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





                                                  SENATE AMENDMENT

    Bill No. CS for SB 1316

    Amendment No.    

                            CHAMBER ACTION
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10                                                                

11  Senator Campbell moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         On page 11, line 23, delete that line

15

16  and insert:

17         Section 3.  Section 316.1939, Florida Statutes, is

18  created to read:

19         316.1939  Refusal to submit to testing; penalties.--

20         (1)  Any person who has refused to submit to a chemical

21  or physical test of his or her breath, blood, or urine, as

22  described in s. 316.1932, and:

23         (a)  Whom the arresting law enforcement officer had

24  probable cause to believe was driving or in actual physical

25  control of a motor vehicle in this state while under the

26  influence of alcoholic beverages or controlled substances;

27         (b)  Who was placed under lawful arrest for a violation

28  of s. 316.193, unless such test was requested pursuant to s.

29  316.1932(1)(c); 

30         (c)  Who was informed that if he or she refused to

31  submit to such test his or her privilege to operate a motor

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1316

    Amendment No.    





 1  vehicle would be suspended for a period of 1 year or, in the

 2  case of a second or subsequent refusal, for a period of 18

 3  months, and that the refusal to submit to such test is a

 4  misdemeanor; and

 5         (d)  Who, after having been so informed, refused to

 6  submit to any such test when requested to do so by a law

 7  enforcement officer or correctional officer

 8

 9  commits a misdemeanor of the first degree and is subject to

10  punishment as provided in s. 775.082 or s. 775.083.

11         (2)  The disposition of any administrative proceeding

12  that relates to the suspension of a person's driving privilege

13  does not affect a criminal action under this section.

14         (3)  The disposition of a criminal action under this

15  section does not affect any administrative proceeding that

16  relates to the suspension of a person's driving privilege.

17         Section 4.  Section 316.1932, Florida Statutes, 1998

18  Supplement, is amended to read:

19         316.1932  Breath, blood, and urine tests for alcohol,

20  chemical substances, or controlled substances; implied

21  consent; refusal right to refuse.--

22         (1)(a)  Any person who accepts the privilege extended

23  by the laws of this state of operating a motor vehicle within

24  this state is, by so operating such vehicle, deemed to have

25  given his or her consent to submit to an approved chemical

26  test or physical test including, but not limited to, an

27  infrared light test of his or her breath for the purpose of

28  determining the alcoholic content of his or her blood or

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

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

31  controlled substances, if the person is lawfully arrested for

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1316

    Amendment No.    





 1  any offense allegedly committed while the person was driving

 2  or was in actual physical control of a motor vehicle while

 3  under the influence of alcoholic beverages, chemical

 4  substances, or controlled substances.  The chemical or

 5  physical breath test must be incidental to a lawful arrest and

 6  administered at the request of a law enforcement officer who

 7  has reasonable cause to believe such person was driving or was

 8  in actual physical control of the motor vehicle within this

 9  state while under the influence of alcoholic beverages. The

10  urine test must be incidental to a lawful arrest and

11  administered at a detention facility or any other facility,

12  mobile or otherwise, which is equipped to administer such

13  tests at the request of a law enforcement officer who has

14  reasonable cause to believe such person was driving or was in

15  actual physical control of a motor vehicle within this state

16  while under the influence of controlled substances. The urine

17  test shall be administered at a detention facility or any

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

19  administer such tests in a reasonable manner that will ensure

20  the accuracy of the specimen and maintain the privacy of the

21  individual involved. The administration of one type of test

22  does not preclude the administration of another type of test.

23  The person shall be told that his or her failure to submit to

24  any lawful test of his or her breath or urine, or both, is a

25  misdemeanor and will result in the suspension of the person's

26  privilege to operate a motor vehicle for a period of 1 year

27  for a first refusal, or for a period of 18 months if the

28  driving privilege of such person has been previously suspended

29  as a result of a refusal to submit to such a test or tests.

