safety

24         regulations and equipment and lighting

25         requirements to clarify responsibility for

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

27         prohibiting the operation of vessels by persons

28         under 21 years of age who have consumed

29         alcoholic beverages; providing penalties;

30         defining the term "conviction" for purposes of

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


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                                   CS/CS/HB 3265, Second Engrossed



  1         increasing the number of convictions necessary

  2         for mandatory education; clarifying compliance

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

  4         legislative intent; providing effective dates.

  5

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

  7

  8         Section 1.  Short title.--This act shall be known as

  9  the "Kelly Johnson Act."

10         Section 2.  Subsection (1) of section 316.003, Florida

11  Statutes, is amended to read:

12         316.003  Definitions.--The following words and phrases,

13  when used in this chapter, shall have the meanings

14  respectively ascribed to them in this section, except where

15  the context otherwise requires:

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

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

18  ambulances and emergency vehicles of municipal departments,

19  public service corporations operated by private corporations,

20  the Department of Environmental Protection, and the Department

21  of Transportation as are designated or authorized by their

22  respective the department or the chief of police of an

23  incorporated city or any sheriff of any of the various

24  counties.

25         Section 3.  Subsection (24) of section 327.02, Florida

26  Statutes, is amended to read:

27         327.02  Definitions of terms used in this chapter and

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

29  unless the context clearly requires a different meaning, the

30  term:

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                                   CS/CS/HB 3265, Second Engrossed



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

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

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

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

  5  vessel is underway upon the waters of this state, or to

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

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

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

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

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

11  to s. 327.35.

12         Section 4.  Effective January 1, 1999, subsection (2)

13  of section 327.03, Florida Statutes, is amended to read:

14         327.03  Administration of vessel registration and

15  titling laws; records.--

16         (2)  The Department of Highway Safety and Motor

17  Vehicles shall keep records and perform such other clerical

18  duties as required pertaining to:

19         (a)  Vessel registration and titling as required.

20         (b)  Suspension of the vessel operating privilege under

21  ss. 327.35-327.355.

22         Section 5.  Paragraphs (a) and (c) of subsection (1) of

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

24         327.352  Breath, blood, and urine tests for alcohol,

25  chemical substances, or controlled substances; implied

26  consent; right to refuse.--

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

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

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

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

31  incidence of boating while impaired or intoxicated be


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                                   CS/CS/HB 3265, Second Engrossed



  1  established. Therefore, any person who accepts the privilege

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

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

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

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

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

  7  determining the alcoholic content of his or her blood or

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

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

10  controlled substances, if the person is lawfully arrested for

11  any offense allegedly committed while the person was operating

12  a vessel while under the influence of alcoholic beverages,

13  chemical substances, or controlled substances.  The chemical

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

15  and administered at the request of a law enforcement officer

16  who has reasonable cause to believe such person was operating

17  the vessel within this state while under the influence of

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

19  lawful arrest and administered at a detention facility or any

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

21  administer such tests at the request of a law enforcement

22  officer who has reasonable cause to believe such person was

23  operating a vessel within this state while under the influence

24  of controlled substances. The urine test shall be administered

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

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

27  reasonable manner that will ensure the accuracy of the

28  specimen and maintain the privacy of the individual involved.

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

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

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


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                                   CS/CS/HB 3265, Second Engrossed



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

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

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

  4  enforcement officer as provided in this section is admissible

  5  into evidence in any criminal proceeding.

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

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

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

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

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

11  for the purpose of determining the presence of chemical

12  substances or controlled substances as provided in this

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

14  operating a vessel while under the influence of alcoholic

15  beverages or chemical or controlled substances and the person

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

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

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

19  "other medical facility" includes an ambulance or other

20  medical emergency vehicle. The blood test shall be performed

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

22  refusal by reason of unconsciousness or other mental or

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

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

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

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

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

28  enforcement officer shall be admissible in evidence in any

29  criminal proceeding.

30         Section 6.  Section 327.35215, Florida Statutes, is

31  created to read:


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                                   CS/CS/HB 3265, Second Engrossed



  1         327.35215  Penalty for failure to submit to test.--

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

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

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

  5  subject to a civil penalty of $500.

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

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

  8  enforcement officer who is authorized to make arrests for

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

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

11  statement that probable cause existed to arrest the person for

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

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

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

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

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

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

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

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

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

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

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

23  hearing and any subsequent judicial review, the civil penalty

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

25  of the court shall notify the department of the final

26  disposition of all actions filed under this section.

