Senate Bill 1056e2

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







    CS for CS for SB 1056                         Second Engrossed



  1                      A bill to be entitled

  2         An act relating to driving under the influence

  3         of alcohol or drugs; amending s. 322.34, F.S.;

  4         providing that a motor vehicle is subject to

  5         forfeiture under the Florida Contraband Act if

  6         the motor vehicle is driven by a person under

  7         the influence of alcohol or drugs and the

  8         person's license is suspended as a result of a

  9         prior conviction for driving under the

10         influence; requiring that notification of the

11         impoundment or seizure be sent to the

12         Department of Highway Safety and Motor

13         Vehicles; amending s. 932.701, F.S., relating

14         to definitions with respect to the Florida

15         Contraband Act; redefining the term "contraband

16         article" to conform to changes made by the act;

17         reenacting s. 932.703, F.S., relating to

18         forfeiture of contraband articles, to

19         incorporate the amendment to s. 932.701, F.S.,

20         in references; amending ss. 316.192, 316.193,

21         322.271, 322.291, F.S.; providing that any

22         person convicted of driving under the influence

23         must, in addition to any other penalties

24         provided by law, complete a substance abuse

25         education course conducted by a licensed DUI

26         program, including a psychosocial evaluation,

27         and, if referred, substance abuse treatment;

28         providing criteria for temporary reinstatement

29         of driving privileges by the Department of

30         Highway Safety and Motor Vehicles; deleting the

31         requirement that the clerk send a second notice


                                  1

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






    CS for CS for SB 1056                         Second Engrossed



  1         of impoundment or immobilization of a vehicle

  2         to the registered owner; clarifying references

  3         to certain courses; amending s. 318.1451, F.S.;

  4         prohibiting governmental entities or courts

  5         from providing, maintaining, or disclosing

  6         certain information relating to certain schools

  7         or course providers; amending s. 322.292, F.S.;

  8         providing criteria for the granting of DUI

  9         program licenses and deleting obsolete

10         provisions; providing an effective date.

11

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

13

14         Section 1.  Subsection (9) is added to section 322.34,

15  Florida Statutes, 1998 Supplement, to read:

16         322.34  Driving while license suspended, revoked,

17  canceled, or disqualified.--

18         (9)(a)  A motor vehicle that is driven by a person

19  under the influence of alcohol or drugs in violation of s.

20  316.193 is subject to seizure and forfeiture under ss.

21  932.701-932.707 and is subject to liens for recovering,

22  towing, or storing vehicles under s. 713.78 if, at the time of

23  the offense, the person's driver's license is suspended,

24  revoked, or canceled as a result of a prior conviction for

25  driving under the influence.

26         (b)  The law enforcement officer shall notify the

27  Department of Highway Safety and Motor Vehicles of any

28  impoundment or seizure for violation of paragraph (a) in

29  accordance with procedures established by the department.

30         (c)  Notwithstanding s. 932.703(1)(c) or s. 932.7055,

31  when the seizing agency obtains a final judgment granting


                                  2

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






    CS for CS for SB 1056                         Second Engrossed



  1  forfeiture of the motor vehicle under this section, 30 percent

  2  of the net proceeds from the sale of the motor vehicle shall

  3  be retained by the seizing law enforcement agency and 70

  4  percent shall be deposited in the General Revenue Fund for use

  5  by local WAGES coalitions in providing transportation services

  6  for participants of the WAGES program. In a forfeiture

  7  proceeding under this section, the court may consider the

  8  extent that the family of the owner has other public or

  9  private means of transportation.

10         Section 2.  Paragraph (a) of subsection (2) of section

11  932.701, Florida Statutes, is amended to read:

12         932.701  Short title; definitions.--

13         (2)  As used in the Florida Contraband Forfeiture Act:

14         (a)  "Contraband article" means:

15         1.  Any controlled substance as defined in chapter 893

16  or any substance, device, paraphernalia, or currency or other

17  means of exchange that was used, was attempted to be used, or

18  was intended to be used in violation of any provision of

19  chapter 893, if the totality of the facts presented by the

20  state is clearly sufficient to meet the state's burden of

21  establishing probable cause to believe that a nexus exists

22  between the article seized and the narcotics activity, whether

23  or not the use of the contraband article can be traced to a

24  specific narcotics transaction.

25         2.  Any gambling paraphernalia, lottery tickets, money,

26  currency, or other means of exchange which was used, was

27  attempted, or intended to be used in violation of the gambling

28  laws of the state.

29         3.  Any equipment, liquid or solid, which was being

30  used, is being used, was attempted to be used, or intended to

31


                                  3

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






    CS for CS for SB 1056                         Second Engrossed



  1  be used in violation of the beverage or tobacco laws of the

  2  state.

