House Bill 0983c1
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    Florida House of Representatives - 2000              CS/HB 983
        By the Committee on Judiciary and Representatives Byrd and
    Murman
  1                      A bill to be entitled
  2         An act relating to driving or boating under the
  3         influence of alcohol or controlled substances;
  4         amending s. 316.193, F.S.; reducing the number
  5         of convictions required for a felony DUI;
  6         amending conditions for conviction in cases of
  7         accident, serious bodily injury, or death;
  8         removing a cross reference; allowing a law
  9         enforcement officer to place a person in
10         protective custody under certain circumstances;
11         requiring a person placed in protective custody
12         to pay reasonable costs of evaluation and
13         treatment under certain circumstances; amending
14         s. 316.1932, F.S.; requiring a law enforcement
15         officer to inform a person that refusal to
16         submit to certain tests is a misdemeanor;
17         amending s. 316.1933, F.S.; requiring a person
18         to submit to a blood test under certain
19         circumstances; providing that the test need not
20         be incidental to a lawful arrest; providing
21         that a breath alcohol test may substitute for a
22         blood alcohol test under certain circumstances;
23         creating s. 316.1939, F.S.; providing a penalty
24         for refusing to submit to a chemical test of
25         breath, urine, or blood; providing application;
26         amending s. 327.35, F.S.; reducing the number
27         of convictions required for a felony BUI;
28         amending conditions for conviction in cases of
29         accident, serious bodily injury, or death;
30         correcting cross references; allowing a law
31         enforcement officer to place a person in
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  1         protective custody under certain circumstances;
  2         requiring a person placed in protective custody
  3         to pay reasonable costs of evaluation and
  4         treatment under certain circumstances; amending
  5         s. 327.352, F.S.; requiring a law enforcement
  6         officer to inform a person that refusal to
  7         submit to certain tests is a misdemeanor;
  8         amending s. 327.353, F.S.; requiring a person
  9         to submit to a blood test under certain
10         circumstances; providing that the test need not
11         be incidental to a lawful arrest; providing
12         that a breath alcohol test may substitute for a
13         blood alcohol test under certain circumstances;
14         creating s. 327.359, F.S.; providing a penalty
15         for refusing to submit to a chemical test of
16         breath, urine, or blood; providing application;
17         creating s. 397.6755, F.S.; specifying grounds
18         for which a court may determine that criteria
19         exist for involuntary admission and treatment
20         of certain persons; requiring payment for such
21         evaluation and treatment from a certain fund;
22         requiring persons placed in such involuntary
23         custody to reimburse the provider of services
24         under certain circumstances; amending s.
25         921.0022, F.S.; including certain BUI offenses
26         within the offense severity ranking chart;
27         amending s. 938.07, F.S.; providing for
28         application of a fee to persons found guilty of
29         boating under the influence; correcting a cross
30         reference; providing an effective date.
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  1  Be It Enacted by the Legislature of the State of Florida:
  2
  3         Section 1.  Subsections (2), (3), (4), and (9) of
  4  section 316.193, Florida Statutes, are amended to read:
  5         316.193  Driving under the influence; penalties.--
  6         (2)(a)  Except as provided in paragraph (b), subsection
  7  (3), or subsection (4), any person who is convicted of a
  8  violation of subsection (1) shall be punished:
  9         1.  By a fine of:
10         a.  Not less than $250 or more than $500 for a first
11  conviction.
12         b.  Not less than $500 or more than $1,000 for a second
13  conviction.
14         c.  Not less than $1,000 or more than $2,500 for a
15  third conviction; and
16         2.  By imprisonment for:
17         a.  Not more than 6 months for a first conviction.
18         b.  Not more than 9 months for a second conviction.
19         c.  Not more than 12 months for a third conviction.
20         (b)  Any person who is convicted of a third fourth or
21  subsequent violation of this section is guilty of a felony of
22  the third degree, punishable as provided in s. 775.082, s.
23  775.083, or s. 775.084; however, the fine imposed for such
24  third fourth or subsequent violation may be not less than
25  $1,000.
26         (3)  Any person:
27         (a)  Who is in violation of subsection (1);
28         (b)  Who operates a vehicle; and
29         (c)  Who, by reason of such operation, causes or
30  contributes to the cause of:
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  1         1.  Damage to the property or person of another commits
  2  a misdemeanor of the first degree, punishable as provided in
  3  s. 775.082 or s. 775.083.
  4         2.  Serious bodily injury to another, as defined in s.
  5  316.1933, commits a felony of the third degree, punishable as
  6  provided in s. 775.082, s. 775.083, or s. 775.084.
  7         3.  The death of any human being commits DUI
  8  manslaughter, and commits:
  9         a.  A felony of the second degree, punishable as
10  provided in s. 775.082, s. 775.083, or s. 775.084.
11         b.  A felony of the first degree, punishable as
12  provided in s. 775.082, s. 775.083, or s. 775.084, if:
13         (I)  At the time of the crash, the person knew, or
14  should have known, that the crash occurred; and
15         (II)  The person failed to give information and render
16  aid as required by s. 316.062.
