Senate Bill 0066c1

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    Florida Senate - 2000                             CS for SB 66

    By the Committee on Transportation and Senator Dyer





    306-2138-00

  1                      A bill to be entitled

  2         An act relating to driving under the influence;

  3         amending s. 322.2616, F.S.; providing that

  4         certain license suspensions remain in effect

  5         for a described time period; providing for the

  6         assumption of the costs for substance-abuse

  7         education; providing a definition; providing

  8         for the admission of certain minors into county

  9         addictions-receiving facilities under certain

10         circumstances; clarifying the blood-alcohol and

11         breath-alcohol level that is unlawful;

12         providing for a temporary driving permit to

13         become effective after a specified period has

14         elapsed following the issuance of the permit;

15         authorizing the use of a blood test obtained

16         pursuant to certain other investigations to be

17         used for the purposes of s. 322.2616, F.S.;

18         providing an effective date.

19

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

21

22         Section 1.  Section 322.2616, Florida Statutes, is

23  amended to read:

24         322.2616  Suspension of license; persons under 21 years

25  of age; right to review.--

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

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

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

29  in actual physical control of a motor vehicle.

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

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

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    Florida Senate - 2000                             CS for SB 66
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  1  the actual physical control of a person who is under the age

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

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

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

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

  6  level.

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

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

  9  driving privilege of such person if the person has a

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

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

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

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

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

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

16  eligible for the driving privilege and shall issue the person

17  a notice of suspension.

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

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

20  driver of, the following:

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

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

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

24  months if his or her driving privilege has been previously

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

26  to submit to a test; or

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

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

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

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

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

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    Florida Senate - 2000                             CS for SB 66
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  1  year if his or her driving privilege has been previously

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

  3  actual physical control of a motor vehicle with a

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

  5  higher.

  6         2.  The suspension period commences on the date of

  7  issuance of the notice of suspension.

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

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

10  issuance of the notice of suspension.

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

12  issuance of the notice of suspension shall not become

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

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

15         5.  The driver may submit to the department any

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

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

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

19  suspension shall remain in effect until the driver has

20  completed a substance-abuse course offered by a DUI program

21  licensed by the department.  The driver shall assume the

22  reasonable costs for the substance-abuse course.  As part of

23  the substance-abuse course, the program shall conduct a

24  substance-abuse evaluation of the driver, and notify the

25  parents or legal guardians of a driver under the age of 19

26  years of the results of the evaluation. As used in this

27  paragraph, the term "substance abuse" means the abuse of

28  alcohol or any substance named or described in Schedules I

29  through V of s. 893.03.  If a driver fails to complete the

30  substance-abuse education course and evaluation, the driver's

31  license shall not be reinstated by the department.

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    Florida Senate - 2000                             CS for SB 66
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  1         (d)  A minor under the age of 18 years who is proven to

  2  to have been driving with a blood-alcohol or breath-alcohol

  3  level of 0.02 or higher may be taken by a law enforcement

  4  officer to the addictions-receiving facility in the county in

  5  which the minor was found to be so driving, if the county

  6  makes the addictions-receiving facility available for such

  7  purpose.

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

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

10  the notice of suspension, a copy of the notice of suspension,

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

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

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

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

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

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

17  test was requested by a law enforcement officer or

18  correctional officer and that the person refused to submit to

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

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

21  bar the department from considering any materials submitted at

22  or before the hearing.

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

24  person should be suspended under this section and if the

25  notice of suspension has not already been served upon the

26  person by a law enforcement officer or correctional officer as

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

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

29  322.251, a temporary driving permit that expires 10 days after

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

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    Florida Senate - 2000                             CS for SB 66
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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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    Florida Senate - 2000                             CS for SB 66
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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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    Florida Senate - 2000                             CS for SB 66
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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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    Florida Senate - 2000                             CS for SB 66
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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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    Florida Senate - 2000                             CS for SB 66
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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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    Florida Senate - 2000                             CS for SB 66
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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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    Florida Senate - 2000                             CS for SB 66
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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.

  4

  5          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  6                              SB 66

  7

  8  The CS provides that when a driver subject to s. 322.2615,
    F.S., has a blood-alcohol or breath-alcohol level of 0.05 or
  9  higher, the license suspension shall remain in effect until
    the person completes a substance abuse course offered by a DUI
10  program licensed by DHSMV.

11  The CS deletes a provision in the bill authorizing an agency
    conducting a substance abuse course to refer the person to
12  another entity for substance abuse evaluation and treatment.
    The CS provides the DUI program shall conduct a substance
13  abuse evaluation of the driver, and notify the parents or
    legal guardians of drivers under the age of 19 years, of the
14  results of the evaluation.

15  The CS also provides a temporary driving permit issued at the
    time of issuance of the notice of suspension shall not be
16  effective until 12 hours after the notice of suspension is
    issued.
17
    The CS allows the use of results of a blood test obtained
18  during a traffic investigation to suspend a driver's license
    under this section.
19
    The CS makes a number of technical corrections including
20  deleting references to "percent" of alcohol level, and adding
    appropriate references to "blood-alcohol" and "breath-alcohol"
21  levels.

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