CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
CHAMBER ACTION
Senate House
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11 Representative(s) Simmons offered the following:
12
13 Amendment (with title amendment)
14 Remove everything after the enacting clause
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16 and insert:
17 Section 1. Subsections (2), (3), and (4) of section
18 316.193, Florida Statutes, are amended, and subsection (11) is
19 added to said section, to read:
20 316.193 Driving under the influence; penalties.--
21 (2)(a) Except as provided in paragraph (b), subsection
22 (3), or subsection (4), any person who is convicted of a
23 violation of subsection (1) shall be punished:
24 1. By a fine of:
25 a. Not less than $250 or more than $500 for a first
26 conviction.
27 b. Not less than $500 or more than $1,000 for a second
28 conviction.
29 c. Not less than $1,000 or more than $2,500 for a
30 third conviction; and
31 2. By imprisonment for:
1
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 a. Not more than 6 months for a first conviction.
2 b. Not more than 9 months for a second conviction.
3 c. Not more than 12 months for a third conviction.
4 3. For a second conviction, by mandatory placement for
5 a period of at least 1 year, at the convicted person's sole
6 expense, of an ignition interlock device approved by the
7 department in accordance with s. 316.1937 upon all vehicles
8 that are individually or jointly leased or owned and routinely
9 operated by the convicted person. The installation of such
10 device may not occur before July 1, 2003.
11 (b)1. Any person who is convicted of a third fourth or
12 subsequent violation of this section for an offense that
13 occurs within 10 years after a prior conviction for a
14 violation of this section commits is guilty of a felony of the
15 third degree, punishable as provided in s. 775.082, s.
16 775.083, or s. 775.084. In addition, the court shall order the
17 mandatory placement for a period of not less than 2 years, at
18 the convicted person's sole expense, of an ignition interlock
19 device approved by the department in accordance with s.
20 316.1937 upon all vehicles that are individually or jointly
21 leased or owned and routinely operated by the convicted
22 person. The installation of such device may not occur before
23 July 1, 2003.
24 2. Any person who is convicted of a third violation of
25 this section for an offense that occurs more than 10 years
26 after the date of a prior conviction for a violation of this
27 section shall be punished by a fine of not less than $1,000 or
28 more than $2,500 and by imprisonment for not more than 12
29 months. In addition, the court shall order the mandatory
30 placement for a period of at least 2 years, at the convicted
31 person's sole expense, of an ignition interlock device
2
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 approved by the department in accordance with s. 316.1937 upon
2 all vehicles that are individually or jointly leased or owned
3 and routinely operated by the convicted person. The
4 installation of such device may not occur before July 1, 2003.
5 3. Any person who is convicted of a fourth or
6 subsequent violation of this section, regardless of when any
7 prior conviction for a violation of this section occurred,
8 commits a felony of the third degree, punishable as provided
9 in s. 775.082, s. 775.083, or s. 775.084.; However, the fine
10 imposed for such fourth or subsequent violation may be not
11 less than $1,000.
12 (3) Any person:
13 (a) Who is in violation of subsection (1);
14 (b) Who operates a vehicle; and
15 (c) Who, by reason of such operation, causes or
16 contributes to causing:
17 1. Damage to the property or person of another commits
18 a misdemeanor of the first degree, punishable as provided in
19 s. 775.082 or s. 775.083.
20 2. Serious bodily injury to another, as defined in s.
21 316.1933, commits a felony of the third degree, punishable as
22 provided in s. 775.082, s. 775.083, or s. 775.084.
23 3. The death of any human being commits DUI
24 manslaughter, and commits:
25 a. A felony of the second degree, punishable as
26 provided in s. 775.082, s. 775.083, or s. 775.084.
27 b. A felony of the first degree, punishable as
28 provided in s. 775.082, s. 775.083, or s. 775.084, if:
29 (I) At the time of the crash, the person knew, or
30 should have known, that the crash occurred; and
31 (II) The person failed to give information and render
3
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 aid as required by s. 316.062.
2 (4) Any person who is convicted of a violation of
3 subsection (1) and who has a blood-alcohol level or
4 breath-alcohol level of 0.20 or higher, or any person who is
5 convicted of a violation of subsection (1) and who at the time
6 of the offense was accompanied in the vehicle by a person
7 under the age of 18 years, shall be punished:
8 (a) By a fine of:
9 1. Not less than $500 or more than $1,000 for a first
10 conviction.
11 2. Not less than $1,000 or more than $2,000 for a
12 second conviction.
13 3. Not less than $2,000 or more than $5,000 for a
14 third or subsequent conviction.
15 (b) By imprisonment for:
16 1. Not more than 9 months for a first conviction.
17 2. Not more than 12 months for a second conviction.
18 3. Not more than 12 months for a third conviction.
19
20 For the purposes of this subsection, any conviction for a
21 violation of s. 327.35, only the instant offense is required
22 to be a violation of subsection (1) by a person who has a
23 blood-alcohol level or breath-alcohol level of 0.20 or higher.
24 (c) In addition to the penalties in paragraphs (a) and
25 (b), the court shall order the mandatory placement, at the
26 convicted person's sole expense, of an ignition interlock
27 device approved by the department in accordance with s.
28 316.1937 upon all vehicles that are individually or jointly
29 leased or owned and routinely operated by the convicted person
30 for up to 6 months for the first offense and for at least 2
31 years for a second offense. The installation of such device
4
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 may not occur before July 1, 2003.
2 (11) The Department of Highway Safety and Motor
3 Vehicles is directed to adopt rules providing for the
4 implementation of the use of ignition interlock devices.