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

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

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

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

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


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                                   CS/CS/HB 3265, Second Engrossed



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

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

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

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

  5  manner:

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

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

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

  9  Marine Resources Conservation Trust Fund.

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

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

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

13  agency.

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

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

16  be deposited into the State Game Trust Fund.

17         Section 7.  Section 327.50, Florida Statutes, is

18  amended to read:

19         327.50  Vessel safety regulations; equipment and

20  lighting requirements.--

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

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

23  safety equipment in accordance with current United States

24  Coast Guard safety equipment requirements as specified in the

25  Code of Federal Regulations, unless expressly exempted by the

26  department state law.

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

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

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

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

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


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                                   CS/CS/HB 3265, Second Engrossed



  1  personal flotation device while such motorboat, sailboat, or

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

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

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

  5  shore, or aground.

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

  7  this state unless said vessel is equipped with properly

  8  serviceable Every vessel on the waters of this state shall

  9  display the lights and shapes required by the navigation

10  rules.

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

12  revolving red or blue emergency lights on any vessel is

13  prohibited, except as expressly provided in the navigation

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

15  enforcement officer or fire protection officer in the

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

17  engaged in emergency rescue activity.

18         Section 8.  Section 327.355, Florida Statutes, is

19  created to read:

20         327.355  Operation of vessels by persons under 21 years

21  of age who have consumed alcoholic beverages.--

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

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

24  0.02 percent or higher to operate or be in actual physical

25  control of a vessel.

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

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

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

29  while under the influence of alcoholic beverages or who has

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

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


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                                   CS/CS/HB 3265, Second Engrossed



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

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

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

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

  5  public service and that his or her vessel operating privilege

  6  will be suspended until the public service is performed.

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

  8  warning is a violation of this section.

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

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

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

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

13  provisions of this section.

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

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

16  316.1932 or s. 327.352, or by a preliminary alcohol screening

17  test device listed in the United States Department of

18  Transportation's conforming-product list of evidential

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

20  admissible in evidence in any trial or hearing.

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

22  infraction and being detained pursuant to this section does

23  not constitute an arrest. This section does not bar

24  prosecution under s. 327.35 and the penalties provided herein

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

26  boating under the influence or for refusal to submit to

27  testing.

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

29  subsection (1) shall be punished as follows:

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                                   CS/CS/HB 3265, Second Engrossed



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

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

  3  50 hours;

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

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

  6  or community work has been performed; and

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

  8  boating safety course that meets minimum standards established

  9  by the department by rule.

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

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

12  or nolo contendere, regardless of whether or not adjudication

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

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

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

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

17  operating privilege is suspended pursuant to this section

18  commits a misdemeanor of the first degree, punishable as

19  provided in s. 775.082 or s. 775.083.

20         Section 9.  Effective October 1, 1998, section 327.731,

21  Florida Statutes, is amended to read:

22         327.731  Mandatory education for violators.--

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

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

25  convicted of a noncriminal infraction under this chapter if

26  the infraction resulted in a reportable boating accident, and

27  every any person convicted of two a noncriminal infractions

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

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

30  12-month period, must (f) through (n), excepting (j), to:

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                                   CS/CS/HB 3265, Second Engrossed



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

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

  3  minimum standards established by the department by rule;

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

  5  attendance requirement for violators residing in areas where

  6  classroom presentation of the course is not available;

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

  8  days proof of successful completion of the course;

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

10  has filed the proof of successful completion of the course

11  with the court and the department.

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13  Any person who has successfully completed an approved boating

14  course shall be exempt from these provisions upon showing

15  proof to the court and the department as specified in

16  paragraph (b).

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

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

19  guilty or nolo contendere, regardless of whether or not

20  adjudication was withheld or whether imposition of sentence

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

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

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

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

25  775.083.

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

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

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

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

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

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


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                                   CS/CS/HB 3265, Second Engrossed



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

  2  operation of a vessel under subsection (2).

  3         Section 10.  Subsection (10) is added to section

  4  327.35, Florida Statutes, to read:

  5         327.35  Boating under the influence; penalties.--

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

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

  8  alcoholic beverages.

  9         Section 11.  Except as otherwise provided in this act,

10  this act shall take effect upon becoming a law.

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