House Bill 0049e1

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                               CS/CS/CS/HB 49, First Engrossed/ntc



  1                      A bill to be entitled

  2         An act relating to driving under the influence;

  3         amending s. 322.2616, F.S.; providing for the

  4         requirement that certain license suspensions

  5         shall remain in effect for a described time

  6         period; providing for the assumption of the

  7         costs for substance abuse education; providing

  8         a definition; providing for the admission of

  9         certain minors into county addictions receiving

10         facilities under certain circumstances;

11         clarifying the blood-alcohol and breath-alcohol

12         level that is unlawful; providing for a

13         temporary driving permit to become effective

14         after a specified period has elapsed following

15         the issuance of the permit; authorizing the use

16         of a blood test obtained pursuant to certain

17         other investigations to be used for the

18         purposes of s. 322.2616, F.S.; providing an

19         effective date.

20

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

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23         Section 1.  Section 322.2616, Florida Statutes, is

24  amended to read:

25         322.2616  Suspension of license; persons under 21 years

26  of age; right to review.--

27         (1)(a)  Notwithstanding s. 316.193, it is unlawful for

28  a person under the age of 21 who has a blood-alcohol or

29  breath-alcohol level of 0.02 percent or higher to drive or be

30  in actual physical control of a motor vehicle.

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                               CS/CS/CS/HB 49, First Engrossed/ntc



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

  2  to believe that a motor vehicle is being driven by or is in

  3  the actual physical control of a person who is under the age

  4  of 21 while under the influence of alcoholic beverages or who

  5  has any blood-alcohol or breath-alcohol level may lawfully

  6  detain such a person and may request that person to submit to

  7  a test to determine his or her blood-alcohol or breath-alcohol

  8  level.

  9         (2)(a)  A law enforcement officer or correctional

10  officer shall, on behalf of the department, suspend the

11  driving privilege of such person if the person has a

12  blood-alcohol or breath-alcohol level of 0.02 percent or

13  higher. The officer shall also suspend, on behalf of the

14  department, the driving privilege of a person who has refused

15  to submit to a test as provided by paragraph (b). The officer

16  shall take the person's driver's license and issue the person

17  a 10-day temporary driving permit if the person is otherwise

18  eligible for the driving privilege and shall issue the person

19  a notice of suspension.

20         (b)  The suspension under paragraph (a) must be

21  pursuant to, and the notice of suspension must inform the

22  driver of, the following:

23         1.a.  The driver refused to submit to a lawful breath

24  test and his or her driving privilege is suspended for a

25  period of 1 year for a first refusal or for a period of 18

26  months if his or her driving privilege has been previously

27  suspended as provided in this section as a result of a refusal

28  to submit to a test; or

29         b.  The driver was under the age of 21 and was driving

30  or in actual physical control of a motor vehicle while having

31  a blood-alcohol or breath-alcohol level of 0.02 percent or


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                               CS/CS/CS/HB 49, First Engrossed/ntc



  1  higher; and the person's driving privilege is suspended for a

  2  period of 6 months for a first violation, or for a period of 1

  3  year if his or her driving privilege has been previously

  4  suspended as provided in this section for driving or being in

  5  actual physical control of a motor vehicle with a

  6  blood-alcohol or breath-alcohol level of 0.02 percent or

  7  higher.

  8         2.  The suspension period commences on the date of

  9  issuance of the notice of suspension.

10         3.  The driver may request a formal or informal review

11  of the suspension by the department within 10 days after the

12  issuance of the notice of suspension.

13         4.  A temporary permit issued at the time of the

14  issuance of the notice of suspension shall not become

15  effective until after 12 hours have elapsed and will expire at

16  midnight of the 10th day following the date of issuance.

17         5.  The driver may submit to the department any

18  materials relevant to the suspension of his or her license.

19         (c)  When a driver subject to this section has a

20  blood-alcohol or breath-alcohol level of 0.05 or higher, the

21  suspension shall remain in effect until such time as the

22  driver has completed a substance abuse course offered by a DUI

23  program licensed by the department.  The driver shall assume

24  the reasonable costs for the substance abuse course.  As part

25  of the substance abuse course, the program shall conduct a

26  substance abuse evaluation of the driver, and notify the

27  parents or legal guardians of drivers under the age of 19

28  years of the results of the evaluation.   The term "substance

29  abuse" means the abuse of alcohol or any substance named or

30  described in Schedules I through V of s. 893.03.  If a driver

31  fails to complete the substance abuse education course and


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                               CS/CS/CS/HB 49, First Engrossed/ntc



  1  evaluation, the driver's license shall not be reinstated by

  2  the department.

  3         (d)  A minor under the age of 18 years proven to be

  4  driving with a blood-alcohol or breath-alcohol level of 0.02

  5  or higher may be taken by a law enforcement officer to the

  6  addictions receiving facility in the county in which the minor

  7  is found to be so driving, if the county makes the addictions

  8  receiving facility available for such purpose.