17         (4)  Any person who is convicted of a violation of
18  subsection (1) and who has a blood-alcohol level or
19  breath-alcohol level of 0.20 or higher, or any person who is
20  convicted of a violation of subsection (1) and who at the time
21  of the offense was accompanied in the vehicle by a person
22  under the age of 18 years, shall be punished:
23         (a)  By a fine of:
24         1.  Not less than $500 or more than $1,000 for a first
25  conviction.
26         2.  Not less than $1,000 or more than $2,000 for a
27  second conviction.
28         3.  Not less than $2,000 or more than $5,000 for a
29  third or subsequent conviction.
30         (b)  By imprisonment for:
31         1.  Not more than 9 months for a first conviction.
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  1         2.  Not more than 12 months for a second conviction.
  2         3.  Not more than 12 months for a third conviction.
  3
  4  For the purposes of this subsection, any conviction for a
  5  violation of s. 327.35, only the instant offense is required
  6  to be a violation of subsection (1) by a person who has a
  7  blood-alcohol level or breath-alcohol level of 0.20 or higher.
  8         (9)(a)  A person who is arrested for a violation of
  9  this section may not be released from custody:
10         1.(a)  Until the person is no longer under the
11  influence of alcoholic beverages, any chemical substance set
12  forth in s. 877.111, or any substance controlled under chapter
13  893 and affected to the extent that his or her normal
14  faculties are impaired;
15         2.(b)  Until the person's blood-alcohol level or
16  breath-alcohol level is less than 0.05; or
17         3.(c)  Until 8 hours have elapsed from the time the
18  person was arrested.
19         (b)  The arresting officer may place the person in
20  protective custody pursuant to s. 397.6772 if:
21         1.  The person has previously been convicted of a
22  violation of this section or s. 327.35;
23         2.  The person's blood-alcohol level or breath-alcohol
24  level, as determined by a test conducted incident to the
25  person's arrest, was 0.20 or greater;
26         3.  The person, by reason of operation of a motor
27  vehicle, has caused death or serious bodily injury as defined
28  in s. 316.1933; or
29         4.  The person is on pretrial release for a previous
30  offense under this section or s. 327.35.
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  1  The election to place a person in protective custody may be
  2  done at the time of arrest but transfer of the person to a
  3  facility shall not occur prior to the conclusion of the time
  4  period set forth in paragraph (a) or the time that the person
  5  is released on bail, whichever is later.  The provisions of
  6  this paragraph are in addition to, not in lieu of, the
  7  provisions of subsection (5).  A court shall order any person
  8  placed in protective custody pursuant to this paragraph who is
  9  subsequently convicted of a violation of this section to pay
10  the reasonable costs of evaluation and treatment.
11         Section 2.  Section 316.1932, Florida Statutes, is
12  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
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  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  misdemeanor and, in addition, will result in the suspension of
20  the person's privilege to operate a motor vehicle for a period
21  of 1 year for a first refusal, or for a period of 18 months if
22  the driving privilege of such person has been previously
23  suspended as a result of a refusal to submit to such a test or
24  tests.  The refusal to submit to a chemical or physical breath
25  test or to a urine test upon the request of a law enforcement
26  officer as provided in this section is admissible into
27  evidence in any 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.
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  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 misdemeanor and, in addition, will result in the suspension
31  of the person's privilege to operate a motor vehicle upon the
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  1  public highways of this state.  Any person who is capable of
  2  refusal shall be told that his or her failure to submit to
  3  such a blood test is a misdemeanor and, in addition, will
  4  result in the suspension of the person's privilege to operate
  5  a motor vehicle for a period of 1 year for a first refusal, or
  6  for a period of 18 months if the driving privilege of the
  7  person has been suspended previously as a result of a refusal
  8  to submit to such a test or tests.  The refusal to submit to a
  9  blood test upon the request of a law enforcement officer is
10  admissible in evidence in any 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.
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  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
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  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
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  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
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  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.  Subsection (1) of section 316.1933, Florida
24  Statutes, is amended to read:
25         316.1933  Blood test for impairment or intoxication in
26  cases of death or serious bodily injury; right to use
27  reasonable force.--
28         (1)(a)  Notwithstanding any recognized ability to
29  refuse to submit to the tests provided in s. 316.1932 or any
30  recognized power to revoke the implied consent to such tests,
31  If a law enforcement officer has probable cause to believe
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  1  that a motor vehicle driven by or in the actual physical
  2  control of a person under the influence of alcoholic
  3  beverages, any chemical substances, or any controlled
  4  substances has caused the death or serious bodily injury of a
  5  human being, such person shall submit, upon the request of a
  6  law enforcement officer shall require the person driving or in
  7  actual physical control of the motor vehicle to submit, to a
  8  test of the person's blood for the purpose of determining the
  9  alcoholic content thereof or the presence of chemical
10  substances as set forth in s. 877.111 or any substance
11  controlled under chapter 893.  The law enforcement officer may
12  use reasonable force if necessary to require such person to
13  submit to the administration of the blood test.  The blood
14  test shall be performed in a reasonable manner.