  3         4.  Any motor fuel upon which the motor fuel tax has

  4  not been paid as required by law.

  5         5.  Any personal property, including, but not limited

  6  to, any vessel, aircraft, item, object, tool, substance,

  7  device, weapon, machine, vehicle of any kind, money,

  8  securities, books, records, research, negotiable instruments,

  9  or currency, which was used or was attempted to be used as an

10  instrumentality in the commission of, or in aiding or abetting

11  in the commission of, any felony, whether or not comprising an

12  element of the felony, or which is acquired by proceeds

13  obtained as a result of a violation of the Florida Contraband

14  Forfeiture Act.

15         6.  Any real property, including any right, title,

16  leasehold, or other interest in the whole of any lot or tract

17  of land, which was used, is being used, or was attempted to be

18  used as an instrumentality in the commission of, or in aiding

19  or abetting in the commission of, any felony, or which is

20  acquired by proceeds obtained as a result of a violation of

21  the Florida Contraband Forfeiture Act.

22         7.  Any personal property, including, but not limited

23  to, equipment, money, securities, books, records, research,

24  negotiable instruments, currency, or any vessel, aircraft,

25  item, object, tool, substance, device, weapon, machine, or

26  vehicle of any kind in the possession of or belonging to any

27  person who takes aquaculture products in violation of s.

28  812.014(2)(c).

29         8.  Any motor vehicle used during the course of

30  committing an offense in violation of s. 322.34(9)(a).

31


                                  4

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






    CS for CS for SB 1056                         Second Engrossed



  1         Section 3.  For purposes of incorporating the amendment

  2  to section 932.701, Florida Statutes, in references thereto,

  3  section 932.703, Florida Statutes, is reenacted to read:

  4         932.703  Forfeiture of contraband article;

  5  exceptions.--

  6         (1)(a)  Any contraband article, vessel, motor vehicle,

  7  aircraft, other personal property, or real property used in

  8  violation of any provision of the Florida Contraband

  9  Forfeiture Act, or in, upon, or by means of which any

10  violation of the Florida Contraband Forfeiture Act has taken

11  or is taking place, may be seized and shall be forfeited

12  subject to the provisions of the Florida Contraband Forfeiture

13  Act.

14         (b)  Notwithstanding any other provision of the Florida

15  Contraband Forfeiture Act, except the provisions of paragraph

16  (a), contraband articles set forth in s. 932.701(2)(a)7. used

17  in violation of any provision of the Florida Contraband

18  Forfeiture Act, or in, upon, or by means of which any

19  violation of the Florida Contraband Forfeiture Act has taken

20  or is taking place, shall be seized and shall be forfeited

21  subject to the provisions of the Florida Contraband Forfeiture

22  Act.

23         (c)  All rights to, interest in, and title to

24  contraband articles used in violation of s. 932.702 shall

25  immediately vest in the seizing law enforcement agency upon

26  seizure.

27         (d)  The seizing agency may not use the seized property

28  for any purpose until the rights to, interest in, and title to

29  the seized property are perfected in accordance with the

30  Florida Contraband Forfeiture Act.  This section does not

31  prohibit use or operation necessary for reasonable maintenance


                                  5

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






    CS for CS for SB 1056                         Second Engrossed



  1  of seized property. Reasonable efforts shall be made to

  2  maintain seized property in such a manner as to minimize loss

  3  of value.

  4         (2)(a)  Personal property may be seized at the time of

  5  the violation or subsequent to the violation, if the person

  6  entitled to notice is notified at the time of the seizure or

  7  by certified mail, return receipt requested, that there is a

  8  right to an adversarial preliminary hearing after the seizure

  9  to determine whether probable cause exists to believe that

10  such property has been or is being used in violation of the

11  Florida Contraband Forfeiture Act. Seizing agencies shall make

12  a diligent effort to notify the person entitled to notice of

13  the seizure. Notice provided by certified mail must be mailed

14  within 5 working days after the seizure and must state that a

15  person entitled to notice may request an adversarial

16  preliminary hearing within 15 days after receiving such

17  notice.  When a postseizure, adversarial preliminary hearing

18  as provided in this section is desired, a request must be made

19  in writing by certified mail, return receipt requested, to the

20  seizing agency.  The seizing agency shall set and notice the

21  hearing, which must be held within 10 days after the request

22  is received or as soon as practicable thereafter.