5 Section 2. Section 316.1932, Florida Statutes, is
6 amended to read:
7 316.1932 Breath, blood, and urine tests for alcohol,
8 chemical substances, or controlled substances; implied
9 consent; refusal right to refuse.--
10 (1)(a)1. Any person who accepts the privilege extended
11 by the laws of this state of operating a motor vehicle within
12 this state is, by so operating such vehicle, deemed to have
13 given his or her consent to submit to an approved chemical
14 test or physical test including, but not limited to, an
15 infrared light test of his or her breath for the purpose of
16 determining the alcoholic content of his or her blood or
17 breath, and to a urine test for the purpose of detecting the
18 presence of chemical substances as set forth in s. 877.111 or
19 controlled substances, if the person is lawfully arrested for
20 any offense allegedly committed while the person was driving
21 or was in actual physical control of a motor vehicle while
22 under the influence of alcoholic beverages, chemical
23 substances, or controlled substances. The chemical or
24 physical breath test must be incidental to a lawful arrest and
25 administered at the request of a law enforcement officer who
26 has reasonable cause to believe such person was driving or was
27 in actual physical control of the motor vehicle within this
28 state while under the influence of alcoholic beverages. The
29 urine test must be incidental to a lawful arrest and
30 administered at a detention facility or any other facility,
31 mobile or otherwise, which is equipped to administer such
5
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 tests at the request of a law enforcement officer who has
2 reasonable cause to believe such person was driving or was in
3 actual physical control of a motor vehicle within this state
4 while under the influence of controlled substances. The urine
5 test shall be administered at a detention facility or any
6 other facility, mobile or otherwise, which is equipped to
7 administer such tests in a reasonable manner that will ensure
8 the accuracy of the specimen and maintain the privacy of the
9 individual involved. The administration of one type of test
10 does not preclude the administration of another type of test.
11 The person shall be told that his or her failure to submit to
12 any lawful test of his or her breath or urine, or both, will
13 result in the suspension of the person's privilege to operate
14 a motor vehicle for a period of 1 year for a first refusal, or
15 for a period of 18 months if the driving privilege of such
16 person has been previously suspended as a result of a refusal
17 to submit to such a test or tests, and shall also be told that
18 if he or she refuses to submit to a lawful test of his or her
19 breath or urine, or both, and his or her driving privilege has
20 been previously suspended for a prior refusal to submit to a
21 lawful test of his or her breath, urine, or blood, he or she
22 commits a misdemeanor in addition to any other penalties. The
23 refusal to submit to a chemical or physical breath test or to
24 a urine test upon the request of a law enforcement officer as
25 provided in this section is admissible into evidence in any
26 criminal proceeding.
27 2. The Alcohol Testing Program within the Department
28 of Law Enforcement is responsible for the regulation of the
29 operation, inspection, and registration of breath test
30 instruments utilized under the driving and boating under the
31 influence provisions and related provisions located in this
6
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 chapter and chapters 322 and 327. The program is responsible
2 for the regulation of the individuals who operate, inspect,
3 and instruct on the breath test instruments utilized in the
4 driving and boating under the influence provisions and related
5 provisions located in this chapter and chapters 322 and 327.
6 The program is further responsible for the regulation of blood
7 analysts who conduct blood testing to be utilized under the
8 driving and boating under the influence provisions and related
9 provisions located in this chapter and chapters 322 and 327.
10 The program shall:
11 a. Establish uniform criteria for the issuance of
12 permits to breath test operators, agency inspectors,
13 instructors, blood analysts, and instruments.
14 b. Have the authority to permit breath test operators,
15 agency inspectors, instructors, blood analysts, and
16 instruments.
17 c. Have the authority to discipline and suspend,
18 revoke, or renew the permits of breath test operators, agency
19 inspectors, instructors, blood analysts, and instruments.
20 d. Establish uniform requirements for instruction and
21 curricula for the operation and inspection of approved
22 instruments.
23 e. Have the authority to specify one approved
24 curriculum for the operation and inspection of approved
25 instruments.
26 f. Establish a procedure for the approval of breath
27 test operator and agency inspector classes.
28 g. Have the authority to approve or disapprove breath
29 test instruments and accompanying paraphernalia for use
30 pursuant to the driving and boating under the influence
31 provisions and related provisions located in this chapter and
7
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 chapters 322 and 327.
2 h. With the approval of the executive director of the
3 Department of Law Enforcement, make and enter into contracts
4 and agreements with other agencies, organizations,
5 associations, corporations, individuals, or federal agencies
6 as are necessary, expedient, or incidental to the performance
7 of duties.
8 i. Issue final orders which include findings of fact
9 and conclusions of law and which constitute final agency
10 action for the purpose of chapter 120.
11 j. Enforce compliance with the provisions of this
12 section through civil or administrative proceedings.
13 k. Make recommendations concerning any matter within
14 the purview of this section, this chapter, chapter 322, or
15 chapter 327.
16 l. Promulgate rules for the administration and
17 implementation of this section, including definitions of
18 terms.
19 m. Consult and cooperate with other entities for the
20 purpose of implementing the mandates of this section.
21 n. Have the authority to approve the type of blood
22 test utilized under the driving and boating under the
23 influence provisions and related provisions located in this
24 chapter and chapters 322 and 327.
25 o. Have the authority to specify techniques and
26 methods for breath alcohol testing and blood testing utilized
27 under the driving and boating under the influence provisions
28 and related provisions located in this chapter and chapters
29 322 and 327.
30 p. Have the authority to approve repair facilities for
31 the approved breath test instruments, including the authority
8
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 to set criteria for approval.
2
3 Nothing in this section shall be construed to supersede
4 provisions in this chapter and chapters 322 and 327. The
5 specifications in this section are derived from the power and
6 authority previously and currently possessed by the Department
7 of Law Enforcement and are enumerated to conform with the
8 mandates of chapter 99-379, Laws of Florida.
9 (b)1. The blood-alcohol level must be based upon grams
10 of alcohol per 100 milliliters of blood. The breath-alcohol
11 level must be based upon grams of alcohol per 210 liters of
12 breath.
13 2. An analysis of a person's breath, in order to be
14 considered valid under this section, must have been performed
15 substantially according to methods approved by the Department
16 of Law Enforcement. For this purpose, the department may
17 approve satisfactory techniques or methods. Any insubstantial
18 differences between approved techniques and actual testing
19 procedures in any individual case do not render the test or
20 test results invalid.