15  Notwithstanding s. 316.1932, the testing required by this
16  paragraph need not be incidental to a lawful arrest of the
17  person.
18         (b)  The term "serious bodily injury" means an injury
19  to any person, including the driver, which consists of a
20  physical condition that creates a substantial risk of death,
21  serious personal disfigurement, or protracted loss or
22  impairment of the function of any bodily member or organ.
23         (c)  The law enforcement officer shall offer any person
24  subject to a blood test under this subsection the opportunity
25  to submit to an approved chemical test of the person's breath
26  and, if the person submits to the test and a valid reading is
27  obtained, the blood test shall be waived.  This paragraph
28  shall not apply to any person who is unconscious or whose
29  mental or physical condition does not allow the administration
30  of a breath test or any person whom the law enforcement
31  officer has probable cause to believe was operating a motor
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  1  vehicle under the influence of any chemical substances as set
  2  forth in s. 877.111 or any controlled substances.
  3         Section 4.  Section 316.1939, Florida Statutes, is
  4  created to read:
  5         316.1939  Refusal to submit to testing; penalties.--
  6         (1)  Any person who refuses to submit to a chemical
  7  test of his or her breath, blood, or urine, as described in s.
  8  316.1932, upon the request of a law enforcement officer who
  9  has reasonable cause to believe such person was driving or was
10  in actual physical control of a motor vehicle while under the
11  influence of alcoholic beverages, chemical substances, or
12  controlled substances, commits a misdemeanor of the first
13  degree, punishable as provided in s. 775.082 or s. 775.083.
14         (2)  The disposition of any administrative proceeding
15  that relates to the suspension of a person's driving privilege
16  does not affect a criminal action under this section.
17         (3)  The disposition of a criminal action under this
18  section does not affect any administrative proceeding that
19  relates to the suspension of a person's driving privilege.
20         Section 5.  Subsections (2), (3), (4), and (8) of
21  section 327.35, Florida Statutes, are amended to read:
22         327.35  Boating under the influence; penalties;
23  "designated drivers".--
24         (2)(a)  Except as provided in paragraph (b), subsection
25  (3), or subsection (4), any person who is convicted of a
26  violation of subsection (1) shall be punished:
27         1.  By a fine of:
28         a.  Not less than $250 or more than $500 for a first
29  conviction.
30         b.  Not less than $500 or more than $1,000 for a second
31  conviction.
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  1         c.  Not less than $1,000 or more than $2,500 for a
  2  third conviction; and
  3         2.  By imprisonment for:
  4         a.  Not more than 6 months for a first conviction.
  5         b.  Not more than 9 months for a second conviction.
  6         c.  Not more than 12 months for a third conviction.
  7         (b)  Any person who is convicted of a third fourth or
  8  subsequent violation of this section is guilty of a felony of
  9  the third degree, punishable as provided in s. 775.082, s.
10  775.083, or s. 775.084; however, the fine imposed for such
11  third fourth or subsequent violation may not be less than
12  $1,000.
13         (3)  Any person:
14         (a)  Who is in violation of subsection (1);
15         (b)  Who operates a vessel; and
16         (c)  Who, by reason of such operation, causes or
17  contributes to the cause of:
18         1.  Damage to the property or person of another commits
19  a misdemeanor of the first degree, punishable as provided in
20  s. 775.082 or s. 775.083.
21         2.  Serious bodily injury to another, as defined in s.
22  327.353 316.1933, commits a felony of the third degree,
23  punishable as provided in s. 775.082, s. 775.083, or s.
24  775.084.
25         3.  The death of any human being commits BUI
26  manslaughter, and commits:
27         a.  A felony of the second degree, punishable as
28  provided in s. 775.082, s. 775.083, or s. 775.084.
29         b.  A felony of the first degree, punishable as
30  provided in s. 775.082, s. 775.083, or s. 775.084, if:
31
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  1         (I)  At the time of the accident, the person knew, or
  2  should have known, that the accident occurred; and
  3         (II)  The person failed to give information and render
  4  aid as required by s. 327.30 316.062.
  5
  6  This sub-subparagraph does not require that the person knew
  7  that the accident resulted in injury or death.
  8         (4)  Any person who is convicted of a violation of
  9  subsection (1) and who has a blood-alcohol level or
10  breath-alcohol level of 0.20 or higher, or any person who is
11  convicted of a violation of subsection (1) and who at the time
12  of the offense was accompanied in the vessel by a person under
13  the age of 18 years, shall be punished:
14         (a)  By a fine of:
15         1.  Not less than $500 or more than $1,000 for a first
16  conviction.
17         2.  Not less than $1,000 or more than $2,000 for a
18  second conviction.
19         3.  Not less than $2,000 or more than $5,000 for a
20  third or subsequent conviction.
