Senate Bill 0688

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



    Florida Senate - 1999                                   SB 688

    By Senator Campbell





    33-597-99

  1                      A bill to be entitled

  2         An act relating to driving under the influence;

  3         creating s. 316.1939, F.S.; providing that it

  4         is a first-degree misdemeanor for a person to

  5         refuse to submit to a chemical test of his or

  6         her breath, blood, or urine upon the request of

  7         a law enforcement officer who has reasonable

  8         cause to believe such person was driving under

  9         the influence of alcohol or drugs; providing

10         that the prosecution of such offense does not

11         affect an administrative action to suspend a

12         person's driving privilege; providing that an

13         administrative action to suspend a person's

14         driving privilege does not affect prosecution

15         of the offense of refusing to submit to a test

16         for the presence of alcohol or drugs; amending

17         s. 316.1932, F.S.; requiring that a person be

18         informed that it is a crime to fail to submit

19         to a test for the presence of alcohol or drugs

20         upon the request of a law enforcement officer;

21         providing an effective date.

22

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

24

25         Section 1.  Section 316.1939, Florida Statutes, is

26  created to read:

27         316.1939  Refusal to submit to testing; penalties.--

28         (1)  Any person who refuses to submit to a chemical

29  test of his or her breath, blood, or urine, as described in s.

30  316.1932, upon the request of a law enforcement officer who

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

                                  1

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






    Florida Senate - 1999                                   SB 688
    33-597-99




  1  in actual physical control of a motor vehicle while under the

  2  influence of alcoholic beverages, chemical substances, or

  3  controlled substances, commits a misdemeanor of the first

  4  degree, punishable as provided in s. 775.082 or s. 775.083.

  5         (2)  The disposition of any administrative proceeding

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

  7  does not affect a criminal action under this section.

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

  9  section does not affect any administrative proceeding that

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

11         Section 2.  Section 316.1932, Florida Statutes, 1998

12  Supplement, is amended to read:

13         316.1932  Breath, blood, and urine tests for alcohol,

14  chemical substances, or controlled substances; implied

15  consent; refusal right to refuse.--

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

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

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

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

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

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

22  determining the alcoholic content of his or her blood or

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

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

25  controlled substances, if the person is lawfully arrested for

26  any offense allegedly committed while the person was driving

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

28  under the influence of alcoholic beverages, chemical

29  substances, or controlled substances.  The chemical or

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

31  administered at the request of a law enforcement officer who

                                  2

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






    Florida Senate - 1999                                   SB 688
    33-597-99




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

  2  in actual physical control of the motor vehicle within this

  3  state while under the influence of alcoholic beverages. The

  4  urine test must be incidental to a lawful arrest and

  5  administered at a detention facility or any other facility,

  6  mobile or otherwise, which is equipped to administer such

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

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

  9  actual physical control of a motor vehicle within this state

10  while under the influence of controlled substances. The urine

11  test shall be administered at a detention facility or any

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

13  administer such tests in a reasonable manner that will ensure

14  the accuracy of the specimen and maintain the privacy of the

15  individual involved. The administration of one type of test

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

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

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

19  crime and will result in the suspension of the person's

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

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

22  driving privilege of such person has been previously suspended

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

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

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

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

27  criminal proceeding.

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

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

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

31  breath.

                                  3

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






    Florida Senate - 1999                                   SB 688
    33-597-99




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

  2  considered valid under this section, must have been performed

  3  substantially according to methods approved by the Department

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

  5  approve satisfactory techniques or methods.  Any insubstantial

  6  differences between approved techniques and actual testing

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

  8  test results invalid.

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

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

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

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

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

14  blood test for the purpose of determining the presence of

15  chemical substances or controlled substances as provided in

16  this section if there is reasonable cause to believe the

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

18  vehicle while under the influence of alcoholic beverages or

19  chemical or controlled substances and the person appears for

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

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

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

23  facility" includes an ambulance or other medical emergency

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

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

26  unconsciousness or other mental or physical condition is

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

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

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

30  a crime and will result in the suspension of the person's

31  privilege to operate a motor vehicle upon the public highways

                                  4

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






    Florida Senate - 1999                                   SB 688
    33-597-99




  1  of this state.  Any person who is capable of refusal shall be

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

  3  a crime and will result in the suspension of the person's

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

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

  6  driving privilege of the person has been suspended previously

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

  8  The refusal to submit to a blood test upon the request of a

  9  law enforcement officer is admissible in evidence in any

10  criminal proceeding.