21 (c) Any person who accepts the privilege extended by
22 the laws of this state of operating a motor vehicle within
23 this state is, by operating such vehicle, deemed to have given
24 his or her consent to submit to an approved blood test for the
25 purpose of determining the alcoholic content of the blood or a
26 blood test for the purpose of determining the presence of
27 chemical substances or controlled substances as provided in
28 this section if there is reasonable cause to believe the
29 person was driving or in actual physical control of a motor
30 vehicle while under the influence of alcoholic beverages or
31 chemical or controlled substances and the person appears for
9
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 treatment at a hospital, clinic, or other medical facility and
2 the administration of a breath or urine test is impractical or
3 impossible. As used in this paragraph, the term "other medical
4 facility" includes an ambulance or other medical emergency
5 vehicle. The blood test shall be performed in a reasonable
6 manner. Any person who is incapable of refusal by reason of
7 unconsciousness or other mental or physical condition is
8 deemed not to have withdrawn his or her consent to such test.
9 A blood test may be administered whether or not the person is
10 told that his or her failure to submit to such a blood test
11 will result in the suspension of the person's privilege to
12 operate a motor vehicle upon the public highways of this state
13 and that a refusal to submit to a lawful test of his or her
14 blood, if his or her driving privilege has been previously
15 suspended for refusal to submit to a lawful test of his or her
16 breath, urine, or blood, is a misdemeanor. Any person who is
17 capable of refusal shall be told that his or her failure to
18 submit to such a blood test will result in the suspension of
19 the person's privilege to operate a motor vehicle for a period
20 of 1 year for a first refusal, or for a period of 18 months if
21 the driving privilege of the person has been suspended
22 previously as a result of a refusal to submit to such a test
23 or tests, and that a refusal to submit to a lawful test of his
24 or her blood, if his or her driving privilege has been
25 previously suspended for a prior refusal to submit to a lawful
26 test of his or her breath, urine, or blood, is a misdemeanor.
27 The refusal to submit to a blood test upon the request of a
28 law enforcement officer is admissible in evidence in any
29 criminal proceeding.
30 (d) If the arresting officer does not request a
31 chemical or physical breath test of the person arrested for
10
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 any offense allegedly committed while the person was driving
2 or was in actual physical control of a motor vehicle while
3 under the influence of alcoholic beverages or controlled
4 substances, such person may request the arresting officer to
5 have a chemical or physical test made of the arrested person's
6 breath or a test of the urine or blood for the purpose of
7 determining the alcoholic content of the person's blood or
8 breath or the presence of chemical substances or controlled
9 substances; and, if so requested, the arresting officer shall
10 have the test performed.
11 (e)1. By applying for a driver's license and by
12 accepting and using a driver's license, the person holding the
13 driver's license is deemed to have expressed his or her
14 consent to the provisions of this section.
15 2. A nonresident or any other person driving in a
16 status exempt from the requirements of the driver's license
17 law, by his or her act of driving in such exempt status, is
18 deemed to have expressed his or her consent to the provisions
19 of this section.
20 3. A warning of the consent provision of this section
21 shall be printed above the signature line on each new or
22 renewed driver's license.
23 (f)1. The tests determining the weight of alcohol in
24 the defendant's blood or breath shall be administered at the
25 request of a law enforcement officer substantially in
26 accordance with rules of the Department of Law Enforcement.
27 Such rules must specify precisely the test or tests that are
28 approved by the Department of Law Enforcement for reliability
29 of result and ease of administration, and must provide an
30 approved method of administration which must be followed in
31 all such tests given under this section. However, the failure
11
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 of a law enforcement officer to request the withdrawal of
2 blood does not affect the admissibility of a test of blood
3 withdrawn for medical purposes.
4 2.a. Only a physician, certified paramedic, registered
5 nurse, licensed practical nurse, other personnel authorized by
6 a hospital to draw blood, or duly licensed clinical laboratory
7 director, supervisor, technologist, or technician, acting at
8 the request of a law enforcement officer, may withdraw blood
9 for the purpose of determining its alcoholic content or the
10 presence of chemical substances or controlled substances
11 therein. However, the failure of a law enforcement officer to
12 request the withdrawal of blood does not affect the
13 admissibility of a test of blood withdrawn for medical
14 purposes.
15 b. Notwithstanding any provision of law pertaining to
16 the confidentiality of hospital records or other medical
17 records, if a health care provider, who is providing medical
18 care in a health care facility to a person injured in a motor
19 vehicle crash, becomes aware, as a result of any blood test
20 performed in the course of that medical treatment, that the
21 person's blood-alcohol level meets or exceeds the
22 blood-alcohol level specified in s. 316.193(1)(b), the health
23 care provider may notify any law enforcement officer or law
24 enforcement agency. Any such notice must be given within a
25 reasonable time after the health care provider receives the
26 test result. Any such notice shall be used only for the
27 purpose of providing the law enforcement officer with
28 reasonable cause to request the withdrawal of a blood sample
29 pursuant to this section.
30 c. The notice shall consist only of the name of the
31 person being treated, the name of the person who drew the
12
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 blood, the blood-alcohol level indicated by the test, and the
2 date and time of the administration of the test.
3 d. Nothing contained in s. 395.3025(4), s. 456.057, or
4 any applicable practice act affects the authority to provide
5 notice under this section, and the health care provider is not
6 considered to have breached any duty owed to the person under
7 s. 395.3025(4), s. 456.057, or any applicable practice act by
8 providing notice or failing to provide notice. It shall not be
9 a breach of any ethical, moral, or legal duty for a health
10 care provider to provide notice or fail to provide notice.
11 e. A civil, criminal, or administrative action may not
12 be brought against any person or health care provider
13 participating in good faith in the provision of notice or
14 failure to provide notice as provided in this section. Any
15 person or health care provider participating in the provision
16 of notice or failure to provide notice as provided in this
17 section shall be immune from any civil or criminal liability
18 and from any professional disciplinary action with respect to
19 the provision of notice or failure to provide notice under
20 this section. Any such participant has the same immunity with
21 respect to participating in any judicial proceedings resulting
22 from the notice or failure to provide notice.