21         (b)  By imprisonment for:
22         1.  Not more than 9 months for a first conviction.
23         2.  Not more than 12 months for a second conviction.
24         3.  Not more than 12 months for a third conviction.
25
26  For the purposes of this subsection, only the instant offense
27  is required to be a violation of subsection (1) by a person
28  who has a blood-alcohol level or breath-alcohol level of 0.20
29  or higher.
30         (8)(a)  A person who is arrested for a violation of
31  this section may not be released from custody:
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  1         1.(a)  Until the person is no longer under the
  2  influence of alcoholic beverages, any chemical substance set
  3  forth in s. 877.111, or any substance controlled under chapter
  4  893 and affected to the extent that his or her normal
  5  faculties are impaired;
  6         2.(b)  Until the person's blood-alcohol level or
  7  breath-alcohol level is less than 0.05; or
  8         3.(c)  Until 8 hours have elapsed from the time the
  9  person was arrested.
10         (b)  The arresting officer may place the person in
11  protective custody pursuant to s. 397.6772 if:
12         1.  The person has previously been convicted of a
13  violation of this section or s. 316.193;
14         2.  The person's blood-alcohol level or breath-alcohol
15  level, as determined by a test conducted incident to the
16  person's arrest, was 0.20 or greater;
17         3.  The person, by reason of operation of a vessel, has
18  caused death or serious bodily injury as defined in s.
19  327.353; or
20         4.  The person is on pretrial release for a previous
21  offense under this section or s. 316.193.
22
23  The election to place a person in protective custody may be
24  done at the time of arrest but transfer of the person to a
25  facility shall not occur prior to the conclusion of the time
26  period set forth in paragraph (a).  The provisions of this
27  paragraph are in addition to, not in lieu of, the provisions
28  of subsection (5).  A court shall order any person placed in
29  protective custody pursuant to this paragraph, who is
30  subsequently convicted of a violation of this section, to pay
31  the reasonable costs of evaluation and treatment.
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  1         Section 6.  Section 327.352, Florida Statutes, is
  2  amended to read:
  3         327.352  Breath, blood, and urine tests for alcohol,
  4  chemical substances, or controlled substances; implied
  5  consent; refusal right to refuse.--
  6         (1)(a)  The Legislature declares that the operation of
  7  a vessel is a privilege that must be exercised in a reasonable
  8  manner. In order to protect the public health and safety, it
  9  is essential that a lawful and effective means of reducing the
10  incidence of boating while impaired or intoxicated be
11  established. Therefore, any person who accepts the privilege
12  extended by the laws of this state of operating a vessel
13  within this state is, by so operating such vessel, deemed to
14  have given his or her consent to submit to an approved
15  chemical test or physical test including, but not limited to,
16  an infrared light test of his or her breath for the purpose of
17  determining the alcoholic content of his or her blood or
18  breath, and to a urine test for the purpose of detecting the
19  presence of chemical substances as set forth in s. 877.111 or
20  controlled substances, if the person is lawfully arrested for
21  any offense allegedly committed while the person was operating
22  a vessel while under the influence of alcoholic beverages,
23  chemical substances, or controlled substances.  The chemical
24  or physical breath test must be incidental to a lawful arrest
25  and administered at the request of a law enforcement officer
26  who has reasonable cause to believe such person was operating
27  the vessel within this state while under the influence of
28  alcoholic beverages. The urine test must be incidental to a
29  lawful arrest and administered at a detention facility or any
30  other facility, mobile or otherwise, which is equipped to
31  administer such tests at the request of a law enforcement
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  1  officer who has reasonable cause to believe such person was
  2  operating a vessel within this state while under the influence
  3  of controlled substances. The urine test shall be administered
  4  at a detention facility or any other facility, mobile or
  5  otherwise, which is equipped to administer such tests in a
  6  reasonable manner that will ensure the accuracy of the
  7  specimen and maintain the privacy of the individual involved.
  8  The administration of one type of test does not preclude the
  9  administration of another type of test.  The person shall be
10  told that his or her failure to submit to any lawful test of
11  his or her breath or urine, or both, is a misdemeanor and, in
12  addition, will result in a civil penalty of $500. The refusal
13  to submit to a chemical or physical breath or urine test upon
14  the request of a law enforcement officer as provided in this
15  section is admissible into evidence in any criminal
16  proceeding.
17         (b)1.  The blood-alcohol level must be based upon grams
18  of alcohol per 100 milliliters of blood. The breath-alcohol
19  level must be based upon grams of alcohol per 210 liters of
20  breath.
21         2.  An analysis of a person's breath, in order to be
22  considered valid under this section, must have been performed
23  substantially according to methods approved by the Department
24  of Law Enforcement.  For this purpose, the department may
25  approve satisfactory techniques or methods.  Any insubstantial
26  differences between approved techniques and actual testing
27  procedures in any individual case do not render the test or
28  test results invalid.
