Senate Bill 1316
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 1999 SB 1316
By Senator Webster
12-1129-99
1 A bill to be entitled
2 An act relating to suspension of driver's
3 licenses; amending s. 322.2616, F.S.;
4 clarifying the blood-alcohol and breath-alcohol
5 levels that are unlawful; prescribing a waiting
6 period before a temporary driving permit
7 becomes effective; authorizing the use of blood
8 tests obtained pursuant to other investigations
9 for purposes of license suspension under s.
10 322.2616, F.S.; prescribing law enforcement
11 officers' immunity from civil liability;
12 providing an effective date.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. Section 322.2616, Florida Statutes, is
17 amended to read:
18 322.2616 Suspension of license; persons under 21 years
19 of age; right to review.--
20 (1)(a) Notwithstanding s. 316.193, it is unlawful for
21 a person under the age of 21 who has a blood-alcohol or
22 breath-alcohol level of 0.02 percent or higher to drive or be
23 in actual physical control of a motor vehicle.
24 (b) A law enforcement officer who has probable cause
25 to believe that a motor vehicle is being driven by or is in
26 the actual physical control of a person who is under the age
27 of 21 while under the influence of alcoholic beverages or who
28 has any blood-alcohol or breath-alcohol level may lawfully
29 detain such a person and may request that person to submit to
30 a test to determine his or her breath-alcohol level.
31
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 1999 SB 1316
12-1129-99
1 (2)(a) A law enforcement officer or correctional
2 officer shall, on behalf of the department, suspend the
3 driving privilege of such person if the person has a
4 blood-alcohol or breath-alcohol level of 0.02 percent or
5 higher. The officer shall also suspend, on behalf of the
6 department, the driving privilege of a person who has refused
7 to submit to a test as provided by paragraph (b). The officer
8 shall take the person's driver's license and issue the person
9 a 10-day temporary driving permit if the person is otherwise
10 eligible for the driving privilege and shall issue the person
11 a notice of suspension.
12 (b) The suspension under paragraph (a) must be
13 pursuant to, and the notice of suspension must inform the
14 driver of, the following:
15 1.a. The driver refused to submit to a lawful breath
16 test and his or her driving privilege is suspended for a
17 period of 1 year for a first refusal or for a period of 18
18 months if his or her driving privilege has been previously
19 suspended as provided in this section as a result of a refusal
20 to submit to a test; or
21 b. The driver was under the age of 21 and was driving
22 or in actual physical control of a motor vehicle while having
23 a blood-alcohol or breath-alcohol level of 0.02 percent or
24 higher; and the person's driving privilege is suspended for a
25 period of 6 months for a first violation, or for a period of 1
26 year if his or her driving privilege has been previously
27 suspended as provided in this section for driving or being in
28 actual physical control of a motor vehicle with a
29 blood-alcohol or breath-alcohol level of 0.02 percent or
30 higher.
31
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 1999 SB 1316
12-1129-99
1 2. The suspension period commences on the date of
2 issuance of the notice of suspension.
3 3. The driver may request a formal or informal review
4 of the suspension by the department within 10 days after the
5 issuance of the notice of suspension.
6 4. A temporary permit issued at the time of the
7 issuance of the notice of suspension shall not become
8 effective until after 12 hours have elapsed and will expire at
9 midnight of the 10th day following the date of issuance.
10 5. The driver may submit to the department any
11 materials relevant to the suspension of his or her license.
12 (3) The law enforcement officer shall forward to the
13 department, within 5 days after the date of the issuance of
14 the notice of suspension, a copy of the notice of suspension,
15 the driver's license of the person receiving the notice of
16 suspension, and an affidavit stating the officer's grounds for
17 belief that the person was under the age of 21 and was driving
18 or in actual physical control of a motor vehicle with any
19 blood-alcohol or breath-alcohol level, and the results of any
20 blood or breath test or an affidavit stating that a blood or
21 breath test was requested by a law enforcement officer or
22 correctional officer and that the person refused to submit to
23 such test. The failure of the officer to submit materials
24 within the 5-day period specified in this subsection does not
25 bar the department from considering any materials submitted at
26 or before the hearing.
27 (4) If the department finds that the license of the
28 person should be suspended under this section and if the
29 notice of suspension has not already been served upon the
30 person by a law enforcement officer or correctional officer as
31 provided in subsection (2), the department shall issue a
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 1999 SB 1316
12-1129-99
1 notice of suspension and, unless the notice is mailed under s.
2 322.251, a temporary driving permit that expires 10 days after
3 the date of issuance if the driver is otherwise eligible.