30  The refusal to submit to a chemical or physical breath test or

31  to a urine test upon the request of a law enforcement officer

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1316

    Amendment No.    





 1  as provided in this section is admissible into evidence in any

 2  criminal proceeding.

 3         (b)1.  The blood-alcohol level must be based upon grams

 4  of alcohol per 100 milliliters of blood. The breath-alcohol

 5  level must be based upon grams of alcohol per 210 liters of

 6  breath.

 7         2.  An analysis of a person's breath, in order to be

 8  considered valid under this section, must have been performed

 9  substantially according to methods approved by the Department

10  of Law Enforcement.  For this purpose, the department may

11  approve satisfactory techniques or methods.  Any insubstantial

12  differences between approved techniques and actual testing

13  procedures in any individual case do not render the test or

14  test results invalid.

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

16  the laws of this state of operating a motor vehicle within

17  this state is, by operating such vehicle, deemed to have given

18  his or her consent to submit to an approved blood test for the

19  purpose of determining the alcoholic content of the blood or a

20  blood test for the purpose of determining the presence of

21  chemical substances or controlled substances as provided in

22  this section if there is reasonable cause to believe the

23  person was driving or in actual physical control of a motor

24  vehicle while under the influence of alcoholic beverages or

25  chemical or controlled substances and the person appears for

26  treatment at a hospital, clinic, or other medical facility and

27  the administration of a breath or urine test is impractical or

28  impossible. As used in this paragraph, the term "other medical

29  facility" includes an ambulance or other medical emergency

30  vehicle. The blood test shall be performed in a reasonable

31  manner. Any person who is incapable of refusal by reason of

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1316

    Amendment No.    





 1  unconsciousness or other mental or physical condition is

 2  deemed not to have withdrawn his or her consent to such test.

 3  A blood test may be administered whether or not the person is

 4  told that his or her failure to submit to such a blood test is

 5  a misdemeanor and will result in the suspension of the

 6  person's privilege to operate a motor vehicle upon the public

 7  highways of this state.  Any person who is capable of refusal

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

 9  blood test is a misdemeanor and will result in the suspension

10  of the person's privilege to operate a motor vehicle for a

11  period of 1 year for a first refusal, or for a period of 18

12  months if the driving privilege of the person has been

13  suspended previously as a result of a refusal to submit to

14  such a test or tests.  The refusal to submit to a blood test

15  upon the request of a law enforcement officer is admissible in

16  evidence in any criminal proceeding.

17         (d)  If the arresting officer does not request a

18  chemical or physical breath test of the person arrested for

19  any offense allegedly committed while the person was driving

20  or was in actual physical control of a motor vehicle while

21  under the influence of alcoholic beverages or controlled

22  substances, such person may request the arresting officer to

23  have a chemical or physical test made of the arrested person's

24  breath or a test of the urine or blood for the purpose of

25  determining the alcoholic content of the person's blood or

26  breath or the presence of chemical substances or controlled

27  substances; and, if so requested, the arresting officer shall

28  have the test performed.

29         (e)1.  By applying for a driver's license and by

30  accepting and using a driver's license, the person holding the

31  driver's license is deemed to have expressed his or her

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1316

    Amendment No.    





 1  consent to the provisions of this section.

 2         2.  A nonresident or any other person driving in a

 3  status exempt from the requirements of the driver's license

 4  law, by his or her act of driving in such exempt status, is

 5  deemed to have expressed his or her consent to the provisions

 6  of this section.

 7         3.  A warning of the consent provision of this section

 8  shall be printed above the signature line on each new or

 9  renewed driver's license.

10         (f)1.  The tests determining the weight of alcohol in

11  the defendant's blood or breath shall be administered at the

12  request of a law enforcement officer substantially in

13  accordance with rules of the Department of Law Enforcement.

14  Such rules must specify precisely the test or tests that are

15  approved by the Department of Law Enforcement for reliability

16  of result and ease of administration, and must provide an

17  approved method of administration which must be followed in

18  all such tests given under this section.  However, the failure

19  of a law enforcement officer to request the withdrawal of

20  blood does not affect the admissibility of a test of blood

21  withdrawn for medical purposes.