29         (c)  Any person who accepts the privilege extended by
30  the laws of this state of operating a vessel within this state
31  is, by operating such vessel, deemed to have given his or her
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  1  consent to submit to an approved blood test for the purpose of
  2  determining the alcoholic content of the blood or a blood test
  3  for the purpose of determining the presence of chemical
  4  substances or controlled substances as provided in this
  5  section if there is reasonable cause to believe the person was
  6  operating a vessel while under the influence of alcoholic
  7  beverages or chemical or controlled substances and the person
  8  appears for treatment at a hospital, clinic, or other medical
  9  facility and the administration of a breath or urine test is
10  impractical or impossible. As used in this paragraph, the term
11  "other medical facility" includes an ambulance or other
12  medical emergency vehicle. The blood test shall be performed
13  in a reasonable manner.  Any person who is incapable of
14  refusal by reason of unconsciousness or other mental or
15  physical condition is deemed not to have withdrawn his or her
16  consent to such test. Any person who is capable of refusal
17  shall be told that his or her failure to submit to such a
18  blood test is a misdemeanor and, in addition, will result in a
19  civil penalty of $500. The refusal to submit to a blood test
20  upon the request of a law enforcement officer shall be
21  admissible in evidence in any criminal proceeding.
22         (d)  If the arresting officer does not request a
23  chemical or physical breath test of the person arrested for
24  any offense allegedly committed while the person was operating
25  a vessel while under the influence of alcoholic beverages or
26  controlled substances, the person may request the arresting
27  officer to have a chemical or physical test made of the
28  arrested person's breath or a test of the urine or blood for
29  the purpose of determining the alcoholic content of the
30  person's blood or breath or the presence of chemical
31
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  1  substances or controlled substances; and, if so requested, the
  2  arresting officer shall have the test performed.
  3         (e)1.  The tests determining the weight of alcohol in
  4  the defendant's blood or breath shall be administered at the
  5  request of a law enforcement officer substantially in
  6  accordance with rules of the Department of Law Enforcement.
  7  Such rules must specify precisely the test or tests that are
  8  approved by the Department of Law Enforcement for reliability
  9  of result and ease of administration, and must provide an
10  approved method of administration which must be followed in
11  all such tests given under this section.  However, the failure
12  of a law enforcement officer to request the withdrawal of
13  blood does not affect the admissibility of a test of blood
14  withdrawn for medical purposes.
15         2.  Only a physician, certified paramedic, registered
16  nurse, licensed practical nurse, other personnel authorized by
17  a hospital to draw blood, or duly licensed clinical laboratory
18  director, supervisor, technologist, or technician, acting at
19  the request of a law enforcement officer, may withdraw blood
20  for the purpose of determining its alcoholic content or the
21  presence of chemical substances or controlled substances
22  therein. However, the failure of a law enforcement officer to
23  request the withdrawal of blood does not affect the
24  admissibility of a test of blood withdrawn for medical
25  purposes.
26         3.  The person tested may, at his or her own expense,
27  have a physician, registered nurse, other personnel authorized
28  by a hospital to draw blood, or duly licensed clinical
29  laboratory director, supervisor, technologist, or technician,
30  or other person of his or her own choosing administer an
31  independent test in addition to the test administered at the
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  1  direction of the law enforcement officer for the purpose of
  2  determining the amount of alcohol in the person's blood or
  3  breath or the presence of chemical substances or controlled
  4  substances at the time alleged, as shown by chemical analysis
  5  of his or her blood or urine, or by chemical or physical test
  6  of his or her breath. The failure or inability to obtain an
  7  independent test by a person does not preclude the
  8  admissibility in evidence of the test taken at the direction
  9  of the law enforcement officer.  The law enforcement officer
10  shall not interfere with the person's opportunity to obtain
11  the independent test and shall provide the person with timely
12  telephone access to secure the test, but the burden is on the
13  person to arrange and secure the test at the person's own
14  expense.
15         4.  Upon the request of the person tested, full
16  information concerning the test taken at the direction of the
17  law enforcement officer shall be made available to the person
18  or his or her attorney.
19         5.  A hospital, clinical laboratory, medical clinic, or
20  similar medical institution or physician, certified paramedic,
21  registered nurse, licensed practical nurse, other personnel
22  authorized by a hospital to draw blood, or duly licensed
23  clinical laboratory director, supervisor, technologist, or
24  technician, or other person assisting a law enforcement
25  officer does not incur any civil or criminal liability as a
26  result of the withdrawal or analysis of a blood or urine
27  specimen, or the chemical or physical test of a person's
28  breath pursuant to accepted medical standards when requested
29  by a law enforcement officer, regardless of whether or not the
30  subject resisted administration of the test.
31
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  1         (2)  The results of any test administered pursuant to
  2  this section for the purpose of detecting the presence of any
  3  controlled substance shall not be admissible as evidence in a
  4  criminal prosecution for the possession of a controlled
  5  substance.