  9         (3)  The law enforcement officer shall forward to the

10  department, within 5 days after the date of the issuance of

11  the notice of suspension, a copy of the notice of suspension,

12  the driver's license of the person receiving the notice of

13  suspension, and an affidavit stating the officer's grounds for

14  belief that the person was under the age of 21 and was driving

15  or in actual physical control of a motor vehicle with any

16  blood-alcohol or breath-alcohol level, and the results of any

17  blood or breath test or an affidavit stating that a breath

18  test was requested by a law enforcement officer or

19  correctional officer and that the person refused to submit to

20  such test. The failure of the officer to submit materials

21  within the 5-day period specified in this subsection does not

22  bar the department from considering any materials submitted at

23  or before the hearing.

24         (4)  If the department finds that the license of the

25  person should be suspended under this section and if the

26  notice of suspension has not already been served upon the

27  person by a law enforcement officer or correctional officer as

28  provided in subsection (2), the department shall issue a

29  notice of suspension and, unless the notice is mailed under s.

30  322.251, a temporary driving permit that expires 10 days after

31  the date of issuance if the driver is otherwise eligible.


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  1         (5)  If the person whose license is suspended requests

  2  an informal review under subparagraph (2)(b)3., the department

  3  shall conduct the informal review by a hearing officer

  4  employed by the department within 30 days after the request is

  5  received by the department and shall issue such person a

  6  temporary driving permit for business purposes only to expire

  7  on the date that such review is scheduled to be conducted if

  8  the person is otherwise eligible. The informal review hearing

  9  must consist solely of an examination by the department of the

10  materials submitted by a law enforcement officer or

11  correctional officer and by the person whose license is

12  suspended, and the presence of an officer or witness is not

13  required.

14         (6)  After completion of the informal review, notice of

15  the department's decision sustaining, amending, or

16  invalidating the suspension of the driver's license must be

17  provided to the person. The notice must be mailed to the

18  person at the last known address shown on the department's

19  records, or to the address provided in the law enforcement

20  officer's report if such address differs from the address of

21  record, within 7 days after completing the review.

22         (7)(a)  If the person whose license is suspended

23  requests a formal review, the department must schedule a

24  hearing to be held within 30 days after the request is

25  received by the department and must notify the person of the

26  date, time, and place of the hearing and shall issue such

27  person a temporary driving permit for business purposes only

28  to expire on the date that such review is scheduled to be

29  conducted if the person is otherwise eligible.

30         (b)  The formal review hearing must be held before a

31  hearing officer employed by the department, and the hearing


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  1  officer may administer oaths, examine witnesses and take

  2  testimony, receive relevant evidence, issue subpoenas,

  3  regulate the course and conduct of the hearing, and make a

  4  ruling on the suspension.  The department and the person whose

  5  license was suspended may subpoena witnesses, and the party

  6  requesting the presence of a witness is responsible for paying

  7  any witness fees and for notifying in writing the state

  8  attorney's office in the appropriate circuit of the issuance

  9  of the subpoena. If the person who requests a formal review

10  hearing fails to appear and the hearing officer finds the

11  failure to be without just cause, the right to a formal

12  hearing is waived and the suspension is sustained.

13         (c)  A party may seek enforcement of a subpoena under

14  paragraph (b) by filing a petition for enforcement in the

15  circuit court of the judicial circuit in which the person

16  failing to comply with the subpoena resides.  A failure to

17  comply with an order of the court constitutes contempt of

18  court. However, a person may not be held in contempt while a

19  subpoena is being challenged.

20         (d)  The department must, within 7 days after a formal

21  review hearing, send notice to the person of the hearing

22  officer's decision as to whether sufficient cause exists to

23  sustain, amend, or invalidate the suspension.

24         (8)  In a formal review hearing under subsection (7) or

25  an informal review hearing under subsection (5), the hearing

26  officer shall determine by a preponderance of the evidence

27  whether sufficient cause exists to sustain, amend, or

28  invalidate the suspension.  The scope of the review is limited

29  to the following issues:

30         (a)  If the license was suspended because the

31  individual, then under the age of 21, drove with a


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                               CS/CS/CS/HB 49, First Engrossed/ntc



  1  blood-alcohol or breath-alcohol level of 0.02 percent or

  2  higher:

  3         1.  Whether the law enforcement officer had probable

  4  cause to believe that the person was under the age of 21 and

  5  was driving or in actual physical control of a motor vehicle

  6  in this state with any blood-alcohol or breath-alcohol level

  7  or while under the influence of alcoholic beverages.

  8         2.  Whether the person was under the age of 21.

  9         3.  Whether the person had a blood-alcohol or

10  breath-alcohol level of 0.02 percent or higher.

11         (b)  If the license was suspended because of the

12  individual's refusal to submit to a breath test:

13         1.  Whether the law enforcement officer had probable

14  cause to believe that the person was under the age of 21 and

15  was driving or in actual physical control of a motor vehicle

16  in this state with any blood-alcohol or breath-alcohol level

17  or while under the influence of alcoholic beverages.

18         2.  Whether the person was under the age of 21.

