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.
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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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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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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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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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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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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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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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