  6         (3)  Notwithstanding any provision of law pertaining to
  7  the confidentiality of hospital records or other medical
  8  records, information relating to the alcoholic content of the
  9  blood or breath or the presence of chemical substances or
10  controlled substances in the blood obtained pursuant to this
11  section shall be released to a court, prosecuting attorney,
12  defense attorney, or law enforcement officer in connection
13  with an alleged violation of s. 327.35 upon request for such
14  information.
15         Section 7.  Subsection (1) of section 327.353, Florida
16  Statutes, is amended to read:
17         327.353  Blood test for impairment or intoxication in
18  cases of death or serious bodily injury; right to use
19  reasonable force.--
20         (1)(a)  Notwithstanding any recognized ability to
21  refuse to submit to the tests provided in s. 327.352 or any
22  recognized power to revoke the implied consent to such tests,
23  If a law enforcement officer has probable cause to believe
24  that a vessel operated by a person under the influence of
25  alcoholic beverages, any chemical substances, or any
26  controlled substances has caused the death or serious bodily
27  injury of a human being, the person shall submit, upon the
28  request of a law enforcement officer shall require the person
29  operating or in actual physical control of the vessel to
30  submit, to a test of the person's blood for the purpose of
31  determining the alcoholic content thereof or the presence of
                                  24
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  1  chemical substances as set forth in s. 877.111 or any
  2  substance controlled under chapter 893. The law enforcement
  3  officer may use reasonable force if necessary to require the
  4  person to submit to the administration of the blood test. The
  5  blood test shall be performed in a reasonable manner.
  6  Notwithstanding s. 327.352, the testing required by this
  7  paragraph need not be incidental to a lawful arrest of the
  8  person.
  9         (b)  The term "serious bodily injury" means an injury
10  to any person, including the operator, which consists of a
11  physical condition that creates a substantial risk of death,
12  serious personal disfigurement, or protracted loss or
13  impairment of the function of any bodily member or organ.
14         (c)  The law enforcement officer shall offer any person
15  subject to a blood test under this subsection the opportunity
16  to submit to an approved chemical test of the person's breath
17  and, if the person submits to the test and a valid reading is
18  obtained, the blood test shall be waived. This paragraph shall
19  not apply to any person who is unconscious or whose mental or
20  physical condition does not allow the administration of a
21  breath test or any person whom the law enforcement officer has
22  probable cause to believe was operating a vessel under the
23  influence of any chemical substances as set forth in s.
24  877.111 or any controlled substances.
25         Section 8.  Section 327.359, Florida Statutes, is
26  created to read:
27         327.359  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  327.352, upon the request of a law enforcement officer who has
31  reasonable cause to believe such person was driving or was in
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  1  actual physical control of a vessel while under the influence
  2  of alcoholic beverages, chemical substances, or controlled
  3  substances, commits a misdemeanor of the first degree,
  4  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 9.  Section 397.6755, Florida Statutes, is
12  created to read:
13         397.6755  Evidence of criteria for involuntary
14  admissions and involuntary treatment; funding.--
15         (1)  In addition to any other ground that may give rise
16  to a finding that a person has lost the power of self-control
17  with respect to substance use and is likely to inflict
18  physical harm on himself or herself or another, a court may
19  find that a person has lost the power of self-control with
20  respect to substance use and is likely to inflict physical
21  harm on himself or herself or another if the person has been
22  arrested for a violation of s. 316.193 or s. 327.35, and:
23         (a)  The person has previous to the arrest been
24  convicted of a violation of s. 316.193 or s. 327.35;
25         (b)  The person's blood-alcohol level or breath-alcohol
26  level, as determined by a test conducted incident to the
27  person's arrest, was 0.20 or greater;
28         (c)  The person, by reason of operation of a motor
29  vehicle or a vessel, has caused death or serious bodily injury
30  as defined in s. 316.1933 or s. 327.353; or
31
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  1         (d)  The person is on pretrial release for a previous
  2  offense under s. 316.193 or s. 327.35.
  3         (2)  Any person who meets the criteria for involuntary
  4  admission pursuant to s. 397.675, who was placed in protective
  5  custody pursuant to s. 316.193(9)(b) or s. 327.35(8)(b), and
  6  who is a qualified resident as defined in s. 212.055(4)(d)
  7  shall have the costs of evaluation and treatment paid from the
  8  fund established pursuant to s. 212.055(4)(e).  A court shall
  9  order any person whose care is paid for under this subsection,
10  who is subsequently convicted of a violation of s. 316.193 or
11  s. 327.35, to reimburse the provider of the services for the
12  reasonable cost of the services provided and, if the person is
13  unable to reimburse the provider, a civil judgment in favor of
14  such fund shall be entered.
15         Section 10.  Paragraphs (f) and (i) of subsection (3)
16  of section 921.0022, Florida Statutes, are amended to read:
17         921.0022  Criminal Punishment Code; offense severity
18  ranking chart.--
19         (3)  OFFENSE SEVERITY RANKING CHART
20
21  Florida           Felony
22  Statute           Degree             Description
23
24
25                              (f)  LEVEL 6
26  316.027(1)(b)      2nd      Accident involving death, failure
27                              to stop; leaving scene.