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

12  chemical or physical breath test of the person arrested for

13  any offense allegedly committed while the person was driving

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

15  under the influence of alcoholic beverages or controlled

16  substances, such person may request the arresting officer to

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

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

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

20  breath or the presence of chemical substances or controlled

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

22  have the test performed.

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

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

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

26  consent to the provisions of this section.

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

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

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

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

31  of this section.

                                  5

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






    Florida Senate - 1999                                   SB 688
    33-597-99




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

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

  3  renewed driver's license.

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

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

  6  request of a law enforcement officer substantially in

  7  accordance with rules of the Department of Law Enforcement.

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

  9  approved by the Department of Law Enforcement for reliability

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

11  approved method of administration which must be followed in

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

13  of a law enforcement officer to request the withdrawal of

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

15  withdrawn for medical purposes.

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

17  nurse, licensed practical nurse, other personnel authorized by

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

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

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

21  for the purpose of determining its alcoholic content or the

22  presence of chemical substances or controlled substances

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

24  request the withdrawal of blood does not affect the

25  admissibility of a test of blood withdrawn for medical

26  purposes.

27         b.  Notwithstanding any provision of law pertaining to

28  the confidentiality of hospital records or other medical

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

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

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

                                  6

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






    Florida Senate - 1999                                   SB 688
    33-597-99




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

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

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

  4  care provider may notify any law enforcement officer or law

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

  6  reasonable time after the health care provider receives the

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

  8  purpose of providing the law enforcement officer with

  9  reasonable cause to request the withdrawal of a blood sample

10  pursuant to this section.

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

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

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

14  date and time of the administration of the test.

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

16  any applicable practice act affects the authority to provide

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

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

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

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

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

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

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

24  be brought against any person or health care provider

25  participating in good faith in the provision of notice or

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

27  person or health care provider participating in the provision

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

29  section shall be immune from any civil or criminal liability

30  and from any professional disciplinary action with respect to

31  the provision of notice or failure to provide notice under

                                  7

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






    Florida Senate - 1999                                   SB 688
    33-597-99




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

  2  respect to participating in any judicial proceedings resulting

  3  from the notice or failure to provide notice.

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

  5  have a physician, registered nurse, other personnel authorized

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

  7  laboratory director, supervisor, technologist, or technician,

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

  9  independent test in addition to the test administered at the

10  direction of the law enforcement officer for the purpose of

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

12  breath or the presence of chemical substances or controlled

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

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

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

16  independent test by a person does not preclude the

17  admissibility in evidence of the test taken at the direction

18  of the law enforcement officer.  The law enforcement officer

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

20  the independent test and shall provide the person with timely

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

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

23  expense.

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

25  information concerning the test taken at the direction of the

26  law enforcement officer shall be made available to the person

27  or his or her attorney.

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

29  similar medical institution or physician, certified paramedic,

30  registered nurse, licensed practical nurse, other personnel

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

                                  8

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






    Florida Senate - 1999                                   SB 688
    33-597-99




  1  clinical laboratory director, supervisor, technologist, or

  2  technician, or other person assisting a law enforcement

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

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

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

  6  breath pursuant to accepted medical standards when requested

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

  8  subject resisted administration of the test.

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

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

11  controlled substance shall not be admissible as evidence in a

12  criminal prosecution for the possession of a controlled

13  substance.

14         (3)  Notwithstanding any provision of law pertaining to

15  the confidentiality of hospital records or other medical

16  records, information relating to the alcoholic content of the

17  blood or breath or the presence of chemical substances or

18  controlled substances in the blood obtained pursuant to this

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

20  defense attorney, or law enforcement officer in connection

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

22  information.

23         Section 3.  This act shall take effect October 1, 1999.

24

25            *****************************************

26                          SENATE SUMMARY

27    Provides that it is a first-degree misdemeanor for a
      person to refuse to submit to a chemical test of his or
28    her breath, blood, or urine upon the request of a law
      enforcement officer who has reasonable cause to believe
29    such person was driving under the influence of alcohol or
      drugs. Requires that a person be informed that it is a
30    crime to fail to submit to a lawful test for the presence
      of alcohol or drugs upon the request of a law enforcement
31    officer.

                                  9