23         (b)  Real property may not be seized or restrained,

24  other than by lis pendens, subsequent to a violation of the

25  Florida Contraband Forfeiture Act until the persons entitled

26  to notice are afforded the opportunity to attend the

27  preseizure adversarial preliminary hearing.  A lis pendens may

28  be obtained by any method authorized by law.  Notice of the

29  adversarial preliminary hearing shall be by certified mail,

30  return receipt requested.  The purpose of the adversarial

31  preliminary hearing is to determine whether probable cause


                                  6

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






    CS for CS for SB 1056                         Second Engrossed



  1  exists to believe that such property has been used in

  2  violation of the Florida Contraband Forfeiture Act.  The

  3  seizing agency shall make a diligent effort to notify any

  4  person entitled to notice of the seizure.  The preseizure

  5  adversarial preliminary hearing provided herein shall be held

  6  within 10 days of the filing of the lis pendens or as soon as

  7  practicable.

  8         (c)  When an adversarial preliminary hearing is held,

  9  the court shall review the verified affidavit and any other

10  supporting documents and take any testimony to determine

11  whether there is probable cause to believe that the property

12  was used, is being used, was attempted to be used, or was

13  intended to be used in violation of the Florida Contraband

14  Forfeiture Act.  If probable cause is established, the court

15  shall authorize the seizure or continued seizure of the

16  subject contraband.  A copy of the findings of the court shall

17  be provided to any person entitled to notice.

18         (d)  If the court determines that probable cause exists

19  to believe that such property was used in violation of the

20  Florida Contraband Forfeiture Act, the court shall order the

21  property restrained by the least restrictive means to protect

22  against disposal, waste, or continued illegal use of such

23  property pending disposition of the forfeiture proceeding.

24  The court may order the claimant to post a bond or other

25  adequate security equivalent to the value of the property.

26         (3)  Neither replevin nor any other action to recover

27  any interest in such property shall be maintained in any

28  court, except as provided in this act; however, such action

29  may be maintained if forfeiture proceedings are not initiated

30  within 45 days after the date of seizure.  However, if good

31


                                  7

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






    CS for CS for SB 1056                         Second Engrossed



  1  cause is shown, the court may extend the aforementioned

  2  prohibition to 60 days.

  3         (4)  In any incident in which possession of any

  4  contraband article defined in s. 932.701(2)(a) constitutes a

  5  felony, the vessel, motor vehicle, aircraft, other personal

  6  property, or real property in or on which such contraband

  7  article is located at the time of seizure shall be contraband

  8  subject to forfeiture.  It shall be presumed in the manner

  9  provided in s. 90.302(2) that the vessel, motor vehicle,

10  aircraft, other personal property, or real property in which

11  or on which such contraband article is located at the time of

12  seizure is being used or was attempted or intended to be used

13  in a manner to facilitate the transportation, carriage,

14  conveyance, concealment, receipt, possession, purchase, sale,

15  barter, exchange, or giving away of a contraband article

16  defined in s. 932.701(2).

17         (5)  The court shall order the forfeiture of any other

18  property of a claimant, excluding lienholders, up to the value

19  of any property subject to forfeiture under this section if

20  any of the property described in this section:

21         (a)  Cannot be located;

22         (b)  Has been transferred to, sold to, or deposited

23  with, a third party;

24         (c)  Has been placed beyond the jurisdiction of the

25  court;

26         (d)  Has been substantially diminished in value by any

27  act or omission of the person in possession of the property;

28  or

29         (e)  Has been commingled with any property which cannot

30  be divided without difficulty.

31


                                  8

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






    CS for CS for SB 1056                         Second Engrossed



  1         (6)(a)  Property may not be forfeited under the Florida

  2  Contraband Forfeiture Act unless the seizing agency

  3  establishes by a preponderance of the evidence that the owner

  4  either knew, or should have known after a reasonable inquiry,

  5  that the property was being employed or was likely to be

  6  employed in criminal activity.

  7         (b)  A bona fide lienholder's interest that has been

  8  perfected in the manner prescribed by law prior to the seizure

  9  may not be forfeited under the Florida Contraband Forfeiture

10  Act unless the seizing agency establishes by a preponderance

11  of the evidence that the lienholder had actual knowledge, at

12  the time the lien was made, that the property was being

13  employed or was likely to be employed in criminal activity.

14  If a lienholder's interest is not subject to forfeiture under

15  the requirements of this section, such interest shall be

16  preserved by the court by ordering the lienholder's interest

17  to be paid as provided in s. 932.7055.

18         (c)  Property titled or registered between husband and

19  wife jointly by the use of the conjunctives "and," "and/or,"

20  or "or," in the manner prescribed by law prior to the seizure,

21  may not be forfeited under the Florida Contraband Forfeiture

22  Act unless the seizing agency establishes by a preponderance

23  of the evidence that the coowner either knew or had reason to

24  know, after reasonable inquiry, that such property was

25  employed or was likely to be employed in criminal activity.