28  316.193(2)(b)      3rd      Felony DUI, 3rd 4th or subsequent
29                              conviction.
30  327.35(2)(b)       3rd      Felony BUI, 3rd or subsequent
31                              conviction.
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  1  775.0875(1)        3rd      Taking firearm from law
  2                              enforcement officer.
  3  775.21(10)         3rd      Sexual predators; failure to
  4                              register; failure to renew
  5                              driver's license or
  6                              identification card.
  7  784.021(1)(a)      3rd      Aggravated assault; deadly weapon
  8                              without intent to kill.
  9  784.021(1)(b)      3rd      Aggravated assault; intent to
10                              commit felony.
11  784.041            3rd      Felony battery.
12  784.048(3)         3rd      Aggravated stalking; credible
13                              threat.
14  784.048(5)         3rd      Aggravated stalking of person
15                              under 16.
16  784.07(2)(c)       2nd      Aggravated assault on law
17                              enforcement officer.
18  784.08(2)(b)       2nd      Aggravated assault on a person 65
19                              years of age or older.
20  784.081(2)         2nd      Aggravated assault on specified
21                              official or employee.
22  784.082(2)         2nd      Aggravated assault by detained
23                              person on visitor or other
24                              detainee.
25  784.083(2)         2nd      Aggravated assault on code
26                              inspector.
27  787.02(2)          3rd      False imprisonment; restraining
28                              with purpose other than those in
29                              s. 787.01.
30  790.115(2)(d)      2nd      Discharging firearm or weapon on
31                              school property.
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  1  790.161(2)         2nd      Make, possess, or throw
  2                              destructive device with intent to
  3                              do bodily harm or damage
  4                              property.
  5  790.164(1)         2nd      False report of deadly explosive
  6                              or act of arson or violence to
  7                              state property.
  8  790.19             2nd      Shooting or throwing deadly
  9                              missiles into dwellings, vessels,
10                              or vehicles.
11  794.011(8)(a)      3rd      Solicitation of minor to
12                              participate in sexual activity by
13                              custodial adult.
14  794.05(1)          2nd      Unlawful sexual activity with
15                              specified minor.
16  800.04(5)(d)       3rd      Lewd or lascivious molestation;
17                              victim 12 years of age or older
18                              but less than 16 years; offender
19                              less than 18 years.
20  800.04(6)(b)       2nd      Lewd or lascivious conduct;
21                              offender 18 years of age or
22                              older.
23  806.031(2)         2nd      Arson resulting in great bodily
24                              harm to firefighter or any other
25                              person.
26  810.02(3)(c)       2nd      Burglary of occupied structure;
27                              unarmed; no assault or battery.
28  812.014(2)(b)      2nd      Property stolen $20,000 or more,
29                              but less than $100,000, grand
30                              theft in 2nd degree.
31
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  1  812.13(2)(c)       2nd      Robbery, no firearm or other
  2                              weapon (strong-arm robbery).
  3  817.034(4)(a)1.    1st      Communications fraud, value
  4                              greater than $50,000.
  5  817.4821(5)        2nd      Possess cloning paraphernalia
  6                              with intent to create cloned
  7                              cellular telephones.
  8  825.102(1)         3rd      Abuse of an elderly person or
  9                              disabled adult.
10  825.102(3)(c)      3rd      Neglect of an elderly person or
11                              disabled adult.
12  825.1025(3)        3rd      Lewd or lascivious molestation of
13                              an elderly person or disabled
14                              adult.
15  825.103(2)(c)      3rd      Exploiting an elderly person or
16                              disabled adult and property is
17                              valued at less than $20,000.
18  827.03(1)          3rd      Abuse of a child.
19  827.03(3)(c)       3rd      Neglect of a child.
20  827.071(2)&(3)     2nd      Use or induce a child in a sexual
21                              performance, or promote or direct
22                              such performance.
23  836.05             2nd      Threats; extortion.
24  836.10             2nd      Written threats to kill or do
25                              bodily injury.
26  843.12             3rd      Aids or assists person to escape.
27  847.0135(3)        3rd      Solicitation of a child, via a
28                              computer service, to commit an
29                              unlawful sex act.
30
31
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  1  914.23             2nd      Retaliation against a witness,
  2                              victim, or informant, with bodily
  3                              injury.
  4  943.0435(9)        3rd      Sex offenders; failure to comply
  5                              with reporting requirements.
  6  944.35(3)(a)2.     3rd      Committing malicious battery upon
  7                              or inflicting cruel or inhuman
  8                              treatment on an inmate or
  9                              offender on community
10                              supervision, resulting in great
11                              bodily harm.
12  944.40             2nd      Escapes.
13  944.46             3rd      Harboring, concealing, aiding
14                              escaped prisoners.
15  944.47(1)(a)5.     2nd      Introduction of contraband
16                              (firearm, weapon, or explosive)
17                              into correctional facility.
18  951.22(1)          3rd      Intoxicating drug, firearm, or
19                              weapon introduced into county
20                              facility.