23 3. The person tested may, at his or her own expense,
24 have a physician, registered nurse, other personnel authorized
25 by a hospital to draw blood, or duly licensed clinical
26 laboratory director, supervisor, technologist, or technician,
27 or other person of his or her own choosing administer an
28 independent test in addition to the test administered at the
29 direction of the law enforcement officer for the purpose of
30 determining the amount of alcohol in the person's blood or
31 breath or the presence of chemical substances or controlled
13
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 substances at the time alleged, as shown by chemical analysis
2 of his or her blood or urine, or by chemical or physical test
3 of his or her breath. The failure or inability to obtain an
4 independent test by a person does not preclude the
5 admissibility in evidence of the test taken at the direction
6 of the law enforcement officer. The law enforcement officer
7 shall not interfere with the person's opportunity to obtain
8 the independent test and shall provide the person with timely
9 telephone access to secure the test, but the burden is on the
10 person to arrange and secure the test at the person's own
11 expense.
12 4. Upon the request of the person tested, full
13 information concerning the test taken at the direction of the
14 law enforcement officer shall be made available to the person
15 or his or her attorney.
16 5. A hospital, clinical laboratory, medical clinic, or
17 similar medical institution or physician, certified paramedic,
18 registered nurse, licensed practical nurse, other personnel
19 authorized by a hospital to draw blood, or duly licensed
20 clinical laboratory director, supervisor, technologist, or
21 technician, or other person assisting a law enforcement
22 officer does not incur any civil or criminal liability as a
23 result of the withdrawal or analysis of a blood or urine
24 specimen, or the chemical or physical test of a person's
25 breath pursuant to accepted medical standards when requested
26 by a law enforcement officer, regardless of whether or not the
27 subject resisted administration of the test.
28 (2) The results of any test administered pursuant to
29 this section for the purpose of detecting the presence of any
30 controlled substance shall not be admissible as evidence in a
31 criminal prosecution for the possession of a controlled
14
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 substance.
2 (3) Notwithstanding any provision of law pertaining to
3 the confidentiality of hospital records or other medical
4 records, information relating to the alcoholic content of the
5 blood or breath or the presence of chemical substances or
6 controlled substances in the blood obtained pursuant to this
7 section shall be released to a court, prosecuting attorney,
8 defense attorney, or law enforcement officer in connection
9 with an alleged violation of s. 316.193 upon request for such
10 information.
11 Section 3. Subsection (1) of section 316.1933, Florida
12 Statutes, is amended to read:
13 316.1933 Blood test for impairment or intoxication in
14 cases of death or serious bodily injury; right to use
15 reasonable force.--
16 (1)(a) Notwithstanding any recognized ability to
17 refuse to submit to the tests provided in s. 316.1932 or any
18 recognized power to revoke the implied consent to such tests,
19 If a law enforcement officer has probable cause to believe
20 that a motor vehicle driven by or in the actual physical
21 control of a person under the influence of alcoholic
22 beverages, any chemical substances, or any controlled
23 substances has caused the death or serious bodily injury of a
24 human being, such person shall submit, upon the request of a
25 law enforcement officer shall require the person driving or in
26 actual physical control of the motor vehicle to submit, to a
27 test of the person's blood for the purpose of determining the
28 alcoholic content thereof or the presence of chemical
29 substances as set forth in s. 877.111 or any substance
30 controlled under chapter 893. The law enforcement officer may
31 use reasonable force if necessary to require such person to
15
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 submit to the administration of the blood test. The blood
2 test shall be performed in a reasonable manner.
3 Notwithstanding s. 316.1932, the testing required by this
4 paragraph need not be incidental to a lawful arrest of the
5 person.
6 (b) The term "serious bodily injury" means an injury
7 to any person, including the driver, which consists of a
8 physical condition that creates a substantial risk of death,
9 serious personal disfigurement, or protracted loss or
10 impairment of the function of any bodily member or organ.
11 Section 4. Section 316.1937, Florida Statutes, is
12 amended to read:
13 316.1937 Ignition interlock devices, requiring;
14 unlawful acts.--
15 (1) In addition to any other authorized penalties, the
16 court may require that any person who is convicted of driving
17 under the influence in violation of s. 316.193, and who is
18 granted probation, shall not operate a motor vehicle during
19 the period of probation unless that vehicle is equipped with a
20 functioning ignition interlock device certified by the
21 department as provided in s. 316.1938, and installed in such a
22 manner that the vehicle will not start if the operator's blood
23 alcohol level is in excess of 0.05 percent or as otherwise
24 specified by the court. The court may require the use of an
25 approved ignition interlock device for a the period of
26 probation, said period to be for not less than 6 months, if
27 the person is permitted to operate a motor vehicle, whether or
28 not the privilege to operate a motor vehicle is restricted or
29 not, as determined by the court. The court, however, shall
30 order placement of an ignition interlock device in those
31 circumstances required by s. 316.193.
16
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 (2) If the court imposes the use of an ignition
2 interlock device as a condition of probation, the court shall:
3 (a) Stipulate on the record the requirement for, and
4 the period of, the use of a certified ignition interlock
5 device.
6 (b) Order that the records of the department reflect
7 such requirement.
8 (c) Order that an ignition interlock device be
9 installed, as the court may determine necessary, on any
10 vehicle owned or operated by the person probationer.
11 (d) Determine the person's probationer's ability to
12 pay for installation of the device if the person probationer
13 claims inability to pay. If the court determines that the
14 person probationer is unable to pay for installation of the
15 device, the court may order that any portion of a fine paid by
16 the person probationer for a violation of s. 316.193 shall be
17 allocated to defray the costs of installing the device.
18 (e) Require proof of installation of the device and
19 periodic reporting to the department probation officer for
20 verification of the operation of the device in the person's
21 probationer's vehicle.
22 (3) If the court imposes the use of an ignition
23 interlock device as a term of probation on a person whose
24 driving privilege is not suspended or revoked, the court shall
25 require the person to provide proof of compliance to the
26 department probation officer within 30 days. If the person
27 fails to provide proof of installation within that period,
28 absent a finding by the court of good cause for that failure
29 which is entered in the court record, the court shall notify
30 the department revoke or terminate the person's probation.
31 (4) If the court imposes the use of an ignition
17
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 interlock device as a term of probation on a person whose
2 driving privilege is suspended or revoked for a period of less
3 than 3 years, the department shall require proof of compliance
4 before reinstatement of the person's driving privilege.