26         (d)  A vehicle that is rented or leased from a company

27  engaged in the business of renting or leasing vehicles, which

28  vehicle was rented or leased in the manner prescribed by law

29  prior to the seizure, may not be forfeited under the Florida

30  Contraband Forfeiture Act unless the seizing agency

31  establishes by preponderance of the evidence that the renter


                                  9

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






    CS for CS for SB 1056                         Second Engrossed



  1  or lessor had actual knowledge, at the time the vehicle was

  2  rented or leased, that the vehicle was being employed or was

  3  likely to be employed in criminal activity.  When a vehicle

  4  that is rented or leased from a company engaged in the

  5  business of renting or leasing vehicles is seized under the

  6  Florida Contraband Forfeiture Act, upon learning the address

  7  or phone number of the company, the seizing law enforcement

  8  agency shall, as soon as practicable, inform the company that

  9  the vehicle has been seized and is available for the company

10  to take possession.

11         (7)  Any interest in, title to, or right to property

12  titled or registered jointly by the use of the conjunctives

13  "and," "and/or," or "or" held by a coowner, other than

14  property held jointly between husband and wife, may not be

15  forfeited unless the seizing agency establishes by a

16  preponderance of the evidence that the coowner either knew, or

17  had reason to know, after reasonable inquiry, that the

18  property was employed or was likely to be employed in criminal

19  activity.  When the interests of each culpable coowner are

20  forfeited, any remaining coowners shall be afforded the

21  opportunity to purchase the forfeited interest in, title to,

22  or right to the property from the seizing law enforcement

23  agency.  If any remaining coowner does not purchase such

24  interest, the seizing agency may hold the property in

25  coownership, sell its interest in the property, liquidate its

26  interest in the property, or dispose of its interest in the

27  property in any other reasonable manner.

28         (8)  It is an affirmative defense to a forfeiture

29  proceeding that the nexus between the property sought to be

30  forfeited and the commission of any underlying violation was

31  incidental or entirely accidental.  The value of the property


                                  10

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






    CS for CS for SB 1056                         Second Engrossed



  1  sought to be forfeited in proportion to any other factors must

  2  not be considered in any determination as to this affirmative

  3  defense.

  4         Section 4.  Subsection (4) of section 316.192, Florida

  5  Statutes, is amended to read:

  6         316.192  Reckless driving.--

  7         (4)  In addition to any other penalty provided under

  8  this section, if the court has reasonable cause to believe

  9  that the use of alcohol, chemical substances set forth in s.

10  877.111, or substances controlled under chapter 893

11  contributed to a violation of this section, the court shall

12  direct the person so convicted to complete a DUI program the

13  substance abuse education course and evaluation as provided in

14  s. 316.193(5) within a reasonable period of time specified by

15  the court.  If the DUI program agency conducting such course

16  and evaluation refers may refer the person to an authorized

17  substance abuse treatment provider agency for substance abuse

18  evaluation and treatment,. the directive of the court

19  requiring completion of such course, evaluation, and treatment

20  shall be enforced as provided in s. 322.245. The referral to

21  treatment resulting from the DUI program evaluation may not be

22  waived without a supporting independent psychosocial

23  evaluation conducted by an authorized substance abuse

24  treatment provider, appointed by the court, which shall have

25  access to the DUI program psychosocial evaluation before the

26  independent psychosocial evaluation is conducted. The court

27  shall review the results and recommendations of both

28  evaluations before determining the request for waiver. The

29  offender shall bear the full cost of this procedure. If a

30  person directed referred to a DUI program substance abuse

31  education course and evaluation or referred to treatment under


                                  11

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






    CS for CS for SB 1056                         Second Engrossed



  1  this subsection fails to report for or complete such course,

  2  evaluation, or treatment or education, the agency conducting

  3  the DUI program shall notify the court and the department of

  4  the failure.  Upon receipt of such notice, the department

  5  shall cancel the person's driving privilege, notwithstanding

  6  the terms of the court order or any suspension or revocation

  7  of the driving privilege.  The department may shall reinstate

  8  the driving privilege upon verification from the DUI program

  9  that the education, evaluation, and treatment are completed.

10  The department may temporarily reinstate the driving privilege

11  on a restricted basis upon verification that the offender is

12  currently participating in treatment and has completed the DUI

13  education course and evaluation requirement. If the DUI

14  program notifies the department of the second failure to

15  complete treatment, the department shall reinstate the driving

16  privilege only after notice of successful completion of

17  treatment from the DUI program. when the person completes the

18  substance abuse education course or reenters treatment

19  required under this subsection.