22         2.a.  Only a physician, certified paramedic, registered

23  nurse, licensed practical nurse, other personnel authorized by

24  a hospital to draw blood, or duly licensed clinical laboratory

25  director, supervisor, technologist, or technician, acting at

26  the request of a law enforcement officer, may withdraw blood

27  for the purpose of determining its alcoholic content or the

28  presence of chemical substances or controlled substances

29  therein. However, the failure of a law enforcement officer to

30  request the withdrawal of blood does not affect the

31  admissibility of a test of blood withdrawn for medical

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1316

    Amendment No.    





 1  purposes.

 2         b.  Notwithstanding any provision of law pertaining to

 3  the confidentiality of hospital records or other medical

 4  records, if a health care provider, who is providing medical

 5  care in a health care facility to a person injured in a motor

 6  vehicle crash, becomes aware, as a result of any blood test

 7  performed in the course of that medical treatment, that the

 8  person's blood-alcohol level meets or exceeds the

 9  blood-alcohol level specified in s. 316.193(1)(b), the health

10  care provider may notify any law enforcement officer or law

11  enforcement agency. Any such notice must be given within a

12  reasonable time after the health care provider receives the

13  test result. Any such notice shall be used only for the

14  purpose of providing the law enforcement officer with

15  reasonable cause to request the withdrawal of a blood sample

16  pursuant to this section.

17         c.  The notice shall consist only of the name of the

18  person being treated, the name of the person who drew the

19  blood, the blood-alcohol level indicated by the test, and the

20  date and time of the administration of the test.

21         d.  Nothing contained in s. 395.3025(4), s. 455.667, or

22  any applicable practice act affects the authority to provide

23  notice under this section, and the health care provider is not

24  considered to have breached any duty owed to the person under

25  s. 395.3025(4), s. 455.667, or any applicable practice act by

26  providing notice or failing to provide notice. It shall not be

27  a breach of any ethical, moral, or legal duty for a health

28  care provider to provide notice or fail to provide notice.

29         e.  A civil, criminal, or administrative action may not

30  be brought against any person or health care provider

31  participating in good faith in the provision of notice or

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1316

    Amendment No.    





 1  failure to provide notice as provided in this section. Any

 2  person or health care provider participating in the provision

 3  of notice or failure to provide notice as provided in this

 4  section shall be immune from any civil or criminal liability

 5  and from any professional disciplinary action with respect to

 6  the provision of notice or failure to provide notice under

 7  this section. Any such participant has the same immunity with

 8  respect to participating in any judicial proceedings resulting

 9  from the notice or failure to provide notice.

10         3.  The person tested may, at his or her own expense,

11  have a physician, registered nurse, other personnel authorized

12  by a hospital to draw blood, or duly licensed clinical

13  laboratory director, supervisor, technologist, or technician,

14  or other person of his or her own choosing administer an

15  independent test in addition to the test administered at the

16  direction of the law enforcement officer for the purpose of

17  determining the amount of alcohol in the person's blood or

18  breath or the presence of chemical substances or controlled

19  substances at the time alleged, as shown by chemical analysis

20  of his or her blood or urine, or by chemical or physical test

21  of his or her breath. The failure or inability to obtain an

22  independent test by a person does not preclude the

23  admissibility in evidence of the test taken at the direction

24  of the law enforcement officer.  The law enforcement officer

25  shall not interfere with the person's opportunity to obtain

26  the independent test and shall provide the person with timely

27  telephone access to secure the test, but the burden is on the

28  person to arrange and secure the test at the person's own

29  expense.

30         4.  Upon the request of the person tested, full

31  information concerning the test taken at the direction of the

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1316

    Amendment No.    





 1  law enforcement officer shall be made available to the person

 2  or his or her attorney.