5 (5)(a) In addition to any other provision of law, upon
6 conviction of a violation of this section the department shall
7 revoke the person's driving privilege for 1 year from the date
8 of conviction. Upon conviction of a separate violation of
9 this section during the same period of required use of an
10 ignition interlock device, the department shall revoke the
11 person's driving privilege for 5 years from the date of
12 conviction.
13 (b) Any person convicted of a violation of subsection
14 (6) who does not have a driver's license shall, in addition to
15 any other penalty provided by law, pay a fine of not less than
16 $250 or more than $500 per each such violation. In the event
17 that the person is unable to pay any such fine, the fine shall
18 become a lien against the motor vehicle used in violation of
19 subsection (6) and payment shall be made pursuant to s.
20 316.3025(4).
21 (6)(a) It is unlawful to tamper with, or to circumvent
22 the operation of, a court-ordered ignition interlock device.
23 (b) It is unlawful for any person whose driving
24 privilege is restricted pursuant to this section to request or
25 solicit any other person to blow into an ignition interlock
26 device or to start a motor vehicle equipped with the device
27 for the purpose of providing the person so restricted with an
28 operable motor vehicle.
29 (c) It is unlawful to blow into an ignition interlock
30 device or to start a motor vehicle equipped with the device
31 for the purpose of providing an operable motor vehicle to a
18
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 person whose driving privilege is restricted pursuant to this
2 section.
3 (d) It is unlawful to knowingly lease or lend a motor
4 vehicle to a person who has had his or her driving privilege
5 restricted under a condition of probation as provided in this
6 section, unless the vehicle is equipped with a functioning,
7 certified ignition interlock device. Any person whose driving
8 privilege is restricted under a condition of probation
9 requiring an ignition interlock device shall notify any other
10 person who leases or loans a motor vehicle to him or her of
11 such driving restriction.
12 (7) Notwithstanding the provisions of this section, if
13 a person is required to operate a motor vehicle in the course
14 and scope of his or her employment and if the vehicle is owned
15 by the employer, the person may operate that vehicle without
16 installation of an approved ignition interlock device if the
17 employer has been notified of such driving privilege
18 restriction and if proof of that notification is with the
19 vehicle. This employment exemption does not apply, however,
20 if the business entity which owns the vehicle is owned or
21 controlled by the person whose driving privilege has been
22 restricted.
23 (8) In addition to the penalties provided in this
24 section, a violation of this section is a noncriminal traffic
25 infraction, punishable as a nonmoving violation as provided in
26 chapter 318.
27 Section 5. Section 316.1939, Florida Statutes, is
28 created to read:
29 316.1939 Refusal to submit to testing; penalties.--
30 (1) Any person who has refused to submit to a chemical
31 or physical test of his or her breath, blood, or urine, as
19
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 described in s. 316.1932, and whose driving privilege is
2 currently suspended for a prior refusal to submit to a lawful
3 test of his or her breath, urine, or blood, and:
4 (a) Who the arresting law enforcement officer had
5 probable cause to believe was driving or in actual physical
6 control of a motor vehicle in this state while under the
7 influence of alcoholic beverages, chemical substances, or
8 controlled substances;
9 (b) Who was placed under lawful arrest for a violation
10 of s. 316.193;
11 (c) Who was informed that, if he or she refused to
12 submit to such test, his or her privilege to operate a motor
13 vehicle would be suspended for a period of 1 year or, in the
14 case of a second or subsequent refusal, for a period of 18
15 months;
16 (d) Who was informed that a refusal to submit to a
17 lawful test of his or her breath, urine, or blood, if his or
18 her driving privilege has been previously suspended for a
19 prior refusal to submit to a lawful test of his or her breath,
20 urine, or blood, is a misdemeanor; and
21 (e) Who, after having been so informed, refused to
22 submit to any such test when requested to do so by a law
23 enforcement officer or correctional officer
24
25 commits a misdemeanor of the first degree and is subject to
26 punishment as provided in s. 775.082 or s. 775.083.
27 (2) The disposition of any administrative proceeding
28 that relates to the suspension of a person's driving privilege
29 does not affect a criminal action under this section.
30 (3) The disposition of a criminal action under this
31 section does not affect any administrative proceeding that
20
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 relates to the suspension of a person's driving privilege. The
2 department's records showing that a person's license has been
3 previously suspended for a prior refusal to submit to a lawful
4 test of his or her breath, urine, or blood shall be admissible
5 and shall create a rebuttable presumption of such suspension.
6 Section 6. Paragraph (a) of subsection (2) of section
7 322.271, Florida Statutes, is amended to read:
8 322.271 Authority to modify revocation, cancellation,
9 or suspension order.--
10 (2)(a) Upon such hearing, the person whose license has
11 been suspended, canceled, or revoked may show that such
12 suspension, cancellation, or revocation of his or her license
13 causes a serious hardship and precludes the person's carrying
14 out his or her normal business occupation, trade, or
15 employment and that the use of the person's license in the
16 normal course of his or her business is necessary to the
17 proper support of the person or his or her family. Except as
18 otherwise provided in this subsection, the department shall
19 require proof of the successful completion of the applicable
20 department-approved driver training course operating pursuant
21 to s. 318.1451 or DUI program substance abuse education course
22 and evaluation as provided in s. 316.193(5). Letters of
23 recommendation from respected business persons in the
24 community, law enforcement officers, or judicial officers may
25 also be required to determine whether such person should be
26 permitted to operate a motor vehicle on a restricted basis for
27 business or employment use only and in determining whether
28 such person can be trusted to so operate a motor vehicle. If a
29 driver's license has been suspended under the point system or
30 pursuant to s. 322.2615, the department shall require proof of
31 enrollment in the applicable department-approved driver
21
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 training course or licensed DUI program substance abuse
2 education course, including evaluation and treatment, if
3 referred, and may require letters of recommendation described
4 in this subsection to determine if the driver should be
5 reinstated on a restricted basis. If such person fails to
6 complete the approved course within 90 days after
7 reinstatement or subsequently fails to complete treatment, if
8 applicable, the department shall cancel his or her driver's
9 license until the course and treatment, if applicable, is
10 successfully completed, notwithstanding the terms of the court
11 order or any suspension or revocation of the driving
12 privilege. The department may temporarily reinstate the
13 driving privilege on a restricted basis upon verification from
14 the DUI program that the offender has reentered and is
15 currently participating in treatment and has completed the DUI
16 education course and evaluation requirement. If the DUI
17 program notifies the department of the second failure to
18 complete treatment, the department shall reinstate the driving
19 privilege only after notice of completion of treatment from
20 the DUI program. The privilege of driving on a limited or
21 restricted basis for business or employment use shall not be
22 granted to a person who has been convicted of a violation of
23 s. 316.193 until completion of the DUI program substance abuse
24 education course and evaluations as provided in s. 316.193(5).