20         Section 5.  Subsections (5) and (6) of section 316.193,

21  Florida Statutes, 1998 Florida Supplement, are amended to

22  read:

23         316.193  Driving under the influence; penalties.--

24         (5)  The court shall place all offenders any offender

25  convicted of violating this section on monthly reporting

26  probation and shall require completion of attendance at a

27  substance abuse course conducted by a DUI program licensed by

28  the department under s. 322.292, which must include a

29  psychosocial evaluation of the offender. If the DUI program

30  refers licensed by the department; and the agency conducting

31  the course may refer the offender to an authorized substance


                                  12

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






    CS for CS for SB 1056                         Second Engrossed



  1  abuse treatment service provider for substance abuse

  2  evaluation and treatment, in addition to any sentence or fine

  3  imposed under this section, completion of all such education,

  4  evaluation, and treatment is a condition of reporting

  5  probation.  The offender shall assume reasonable costs for

  6  such education, evaluation, and treatment, with completion of

  7  all such education, evaluation, and treatment being a

  8  condition of reporting probation. The referral to treatment

  9  resulting from a psychosocial evaluation shall may not be

10  waived without a supporting independent psychosocial

11  evaluation conducted by an authorized substance abuse

12  treatment provider agency appointed by the court, which shall

13  have and with access to the DUI program's psychosocial

14  original evaluation before the independent psychosocial

15  evaluation is conducted. The court shall review the results

16  and recommendations of both evaluations before determining the

17  request for waiver.  The offender shall bear the full cost of

18  this procedure.  The term "substance abuse" means the abuse of

19  alcohol or any substance named or described in Schedules I

20  through V of s. 893.03.  If an offender referred to treatment

21  under this subsection fails to report for or complete such

22  treatment or fails to complete the DUI program substance abuse

23  education course and evaluation, the DUI program shall notify

24  the court and the department of the failure.  Upon receipt of

25  the notice, the department shall cancel the offender's driving

26  privilege, notwithstanding the terms of the court order or any

27  suspension or revocation of the driving privilege.  The

28  department may temporarily shall reinstate the driving

29  privilege on a restricted basis upon verification from the DUI

30  program that the offender is currently participating in

31  treatment and the DUI education course and evaluation


                                  13

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






    CS for CS for SB 1056                         Second Engrossed



  1  requirement has been completed. If the DUI program notifies

  2  the department of the second failure to complete treatment,

  3  the department shall reinstate the driving privilege only

  4  after notice of completion of treatment from the DUI program

  5  when the offender completes the substance abuse education

  6  course or enters treatment required under this subsection.

  7  The organization that conducts the substance abuse education

  8  and evaluation may not provide required substance abuse

  9  treatment unless a waiver has been granted to that

10  organization by the department.  A waiver may be granted only

11  if the department determines, in accordance with its rules,

12  that the service provider that conducts the substance abuse

13  education and evaluation is the most appropriate service

14  provider and is licensed under chapter 397 or is exempt from

15  such licensure. All DUI treatment programs providing treatment

16  services on January 1, 1994, shall be allowed to continue to

17  provide such services until the department determines whether

18  a waiver should be granted. A statistical referral report

19  shall be submitted quarterly to the department by each

20  organization authorized to provide services under this

21  section.

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

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

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

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

26  defendant issue an order for the impoundment or immobilization

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

28  court issues the order of impoundment or immobilization, and

29  once again 30 business days before the actual impoundment or

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

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


                                  14

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






    CS for CS for SB 1056                         Second Engrossed



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

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

  3  record claiming a lien against the vehicle.

  4         Section 6.  Effective June 1, 2000, subsection (6) is

  5  added to section 318.1451, Florida Statutes, is amended to

  6  read:

  7         318.1451  Driver improvement schools.--

  8         (6)(a)  No governmental entity or court shall provide,

  9  issue or maintain any information or orders regarding driver

10  improvement schools or course providers, with the exception of

11  directing inquiries or request to the local telephone

12  directory heading of driving instruction or the traffic school

13  reference guide.

14         (b)  The department shall prepare for any governmental

15  entity to distribute, a traffic school reference guide which

16  shall list the benefits of attending a driver improvement

17  school, but under no circumstance may any list of course

18  providers or schools be included, and shall refer further

19  inquiries to the telephone directory under driving

20  instruction.

21         Section 7.  Paragraph (a) of subsection (2) of section

22  322.271, Florida Statutes, 1998 Supplement, is amended to

23  read:

24         322.271  Authority to modify revocation, cancellation,

25  or suspension order.--

26         (2)(a)  Upon such hearing, the person whose license has

27  been suspended, canceled, or revoked may show that such

28  suspension, cancellation, or revocation of his or her license

29  causes a serious hardship and precludes the person's carrying

30  out his or her normal business occupation, trade, or

31  employment and that the use of the person's license in the


                                  15

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






    CS for CS for SB 1056                         Second Engrossed



  1  normal course of his or her business is necessary to the

  2  proper support of the person or his or her family.  Except as

  3  otherwise provided in this subsection, the department shall

  4  require proof of the successful completion of the applicable

  5  department an approved driver training course operating

  6  pursuant to s. 318.1451 or DUI program substance abuse

  7  education course and evaluation as provided in s. 316.193(5).