4 (5) If the person whose license is suspended requests
5 an informal review under subparagraph (2)(b)3., the department
6 shall conduct the informal review by a hearing officer
7 employed by the department within 30 days after the request is
8 received by the department and shall issue such person a
9 temporary driving permit for business purposes only to expire
10 on the date that such review is scheduled to be conducted if
11 the person is otherwise eligible. The informal review hearing
12 must consist solely of an examination by the department of the
13 materials submitted by a law enforcement officer or
14 correctional officer and by the person whose license is
15 suspended, and the presence of an officer or witness is not
16 required.
17 (6) After completion of the informal review, notice of
18 the department's decision sustaining, amending, or
19 invalidating the suspension of the driver's license must be
20 provided to the person. The notice must be mailed to the
21 person at the last known address shown on the department's
22 records, or to the address provided in the law enforcement
23 officer's report if such address differs from the address of
24 record, within 7 days after completing the review.
25 (7)(a) If the person whose license is suspended
26 requests a formal review, the department must schedule a
27 hearing to be held within 30 days after the request is
28 received by the department and must notify the person of the
29 date, time, and place of the hearing and shall issue such
30 person a temporary driving permit for business purposes only
31
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 1999 SB 1316
12-1129-99
1 to expire on the date that such review is scheduled to be
2 conducted if the person is otherwise eligible.
3 (b) The formal review hearing must be held before a
4 hearing officer employed by the department, and the hearing
5 officer may administer oaths, examine witnesses and take
6 testimony, receive relevant evidence, issue subpoenas,
7 regulate the course and conduct of the hearing, and make a
8 ruling on the suspension. The department and the person whose
9 license was suspended may subpoena witnesses, and the party
10 requesting the presence of a witness is responsible for paying
11 any witness fees and for notifying in writing the state
12 attorney's office in the appropriate circuit of the issuance
13 of the subpoena. If the person who requests a formal review
14 hearing fails to appear and the hearing officer finds the
15 failure to be without just cause, the right to a formal
16 hearing is waived and the suspension is sustained.
17 (c) A party may seek enforcement of a subpoena under
18 paragraph (b) by filing a petition for enforcement in the
19 circuit court of the judicial circuit in which the person
20 failing to comply with the subpoena resides. A failure to
21 comply with an order of the court constitutes contempt of
22 court. However, a person may not be held in contempt while a
23 subpoena is being challenged.
24 (d) The department must, within 7 days after a formal
25 review hearing, send notice to the person of the hearing
26 officer's decision as to whether sufficient cause exists to
27 sustain, amend, or invalidate the suspension.
28 (8) In a formal review hearing under subsection (7) or
29 an informal review hearing under subsection (5), the hearing
30 officer shall determine by a preponderance of the evidence
31 whether sufficient cause exists to sustain, amend, or
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 1999 SB 1316
12-1129-99
1 invalidate the suspension. The scope of the review is limited
2 to the following issues:
3 (a) If the license was suspended because the
4 individual, then under the age of 21, drove with a
5 blood-alcohol or breath-alcohol level of 0.02 percent or
6 higher:
7 1. Whether the law enforcement officer had probable
8 cause to believe that the person was under the age of 21 and
9 was driving or in actual physical control of a motor vehicle
10 in this state with any blood-alcohol or breath-alcohol level
11 or while under the influence of alcoholic beverages.
12 2. Whether the person was under the age of 21.
13 3. Whether the person had a blood-alcohol or
14 breath-alcohol level of 0.02 percent or higher.
15 (b) If the license was suspended because of the
16 individual's refusal to submit to a breath test:
17 1. Whether the law enforcement officer had probable
18 cause to believe that the person was under the age of 21 and
19 was driving or in actual physical control of a motor vehicle
20 in this state with any blood-alcohol or breath-alcohol level
21 or while under the influence of alcoholic beverages.
22 2. Whether the person was under the age of 21.
23 3. Whether the person refused to submit to a breath
24 test after being requested to do so by a law enforcement
25 officer or correctional officer.
26 4. Whether the person was told that if he or she
27 refused to submit to a breath test his or her privilege to
28 operate a motor vehicle would be suspended for a period of 1
29 year or, in the case of a second or subsequent refusal, for a
30 period of 18 months.
31
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 1999 SB 1316
12-1129-99
1 (9) Based on the determination of the hearing officer
2 under subsection (8) for both informal hearings under
3 subsection (5) and formal hearings under subsection (7), the
4 department shall:
5 (a) Sustain the suspension of the person's driving
6 privilege for a period of 1 year for a first refusal, or for a
7 period of 18 months if the driving privilege of the person has
8 been previously suspended, as provided in this section, as a
9 result of a refusal to submit to a test. The suspension
10 period commences on the date of the issuance of the notice of
11 suspension.