25 Except as provided in paragraph (b), if a person's license has
26 been revoked pursuant to s. 322.28 or suspended pursuant to s.
27 322.2615, or a person has been convicted of a violation of s.
28 316.193 two or more times or has had his or her license
29 suspended two or more times for refusal to submit to a test
30 pursuant to s. 322.2615 or former s. 322.261, the privilege of
31 driving on a limited or restricted basis for business or
22
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 employment use shall be granted in those circumstances where a
2 court has required use of an ignition interlock device
3 pursuant to s. 316.193(2)(a) the privilege of driving on a
4 limited or restricted basis for business or employment use
5 shall not be granted to a person whose license is revoked
6 pursuant to s. 322.28 or suspended pursuant to s. 322.2615 and
7 who has been convicted of a violation of s. 316.193 two or
8 more times or whose license has been suspended two or more
9 times for refusal to submit to a test pursuant to s. 322.2615
10 or former s. 322.261.
11 Section 7. Subsections (2), (3), and (4) of section
12 327.35, Florida Statutes, are amended to read:
13 327.35 Boating under the influence; penalties;
14 "designated drivers".--
15 (2)(a) Except as provided in paragraph (b), subsection
16 (3), or subsection (4), any person who is convicted of a
17 violation of subsection (1) shall be punished:
18 1. By a fine of:
19 a. Not less than $250 or more than $500 for a first
20 conviction.
21 b. Not less than $500 or more than $1,000 for a second
22 conviction.
23 c. Not less than $1,000 or more than $2,500 for a
24 third conviction; and
25 2. By imprisonment for:
26 a. Not more than 6 months for a first conviction.
27 b. Not more than 9 months for a second conviction.
28 c. Not more than 12 months for a third conviction.
29 (b)1. Any person who is convicted of a third fourth or
30 subsequent violation of this section for an offense that
31 occurs within 10 years after a prior conviction for a
23
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 violation of this section commits is guilty of a felony of the
2 third degree, punishable as provided in s. 775.082, s.
3 775.083, or s. 775.084.
4 2. Any person who is convicted of a third violation of
5 this section for an offense that occurs more than 10 years
6 after the date of a prior conviction for a violation of this
7 section shall be punished by a fine of not less than $1,000 or
8 more than $2,500 and by imprisonment for not more than 12
9 months.
10 3. Any person who is convicted of a fourth or
11 subsequent violation of this section, regardless of when any
12 prior conviction for a violation of this section occurred,
13 commits a felony of the third degree, punishable as provided
14 in s. 775.082, s. 775.083, or s. 775.084.;
15
16 However, the fine imposed for such fourth or subsequent
17 violation may not be less than $1,000.
18 (3) Any person:
19 (a) Who is in violation of subsection (1);
20 (b) Who operates a vessel; and
21 (c) Who, by reason of such operation, causes or
22 contributes to causing:
23 1. Damage to the property or person of another commits
24 a misdemeanor of the first degree, punishable as provided in
25 s. 775.082 or s. 775.083.
26 2. Serious bodily injury to another, as defined in s.
27 327.353 316.1933, commits a felony of the third degree,
28 punishable as provided in s. 775.082, s. 775.083, or s.
29 775.084.
30 3. The death of any human being commits BUI
31 manslaughter, and commits:
24
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 a. A felony of the second degree, punishable as
2 provided in s. 775.082, s. 775.083, or s. 775.084.
3 b. A felony of the first degree, punishable as
4 provided in s. 775.082, s. 775.083, or s. 775.084, if:
5 (I) At the time of the accident, the person knew, or
6 should have known, that the accident occurred; and
7 (II) The person failed to give information and render
8 aid as required by s. 327.30 316.062.
9
10 This sub-subparagraph does not require that the person knew
11 that the accident resulted in injury or death.
12 (4) Any person who is convicted of a violation of
13 subsection (1) and who has a blood-alcohol level or
14 breath-alcohol level of 0.20 or higher, or any person who is
15 convicted of a violation of subsection (1) and who at the time
16 of the offense was accompanied in the vessel by a person under
17 the age of 18 years, shall be punished:
18 (a) By a fine of:
19 1. Not less than $500 or more than $1,000 for a first
20 conviction.
21 2. Not less than $1,000 or more than $2,000 for a
22 second conviction.
23 3. Not less than $2,000 or more than $5,000 for a
24 third or subsequent conviction.
25 (b) By imprisonment for:
26 1. Not more than 9 months for a first conviction.
27 2. Not more than 12 months for a second conviction.
28 3. Not more than 12 months for a third conviction.
29
30 For the purposes of this subsection, only the instant offense
31 is required to be a violation of subsection (1) by a person
25
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 who has a blood-alcohol level or breath-alcohol level of 0.20
2 or higher.