  8  and may require Letters of recommendation from respected

  9  business persons in the community, law enforcement officers,

10  or judicial officers may also be required to determine in

11  determining whether such person should be permitted to operate

12  a motor vehicle on a restricted basis for business or

13  employment use only and in determining whether such person can

14  be trusted to so operate a motor vehicle. If a driver's

15  license has been suspended under the point system or pursuant

16  to s. 322.2615, the department shall require proof of

17  enrollment in the applicable department an approved driver

18  training course or licensed DUI program substance abuse

19  education course, including evaluation and treatment, if

20  referred, and may require the letters of recommendation

21  described in this subsection to determine if the driver should

22  be reinstated on a restricted basis.; If such person fails to

23  complete the approved course within 90 days after

24  reinstatement or subsequently fails to complete treatment, if

25  applicable, the department shall cancel his or her driver's

26  license until the course and treatment, if applicable, is

27  successfully completed, notwithstanding the terms of the court

28  order or any suspension or revocation of the driving

29  privilege. The department may temporarily reinstate the

30  driving privilege on a restricted basis upon verification from

31  the DUI program that the offender has reentered and is


                                  16

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






    CS for CS for SB 1056                         Second Engrossed



  1  currently participating in treatment and has completed the DUI

  2  education course and evaluation requirement. If the DUI

  3  program notifies the department of the second failure to

  4  complete treatment, the department shall reinstate the driving

  5  privilege only after notice of completion of treatment from

  6  the DUI program.  The privilege of driving on a limited or

  7  restricted basis for business or employment use shall not be

  8  granted to a person who has been convicted of a violation of

  9  s. 316.193 until completion of the DUI program substance abuse

10  such education or training course and evaluations as provided

11  in s. 316.193(5). Except as provided in paragraph (b), the

12  privilege of driving on a limited or restricted basis for

13  business or employment use shall not be granted to a person

14  whose license is revoked pursuant to s. 322.28 or suspended

15  pursuant to s. 322.2615 and who has been convicted of a

16  violation of s. 316.193 two or more times or whose license has

17  been suspended two or more times for refusal to submit to a

18  test pursuant to s. 322.2615 or former s. 322.261.

19         Section 8.  Section 322.291, Florida Statutes, is

20  amended to read:

21         322.291  Driver improvement schools or DUI programs;

22  required in certain suspension and revocation cases.--Except

23  as provided in s. 322.03(2), any person:

24         (1)  Whose driving privilege has been revoked:

25         (a)  Upon conviction for:

26         1.  Driving, or being in actual physical control of,

27  any vehicle while under the influence of alcoholic beverages,

28  any chemical substance set forth in s. 877.111, or any

29  substance controlled under chapter 893, in violation of s.

30  316.193;

31


                                  17

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






    CS for CS for SB 1056                         Second Engrossed



  1         2.  Driving with an unlawful blood- or breath-alcohol

  2  level;

  3         3.  Manslaughter resulting from the operation of a

  4  motor vehicle;

  5         4.  Failure to stop and render aid as required under

  6  the laws of this state in the event of a motor vehicle

  7  accident resulting in the death or personal injury of another;

  8         5.  Reckless driving; or

  9         (b)  As an habitual offender;

10         (c)  Upon direction of the court, if the court feels

11  that the seriousness of the offense and the circumstances

12  surrounding the conviction warrant the revocation of the

13  licensee's driving privilege; or

14         (2)  Whose license was suspended under the point

15  system, was suspended for driving with an unlawful

16  blood-alcohol level of 0.10 percent or higher before January

17  1, 1994, was suspended for driving with an unlawful

18  blood-alcohol level of 0.08 percent or higher after December

19  31, 1993, was suspended for a violation of s. 316.193(1), or

20  was suspended for refusing to submit to a lawful breath,

21  blood, or urine test as provided in s. 322.2615

22

23  shall, before the driving privilege may be reinstated, present

24  to the department proof of enrollment in a department-approved

25  advanced driver improvement course operating pursuant to s.

26  318.1451 or a substance abuse education course conducted by a

27  DUI program licensed pursuant to s. 322.292, which shall

28  include a psychosocial evaluation and treatment, if referred.