12 (b) Sustain the suspension of the person's driving
13 privilege for a period of 6 months for driving or being in
14 actual physical control of a motor vehicle while under the age
15 of 21 with a blood-alcohol or breath-alcohol level of 0.02
16 percent or higher, or for a period of 1 year if the driving
17 privilege of such person has been previously suspended under
18 this section as a result of driving a motor vehicle while
19 under the age of 21 with a breath-alcohol level of at least
20 0.02 percent but less than 0.08 percent. The suspension period
21 commences on the date of the issuance of the notice of
22 suspension.
23 (10) A request for a formal review hearing or an
24 informal review hearing shall not stay the suspension of the
25 person's driver's license. If the department fails to
26 schedule the formal review hearing to be held within 30 days
27 after receipt of the request therefor, the department shall
28 invalidate the suspension. If the scheduled hearing is
29 continued at the department's initiative, the department shall
30 issue a temporary driving permit that is valid until the
31 hearing is conducted if the person is otherwise eligible for
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 1999 SB 1316
12-1129-99
1 the driving privilege. The permit shall not be issued to a
2 person who requested a continuance of the hearing. The permit
3 issued under this subsection authorizes driving for business
4 or employment use only.
5 (11) A person whose driver's license is suspended
6 under subsection (2) or subsection (4) may apply for issuance
7 of a license for business or employment purposes only,
8 pursuant to s. 322.271, if the person is otherwise eligible
9 for the driving privilege. However, such a license may not be
10 issued until 30 days have elapsed after the expiration of the
11 last temporary driving permit issued under this section.
12 (12) The formal review hearing may be conducted upon a
13 review of the reports of a law enforcement officer or
14 correctional officer, including documents relating to the
15 administration of a breath test or the refusal to take a test.
16 However, as provided in subsection (7), the driver may
17 subpoena the officer or any person who administered a breath
18 test.
19 (13) The formal review hearing and the informal review
20 hearing are exempt from chapter 120. The department may adopt
21 rules for conducting reviews under this section.
22 (14) A person may appeal any decision of the
23 department sustaining a suspension of his or her driver's
24 license by a petition for writ of certiorari to the circuit
25 court in the county wherein such person resides or wherein a
26 formal or informal review was conducted under s. 322.31.
27 However, an appeal does not stay the suspension. This
28 subsection does not provide for a de novo appeal.
29 (15) The decision of the department under this section
30 shall not be considered in any trial for a violation of s.
31 316.193, nor shall any written statement submitted by a person
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 1999 SB 1316
12-1129-99
1 in his or her request for departmental review under this
2 section be admissible into evidence against him or her in any
3 such trial. The disposition of any related criminal
4 proceedings shall not affect a suspension imposed under this
5 section.
6 (16) By applying for and accepting and using a
7 driver's license, a person under the age of 21 years who holds
8 the driver's license is deemed to have expressed his or her
9 consent to the provisions of this section.
10 (17) A breath test to determine breath-alcohol level
11 pursuant to this section may be conducted as authorized by s.
12 316.1932 or by a breath-alcohol preliminary alcohol screening
13 test device listed in the United States Department of
14 Transportation's conforming-product list of evidential
15 breath-measurement devices. The reading from such a device is
16 presumed accurate and is admissible in evidence in any
17 administrative hearing conducted under this section.
18 (18) The result of a blood test obtained during an
19 investigation conducted under s. 316.1932 or s. 316.1933 may
20 be used to suspend the driving privilege of a person under
21 this section.
22 (19) A law enforcement officer who acts in good faith
23 and exercises due care in enforcing this section is immune
24 from civil liability that otherwise might result by reason of
25 his action.
26 (20)(18) A violation of this section is neither a
27 traffic infraction nor a criminal offense, nor does being
28 detained pursuant to this section constitute an arrest. A
29 violation of this section is subject to the administrative
30 action provisions of this section, which are administered by
31 the department through its administrative processes.
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 1999 SB 1316
12-1129-99
1 Administrative actions taken pursuant to this section shall be
2 recorded in the motor vehicle records maintained by the
3 department. This section does not bar prosecution under s.
4 316.193. However, if the department suspends a person's
5 license under s. 322.2615 for a violation of s. 316.193, it
6 may not also suspend the person's license under this section
7 for the same episode that was the basis for the suspension
8 under s. 322.2615.
9 Section 2. This act shall take effect July 1, 1999.
10
11 *****************************************
12 SENATE SUMMARY
13 Clarifies the blood-alcohol levels and breath-alcohol
levels that are unlawful for purposes of suspending the
14 driver's license of a person under age 21. Provides that
a temporary driving permit issued at the time of a notice
15 of suspension does not become effective until 12 hours
have elapsed. Provides that the results of a blood test
16 conducted pursuant to s. 316.1932 or s. 316.1933, F.S.,
may be used to suspend a driving privilege under s.
17 322.2616, F.S. Immunizes law enforcement officers who
exercise due care from civil liability.
18
19
20
21
22
23
24
25
26
27
28
29
30
31
10