3 Section 8. Section 327.352, Florida Statutes, is
4 amended to read:
5 327.352 Breath, blood, and urine tests for alcohol,
6 chemical substances, or controlled substances; implied
7 consent; refusal right to refuse.--
8 (1)(a) The Legislature declares that the operation of
9 a vessel is a privilege that must be exercised in a reasonable
10 manner. In order to protect the public health and safety, it
11 is essential that a lawful and effective means of reducing the
12 incidence of boating while impaired or intoxicated be
13 established. Therefore, any person who accepts the privilege
14 extended by the laws of this state of operating a vessel
15 within this state is, by so operating such vessel, deemed to
16 have given his or her consent to submit to an approved
17 chemical test or physical test including, but not limited to,
18 an infrared light test of his or her breath for the purpose of
19 determining the alcoholic content of his or her blood or
20 breath, and to a urine test for the purpose of detecting the
21 presence of chemical substances as set forth in s. 877.111 or
22 controlled substances, if the person is lawfully arrested for
23 any offense allegedly committed while the person was operating
24 a vessel while under the influence of alcoholic beverages,
25 chemical substances, or controlled substances. The chemical
26 or physical breath test must be incidental to a lawful arrest
27 and administered at the request of a law enforcement officer
28 who has reasonable cause to believe such person was operating
29 the vessel within this state while under the influence of
30 alcoholic beverages. The urine test must be incidental to a
31 lawful arrest and administered at a detention facility or any
26
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 other facility, mobile or otherwise, which is equipped to
2 administer such tests at the request of a law enforcement
3 officer who has reasonable cause to believe such person was
4 operating a vessel within this state while under the influence
5 of controlled substances. The urine test shall be administered
6 at a detention facility or any other facility, mobile or
7 otherwise, which is equipped to administer such tests in a
8 reasonable manner that will ensure the accuracy of the
9 specimen and maintain the privacy of the individual involved.
10 The administration of one type of test does not preclude the
11 administration of another type of test. The person shall be
12 told that his or her failure to submit to any lawful test of
13 his or her breath or urine, or both, will result in a civil
14 penalty of $500, and shall also be told that if he or she
15 refuses to submit to a lawful test of his or her breath or
16 urine, or both, and he or she has been previously fined for
17 refusal to submit to any lawful test of his or her breath,
18 urine, or blood, he or she commits a misdemeanor in addition
19 to any other penalties. The refusal to submit to a chemical or
20 physical breath or urine test upon the request of a law
21 enforcement officer as provided in this section is admissible
22 into evidence in any criminal proceeding.
23 (b)1. The blood-alcohol level must be based upon grams
24 of alcohol per 100 milliliters of blood. The breath-alcohol
25 level must be based upon grams of alcohol per 210 liters of
26 breath.
27 2. An analysis of a person's breath, in order to be
28 considered valid under this section, must have been performed
29 substantially according to methods approved by the Department
30 of Law Enforcement. Any insubstantial differences between
31 approved techniques and actual testing procedures in any
27
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 individual case do not render the test or test results
2 invalid.
3 3. The Alcohol Testing Program within the Department
4 of Law Enforcement is responsible for the regulation of the
5 operation, inspection, and registration of breath test
6 instruments utilized under the driving and boating under the
7 influence provisions and related provisions located in this
8 chapter and chapters 316 and 322. The program is responsible
9 for the regulation of the individuals who operate, inspect,
10 and instruct on the breath test instruments utilized in the
11 driving and boating under the influence provisions and related
12 provisions located in this chapter and chapters 316 and 322.
13 The program is further responsible for the regulation of blood
14 analysts who conduct blood testing to be utilized under the
15 driving and boating under the influence provisions and related
16 provisions located in this chapter and chapters 316 and 322.
17 The program shall:
18 a. Establish uniform criteria for the issuance of
19 permits to breath test operators, agency inspectors,
20 instructors, blood analysts, and instruments.
21 b. Have the authority to permit breath test operators,
22 agency inspectors, instructors, blood analysts, and
23 instruments.
24 c. Have the authority to discipline and suspend,
25 revoke, or renew the permits of breath test operators, agency
26 inspectors, instructors, blood analysts, and instruments.
27 d. Establish uniform requirements for instruction and
28 curricula for the operation and inspection of approved
29 instruments.
30 e. Have the authority to specify one approved
31 curriculum for the operation and inspection of approved
28
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 instruments.
2 f. Establish a procedure for the approval of breath
3 test operator and agency inspector classes.
4 g. Have the authority to approve or disapprove breath
5 test instruments and accompanying paraphernalia for use
6 pursuant to the driving and boating under the influence
7 provisions and related provisions located in this chapter and
8 chapters 316 and 322.
9 h. With the approval of the executive director of the
10 Department of Law Enforcement, make and enter into contracts
11 and agreements with other agencies, organizations,
12 associations, corporations, individuals, or federal agencies
13 as are necessary, expedient, or incidental to the performance
14 of duties.
15 i. Issue final orders which include findings of fact
16 and conclusions of law and which constitute final agency
17 action for the purpose of chapter 120.
18 j. Enforce compliance with the provisions of this
19 section through civil or administrative proceedings.
20 k. Make recommendations concerning any matter within
21 the purview of this section, this chapter, chapter 316, or
22 chapter 322.
23 l. Promulgate rules for the administration and
24 implementation of this section, including definitions of
25 terms.
26 m. Consult and cooperate with other entities for the
27 purpose of implementing the mandates of this section.
28 n. Have the authority to approve the type of blood
29 test utilized under the driving and boating under the
30 influence provisions and related provisions located in this
31 chapter and chapters 316 and 322.
29
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 o. Have the authority to specify techniques and
2 methods for breath alcohol testing and blood testing utilized
3 under the driving and boating under the influence provisions
4 and related provisions located in this chapter and chapters
5 316 and 322.
6 p. Have the authority to approve repair facilities for
7 the approved breath test instruments, including the authority
8 to set criteria for approval.
9
10 Nothing in this section shall be construed to supersede
11 provisions in this chapter and chapters 316 and 322. The
12 specifications in this section are derived from the power and
13 authority previously and currently possessed by the Department
14 of Law Enforcement and are enumerated to conform with the
15 mandates of chapter 99-379, Laws of Florida.