29  If the person fails to complete such course or evaluation

30  within 90 days after reinstatement, or subsequently fails to

31  complete treatment, if referred, the DUI program shall notify


                                  18

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






    CS for CS for SB 1056                         Second Engrossed



  1  the department of the failure. Upon receipt of the notice, the

  2  department shall cancel the offender's driving privilege,

  3  notwithstanding the expiration of the suspension or revocation

  4  of the driving privilege. The department may temporarily

  5  reinstate the driving privilege upon verification from the DUI

  6  program that the offender has completed the education course

  7  and evaluation requirement and has reentered and is currently

  8  participating in treatment. If the DUI program notifies the

  9  department of the second failure to complete treatment, the

10  department shall reinstate the driving privilege only after

11  notice of completion of treatment from the DUI program. the

12  driver's license shall be canceled by the department until

13  such course is successfully completed.

14         Section 9.  Section 322.292, Florida Statutes, is

15  amended to read:

16         322.292  DUI programs supervision; powers and duties of

17  the department.--

18         (1)  The Department of Highway Safety and Motor

19  Vehicles shall license and regulate all DUI programs, which

20  regulation shall include the certification of instructors,

21  evaluators, clinical supervisors, and special supervision

22  services evaluators evaluator supervisors.  The department

23  shall, after consultation with the chief judge of the affected

24  judicial circuit, establish requirements regarding the number

25  of programs to be offered within a judicial circuit.  Such

26  requirements shall address the number of clients currently

27  served in the circuit as well as improvements in service that

28  may be derived from operation of an additional DUI program.

29  DUI program education and evaluation services are exempt from

30  licensure under chapter chapters 396 and 397.  However,

31


                                  19

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






    CS for CS for SB 1056                         Second Engrossed



  1  treatment programs must continue to be licensed under chapter

  2  chapters 396 and 397.

  3         (2)  The department shall adopt rules to implement its

  4  supervisory authority over DUI programs in accordance with the

  5  procedures of chapter 120, including the establishment of

  6  uniform standards of operation for DUI programs and the method

  7  for setting and approving fees, as follows:

  8         (a)  Adopt rules Establish minimum standards for

  9  statutorily required education, evaluation, and supervision of

10  DUI offenders.  Such minimum standards previously adopted by

11  the Traffic Court Review Committee of the Supreme Court of

12  Florida shall remain in effect unless modified by the

13  department.

14         (b)  Adopt rules Establish minimum standards for the

15  administration and financial management of DUI programs,

16  including, but not limited to:

17         1.  Rules Standards governing the types of expenditures

18  that may be made by DUI programs from funds paid by persons

19  attending such programs.

20         2.  Rules Standards for financial reporting that

21  require data on DUI programs expenditures in sufficient detail

22  to support reasonable and informed decisions concerning the

23  fees that are to be assessed those attending DUI programs.

24  The department shall perform financial audits of DUI programs

25  required under this section or require that financial audits

26  of the programs be performed by certified public accountants

27  at program expense and submitted directly from the auditor to

28  the department.

29         3.  Rules for Standards of reciprocity in relation to

30  DUI programs in other states or countries that have programs

31  similar to the DUI programs licensed by the department.


                                  20

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






    CS for CS for SB 1056                         Second Engrossed



  1         4.  Such other rules standards as the department deems

  2  appropriate and necessary for the effective oversight of the

  3  DUI programs.

  4         (c)  Implement procedures for the granting and revoking

  5  of licenses for DUI programs, including:

  6         1.  A uniform application fee not to exceed $1,000 but

  7  in an amount sufficient to cover the department's

  8  administrative costs in processing and evaluating DUI program

  9  license applications. The application fee shall not apply to

10  programs that apply for licensure to serve a county that does

11  not have a currently licensed DUI program or where the

12  currently licensed program has relinquished its license.

13         2.  In considering an application for approval of a DUI

14  program, the department shall determine whether improvements

15  in service may be derived from the operation of the DUI

16  program and the number of clients currently served in the

17  circuit.  The department shall apply the following criteria:

18         (a)  The increased frequency of classes and

19  availability of locations of services offered by the applicant

20  DUI program.

21         (b)  Services and fees offered by the applicant DUI

22  program and any existing DUI program.

23         (c)  The number of DUI clients currently served and

24  historical trends in the number of clients served in the

25  circuit.

26         (d)  The availability, accessibility, and service

27  history of any existing DUI program services.

28         (e)  The applicant DUI program's service history.

29         (f)  The availability of resources, including

30  personnel, demonstrated management capability, and capital and

31  operating expenditures of the applicant DUI program.


                                  21

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






    CS for CS for SB 1056                         Second Engrossed



  1         (g)  Improved services to minority and special needs

  2  clients.