 3         5.  A hospital, clinical laboratory, medical clinic, or

 4  similar medical institution or physician, certified paramedic,

 5  registered nurse, licensed practical nurse, other personnel

 6  authorized by a hospital to draw blood, or duly licensed

 7  clinical laboratory director, supervisor, technologist, or

 8  technician, or other person assisting a law enforcement

 9  officer does not incur any civil or criminal liability as a

10  result of the withdrawal or analysis of a blood or urine

11  specimen, or the chemical or physical test of a person's

12  breath pursuant to accepted medical standards when requested

13  by a law enforcement officer, regardless of whether or not the

14  subject resisted administration of the test.

15         (2)  The results of any test administered pursuant to

16  this section for the purpose of detecting the presence of any

17  controlled substance shall not be admissible as evidence in a

18  criminal prosecution for the possession of a controlled

19  substance.

20         (3)  Notwithstanding any provision of law pertaining to

21  the confidentiality of hospital records or other medical

22  records, information relating to the alcoholic content of the

23  blood or breath or the presence of chemical substances or

24  controlled substances in the blood obtained pursuant to this

25  section shall be released to a court, prosecuting attorney,

26  defense attorney, or law enforcement officer in connection

27  with an alleged violation of s. 316.193 upon request for such

28  information.

29         Section 5.  Subsection (1) of section 316.1933, Florida

30  Statutes, 1998 Supplement, is amended to read:

31         316.1933  Blood test for impairment or intoxication in

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1316

    Amendment No.    





 1  cases of death or serious bodily injury; right to use

 2  reasonable force.--

 3         (1)  Notwithstanding any recognized ability to refuse

 4  to submit to the tests provided in s. 316.1932 or any

 5  recognized power to revoke the implied consent to such tests,

 6  If a law enforcement officer has probable cause to believe

 7  that a motor vehicle driven by or in the actual physical

 8  control of a person under the influence of alcoholic

 9  beverages, any chemical substances, or any controlled

10  substances has caused the death or serious bodily injury of a

11  human being, such person shall submit, upon the request of a

12  law enforcement officer, to a test of the person's blood for

13  the purpose of determining the alcoholic content thereof or

14  the presence of chemical substances as set forth in s. 877.111

15  or any substance controlled under chapter 893.  The law

16  enforcement officer may use reasonable force if necessary to

17  require such person to submit to the administration of the

18  blood test.  The blood test shall be performed in a reasonable

19  manner. The term "serious bodily injury" means an injury to

20  any person, including the driver, which consists of a physical

21  condition that creates a substantial risk of death, serious

22  personal disfigurement, or protracted loss or impairment of

23  the function of any bodily member or organ.

24         Section 6.  This act shall take effect July 1, 1999,

25  except that sections 3, 4, and 5 of this act shall take effect

26  October 1, 1999.

27

28

29  ================ T I T L E   A M E N D M E N T ===============

30  And the title is amended as follows:

31         On page 1, line 20, delete that line

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1316

    Amendment No.    





 1  and insert:

 2         liability; creating s. 316.1939, F.S.;

 3         providing that it is a first-degree misdemeanor

 4         for a person to refuse to submit to a chemical

 5         test of his or her breath, blood, or urine upon

 6         the request of a law enforcement officer who

 7         has reasonable cause to believe such person was

 8         driving under the influence of alcohol or

 9         drugs; requiring warnings concerning the

10         consequences of refusing to take these tests;

11         providing that the prosecution of such offense

12         does not affect an administrative action to

13         suspend a person's driving privilege; providing

14         that an administrative action to suspend a

15         person's driving privilege does not affect

16         prosecution of the offense of refusing to

17         submit to a test for the presence of alcohol or

18         drugs; amending s. 316.1932, F.S.; requiring

19         that a person be informed that it is a crime to

20         fail to submit to a test for the presence of

21         alcohol or drugs upon the request of a law

22         enforcement officer; amending s. 316.1933,

23         F.S.; deleting a reference to the person's

24         ability to refuse to submit to certain tests;

25         providing effective dates.

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