21                              (i)  LEVEL 9
22  316.193
23   (3)(c)3.b.        1st      DUI manslaughter; failing to
24                              render aid or give information.
25  327.35(3)(c)3.b.   1st      BUI manslaughter; failing to
26                              render aid or give information.
27  782.04(1)          1st      Attempt, conspire, or solicit to
28                              commit premeditated murder.
29
30
31
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  1  782.04(3)          1st,PBL   Accomplice to murder in
  2                              connection with arson, sexual
  3                              battery, robbery, burglary, and
  4                              other specified felonies.
  5  782.051(1)         1st      Attempted felony murder while
  6                              perpetrating or attempting to
  7                              perpetrate a felony enumerated in
  8                              s. 782.04(3).
  9  782.07(2)          1st      Aggravated manslaughter of an
10                              elderly person or disabled adult.
11  787.01(1)(a)1.     1st,PBL  Kidnapping; hold for ransom or
12                              reward or as a shield or hostage.
13  787.01(1)(a)2.     1st,PBL  Kidnapping with intent to commit
14                              or facilitate commission of any
15                              felony.
16  787.01(1)(a)4.     1st,PBL  Kidnapping with intent to
17                              interfere with performance of any
18                              governmental or political
19                              function.
20  787.02(3)(a)       1st      False imprisonment; child under
21                              age 13; perpetrator also commits
22                              aggravated child abuse, sexual
23                              battery, or lewd or lascivious
24                              battery, molestation, conduct, or
25                              exhibition.
26  790.161            1st      Attempted capital destructive
27                              device offense.
28  794.011(2)         1st      Attempted sexual battery; victim
29                              less than 12 years of age.
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    Florida House of Representatives - 2000              CS/HB 983
    687-132-00
  1  794.011(2)         Life     Sexual battery; offender younger
  2                              than 18 years and commits sexual
  3                              battery on a person less than 12
  4                              years.
  5  794.011(4)         1st      Sexual battery; victim 12 years
  6                              or older, certain circumstances.
  7  794.011(8)(b)      1st      Sexual battery; engage in sexual
  8                              conduct with minor 12 to 18 years
  9                              by person in familial or
10                              custodial authority.
11  800.04(5)(b)       1st      Lewd or lascivious molestation;
12                              victim less than 12 years;
13                              offender 18 years or older.
14  812.13(2)(a)       1st,PBL  Robbery with firearm or other
15                              deadly weapon.
16  812.133(2)(a)      1st,PBL  Carjacking; firearm or other
17                              deadly weapon.
18  827.03(2)          1st      Aggravated child abuse.
19  847.0145(1)        1st      Selling, or otherwise
20                              transferring custody or control,
21                              of a minor.
22  847.0145(2)        1st      Purchasing, or otherwise
23                              obtaining custody or control, of
24                              a minor.
25  859.01             1st      Poisoning food, drink, medicine,
26                              or water with intent to kill or
27                              injure another person.
28  893.135            1st      Attempted capital trafficking
29                              offense.
30  893.135(1)(a)3.    1st      Trafficking in cannabis, more
31                              than 10,000 lbs.
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CODING: Words stricken are deletions; words underlined are additions.
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  1  893.135
  2   (1)(b)1.c.        1st      Trafficking in cocaine, more than
  3                              400 grams, less than 150
  4                              kilograms.
  5  893.135
  6   (1)(c)1.c.        1st      Trafficking in illegal drugs,
  7                              more than 28 grams, less than 30
  8                              kilograms.
  9  893.135
10   (1)(d)1.c.        1st      Trafficking in phencyclidine,
11                              more than 400 grams.
12  893.135
13   (1)(e)1.c.        1st      Trafficking in methaqualone, more
14                              than 25 kilograms.
15  893.135
16   (1)(f)1.c.        1st      Trafficking in amphetamine, more
17                              than 200 grams.
18         Section 11.  Section 938.07, Florida Statutes, is
19  amended to read:
20         938.07  Driving or boating under the
21  influence.--Notwithstanding any other provision of s. 316.193
22  or s. 327.35, a court cost of $135 shall be added to any fine
23  imposed pursuant to s. 316.193 or s. 327.35, of which $25
24  shall be deposited in the Emergency Medical Services Trust
25  Fund, $50 shall be deposited in the Criminal Justice Standards
26  and Training Trust Fund of the Department of Law Enforcement
27  to be used for operational expenses in conducting the
28  statewide criminal analysis laboratory system established in
29  s. 943.32, and $60 shall be deposited in the Brain and Spinal
30  Cord Injury Rehabilitation Trust Fund created in s. 381.79
31  413.613.
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  1         Section 12.  There is hereby appropriated from the
  2  General Revenue Fund to the Florida Department of Law
  3  Enforcement the sum of $3,500,000 for the purchase of breath
  4  testing equipment to be provided to state and local law
  5  enforcement agencies.
  6         Section 13.  This act shall take effect January 1,
  7  2001.
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