  3         3.  Authority for competing applicants and currently

  4  licensed DUI programs serving the same geographic area to

  5  request an administrative hearing under chapter 120 to contest

  6  the department's determination of need for an additional

  7  licensed DUI program in that area.

  8         4.  A requirement that the department revoke the

  9  license of any DUI program that does not provide the services

10  specified in its application within 45 days after licensure

11  and notify the chief judge of that circuit of such revocation.

12         5.  A requirement that all applicants for initial

13  licensure as a DUI program in a particular circuit on and

14  after the effective date of this act must, at a minimum,

15  satisfy each of the following criteria:

16         a.  Maintain a primary business office in the circuit

17  which is located in a permanent structure that is readily

18  accessible by public transportation, if public transportation

19  is available. The primary business office must be adequately

20  staffed and equipped to provide all DUI program support

21  services, including registration and a file for each person

22  who registers for the program.

23         b.  Have a satellite office for registration of DUI

24  offenders in each county in the circuit which is located in a

25  permanent structure that is readily accessible by public

26  transportation, if public transportation is available. A

27  satellite office is not required in any county where the total

28  number of DUI convictions in the most recent calendar year is

29  less than 200.

30         c.  Have a classroom in each county in the circuit

31  which is located in a permanent structure that is readily


                                  22

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






    CS for CS for SB 1056                         Second Engrossed



  1  accessible by public transportation, if public transportation

  2  is available. A classroom is not required in any county where

  3  the total number of DUI convictions in the most recent

  4  calendar year is less than 100. A classroom may not be located

  5  within 250 feet of any business that sells alcoholic

  6  beverages. However, a classroom shall not be required to be

  7  relocated when a business selling alcoholic beverages locates

  8  to within 250 feet of the classroom.

  9         d.  Have a plan for conducting all DUI education

10  courses, evaluation services, and other services required by

11  the department. The level I DUI education course must be

12  taught in four segments, with no more than 6 hours of

13  classroom instruction provided to any offender each day.

14         e.  Employ at least 1 full-time certified addiction

15  professional for the program at all times.

16         f.  Document support from community agencies involved

17  in DUI education and substance abuse treatment in the circuit.

18         g.  Have a volunteer board of directors and advisory

19  committee made up of citizens who reside in the circuit in

20  which licensure is sought.

21         h.  Submit documentation of compliance with all

22  applicable federal, state, and local laws, including, but not

23  limited to, the Americans with Disabilities Act.

24         (d)  Establish a fee structure for the various programs

25  offered by the DUI programs, based only on the reasonable and

26  necessary costs for operating the programs throughout the

27  state. The department shall approve, modify, or reduce fees as

28  necessary. The DUI programs fees that are in effect on January

29  1, 1994, shall remain in effect until the department adopts a

30  fee schedule for the DUI programs system. After the adoption

31


                                  23

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






    CS for CS for SB 1056                         Second Engrossed



  1  of the schedule, the programs shall adjust their fees to

  2  conform with the established amounts.

  3         (e)  Establish policies and procedures for monitoring

  4  DUI programs compliance with all rules adopted minimum

  5  standards established by the department.

  6         (f)  The department shall oversee an ongoing evaluation

  7  to assess the effectiveness of the DUI programs.  This

  8  evaluation shall be performed by an independent group and

  9  shall evaluate the curriculum, client treatment referrals,

10  recidivism rates, and any other relevant matters.  The

11  department shall report to the Legislature by January 1, 1995,

12  on the status of the evaluation, including its design and

13  schedule for completion. The department may use funds received

14  under s. 322.293 to retain the services and reimburse expenses

15  of such private persons or professional consultants as are

16  required for monitoring and evaluating DUI programs.

17         (g)  Investigate complaints about the DUI programs and

18  resolve problems in the provision of services to DUI

19  offenders, as needed.

20         (3)  All DUI programs and certified program personnel

21  providing DUI programs services that meet the department's

22  standards and that are operating on January 1, 1994, may

23  remain in operation until the department's license procedures

24  are in place. At that time the DUI programs and certified

25  program personnel may apply for relicensure.

26         (3)(4)  DUI programs shall be either governmental

27  programs or not-for-profit corporations.

28         (5)  The department shall report to the Supreme Court

29  by December 1, 1994, and by December 31 of each succeeding

30  year through 1996, on the general status of the statewide

31  program. This report must include programmatic and statistical


                                  24

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






    CS for CS for SB 1056                         Second Engrossed



  1  information regarding the number of licensed programs,

  2  enrollment and referral figures, program monitoring and

  3  evaluation activities, and findings, and the general steps

  4  taken by the department to implement the provisions of this

  5  section.

  6         Section 10.  This act shall take effect January 1,

  7  2000.

  8

  9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31


                                  25