19         3.  Whether the person refused to submit to a breath

20  test after being requested to do so by a law enforcement

21  officer or correctional officer.

22         4.  Whether the person was told that if he or she

23  refused to submit to a breath test his or her privilege to

24  operate a motor vehicle would be suspended for a period of 1

25  year or, in the case of a second or subsequent refusal, for a

26  period of 18 months.

27         (9)  Based on the determination of the hearing officer

28  under subsection (8) for both informal hearings under

29  subsection (5) and formal hearings under subsection (7), the

30  department shall:

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                               CS/CS/CS/HB 49, First Engrossed/ntc



  1         (a)  Sustain the suspension of the person's driving

  2  privilege for a period of 1 year for a first refusal, or for a

  3  period of 18 months if the driving privilege of the person has

  4  been previously suspended, as provided in this section, as a

  5  result of a refusal to submit to a test.  The suspension

  6  period commences on the date of the issuance of the notice of

  7  suspension.

  8         (b)  Sustain the suspension of the person's driving

  9  privilege for a period of 6 months for driving or being in

10  actual physical control of a motor vehicle while under the age

11  of 21 with a blood-alcohol or breath-alcohol level of 0.02

12  percent or higher, or for a period of 1 year if the driving

13  privilege of such person has been previously suspended under

14  this section as a result of driving a motor vehicle while

15  under the age of 21 with a breath-alcohol level of at least

16  0.02 percent but less than 0.08 percent. The suspension period

17  commences on the date of the issuance of the notice of

18  suspension.

19         (10)  A request for a formal review hearing or an

20  informal review hearing shall not stay the suspension of the

21  person's driver's license.  If the department fails to

22  schedule the formal review hearing to be held within 30 days

23  after receipt of the request therefor, the department shall

24  invalidate the suspension. If the scheduled hearing is

25  continued at the department's initiative, the department shall

26  issue a temporary driving permit that is valid until the

27  hearing is conducted if the person is otherwise eligible for

28  the driving privilege.  The permit shall not be issued to a

29  person who requested a continuance of the hearing. The permit

30  issued under this subsection authorizes driving for business

31  or employment use only.


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                               CS/CS/CS/HB 49, First Engrossed/ntc



  1         (11)  A person whose driver's license is suspended

  2  under subsection (2) or subsection (4) may apply for issuance

  3  of a license for business or employment purposes only,

  4  pursuant to s. 322.271, if the person is otherwise eligible

  5  for the driving privilege. However, such a license may not be

  6  issued until 30 days have elapsed after the expiration of the

  7  last temporary driving permit issued under this section.

  8         (12)  The formal review hearing may be conducted upon a

  9  review of the reports of a law enforcement officer or

10  correctional officer, including documents relating to the

11  administration of a breath test or the refusal to take a test.

12  However, as provided in subsection (7), the driver may

13  subpoena the officer or any person who administered a breath

14  or blood test.

15         (13)  The formal review hearing and the informal review

16  hearing are exempt from chapter 120.  The department may adopt

17  rules for conducting reviews under this section.

18         (14)  A person may appeal any decision of the

19  department sustaining a suspension of his or her driver's

20  license by a petition for writ of certiorari to the circuit

21  court in the county wherein such person resides or wherein a

22  formal or informal review was conducted under s. 322.31.

23  However, an appeal does not stay the suspension. This

24  subsection does not provide for a de novo appeal.

25         (15)  The decision of the department under this section

26  shall not be considered in any trial for a violation of s.

27  316.193, nor shall any written statement submitted by a person

28  in his or her request for departmental review under this

29  section be admissible into evidence against him or her in any

30  such trial. The disposition of any related criminal

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  1  proceedings shall not affect a suspension imposed under this

  2  section.

  3         (16)  By applying for and accepting and using a

  4  driver's license, a person under the age of 21 years who holds

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

  6  consent to the provisions of this section.

  7         (17)  A breath test to determine breath-alcohol level

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

  9  316.1932 or by a breath-alcohol preliminary alcohol screening

10  test device listed in the United States Department of

11  Transportation's conforming-product list of evidential

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

13  presumed accurate and is admissible in evidence in any

14  administrative hearing conducted under this section.

15         (18)  The result of a blood test obtained during an

16  investigation conducted under s. 316.1932 or s. 316.1933 may

17  be used to suspend the driving privilege of a person under

18  this section.

19         (19)(18)  A violation of this section is neither a

20  traffic infraction nor a criminal offense, nor does being

21  detained pursuant to this section constitute an arrest.  A

22  violation of this section is subject to the administrative

23  action provisions of this section, which are administered by

24  the department through its administrative processes.

25  Administrative actions taken pursuant to this section shall be

26  recorded in the motor vehicle records maintained by the

27  department.  This section does not bar prosecution under s.

28  316.193. However, if the department suspends a person's

29  license under s. 322.2615 for a violation of s. 316.193, it

30  may not also suspend the person's license under this section

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  1  for the same episode that was the basis for the suspension

  2  under s. 322.2615.

  3         Section 2.  This act shall take effect July 1, 2000.

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