16 (c) Any person who accepts the privilege extended by
17 the laws of this state of operating a vessel within this state
18 is, by operating such vessel, deemed to have given his or her
19 consent to submit to an approved blood test for the purpose of
20 determining the alcoholic content of the blood or a blood test
21 for the purpose of determining the presence of chemical
22 substances or controlled substances as provided in this
23 section if there is reasonable cause to believe the person was
24 operating a vessel while under the influence of alcoholic
25 beverages or chemical or controlled substances and the person
26 appears for treatment at a hospital, clinic, or other medical
27 facility and the administration of a breath or urine test is
28 impractical or impossible. As used in this paragraph, the term
29 "other medical facility" includes an ambulance or other
30 medical emergency vehicle. The blood test shall be performed
31 in a reasonable manner. Any person who is incapable of
30
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 refusal by reason of unconsciousness or other mental or
2 physical condition is deemed not to have withdrawn his or her
3 consent to such test. Any person who is capable of refusal
4 shall be told that his or her failure to submit to such a
5 blood test will result in a civil penalty of $500 and that a
6 refusal to submit to a lawful test of his or her blood, if he
7 or she has previously been fined for refusal to submit to any
8 lawful test of his or her breath, urine, or blood, is a
9 misdemeanor. The refusal to submit to a blood test upon the
10 request of a law enforcement officer shall be admissible in
11 evidence in any criminal proceeding.
12 (d) If the arresting officer does not request a
13 chemical or physical breath test of the person arrested for
14 any offense allegedly committed while the person was operating
15 a vessel while under the influence of alcoholic beverages or
16 controlled substances, the person may request the arresting
17 officer to have a chemical or physical test made of the
18 arrested person's breath or a test of the urine or blood for
19 the purpose of determining the alcoholic content of the
20 person's blood or breath or the presence of chemical
21 substances or controlled substances; and, if so requested, the
22 arresting officer shall have the test performed.
23 (e)1. The tests determining the weight of alcohol in
24 the defendant's blood or breath shall be administered at the
25 request of a law enforcement officer substantially in
26 accordance with rules of the Department of Law Enforcement.
27 However, the failure of a law enforcement officer to request
28 the withdrawal of blood does not affect the admissibility of a
29 test of blood withdrawn for medical purposes.
30 2. Only a physician, certified paramedic, registered
31 nurse, licensed practical nurse, other personnel authorized by
31
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 a hospital to draw blood, or duly licensed clinical laboratory
2 director, supervisor, technologist, or technician, acting at
3 the request of a law enforcement officer, may withdraw blood
4 for the purpose of determining its alcoholic content or the
5 presence of chemical substances or controlled substances
6 therein. However, the failure of a law enforcement officer to
7 request the withdrawal of blood does not affect the
8 admissibility of a test of blood withdrawn for medical
9 purposes.
10 3. The person tested may, at his or her own expense,
11 have a physician, registered nurse, other personnel authorized
12 by a hospital to draw blood, or duly licensed clinical
13 laboratory director, supervisor, technologist, or technician,
14 or other person of his or her own choosing administer an
15 independent test in addition to the test administered at the
16 direction of the law enforcement officer for the purpose of
17 determining the amount of alcohol in the person's blood or
18 breath or the presence of chemical substances or controlled
19 substances at the time alleged, as shown by chemical analysis
20 of his or her blood or urine, or by chemical or physical test
21 of his or her breath. The failure or inability to obtain an
22 independent test by a person does not preclude the
23 admissibility in evidence of the test taken at the direction
24 of the law enforcement officer. The law enforcement officer
25 shall not interfere with the person's opportunity to obtain
26 the independent test and shall provide the person with timely
27 telephone access to secure the test, but the burden is on the
28 person to arrange and secure the test at the person's own
29 expense.
30 4. Upon the request of the person tested, full
31 information concerning the test taken at the direction of the
32
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 law enforcement officer shall be made available to the person
2 or his or her attorney.
3 5. A hospital, clinical laboratory, medical clinic, or
4 similar medical institution or physician, certified paramedic,
5 registered nurse, licensed practical nurse, other personnel
6 authorized by a hospital to draw blood, or duly licensed
7 clinical laboratory director, supervisor, technologist, or
8 technician, or other person assisting a law enforcement
9 officer does not incur any civil or criminal liability as a
10 result of the withdrawal or analysis of a blood or urine
11 specimen, or the chemical or physical test of a person's
12 breath pursuant to accepted medical standards when requested
13 by a law enforcement officer, regardless of whether or not the
14 subject resisted administration of the test.
15 (2) The results of any test administered pursuant to
16 this section for the purpose of detecting the presence of any
17 controlled substance shall not be admissible as evidence in a
18 criminal prosecution for the possession of a controlled
19 substance.
20 (3) Notwithstanding any provision of law pertaining to
21 the confidentiality of hospital records or other medical
22 records, information relating to the alcoholic content of the
23 blood or breath or the presence of chemical substances or
24 controlled substances in the blood obtained pursuant to this
25 section shall be released to a court, prosecuting attorney,
26 defense attorney, or law enforcement officer in connection
27 with an alleged violation of s. 327.35 upon request for such
28 information.
29 Section 9. Subsection (1) of section 327.353, Florida
30 Statutes, is amended to read:
31 327.353 Blood test for impairment or intoxication in
33
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 cases of death or serious bodily injury; right to use
2 reasonable force.--
3 (1)(a) Notwithstanding any recognized ability to
4 refuse to submit to the tests provided in s. 327.352 or any
5 recognized power to revoke the implied consent to such tests,
6 If a law enforcement officer has probable cause to believe
7 that a vessel operated by a person under the influence of
8 alcoholic beverages, any chemical substances, or any
9 controlled substances has caused the death or serious bodily
10 injury of a human being, the person shall submit, upon the
11 request of a law enforcement officer shall require the person
12 operating or in actual physical control of the vessel to
13 submit, to a test of the person's blood for the purpose of
14 determining the alcoholic content thereof or the presence of
15 chemical substances as set forth in s. 877.111 or any
16 substance controlled under chapter 893. The law enforcement
17 officer may use reasonable force if necessary to require the
18 person to submit to the administration of the blood test. The
19 blood test shall be performed in a reasonable manner.
20 Notwithstanding s. 327.352, the testing required by this
21 paragraph need not be incidental to a lawful arrest of the
22 person.
23 (b) The term "serious bodily injury" means an injury
24 to any person, including the operator, which consists of a
25 physical condition that creates a substantial risk of death,
26 serious personal disfigurement, or protracted loss or
27 impairment of the function of any bodily member or organ.
28 Section 10. Section 327.359, Florida Statutes, is
29 created to read:
30 327.359 Refusal to submit to testing; penalties.--Any
31 person who has refused to submit to a chemical or physical
34
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 test of his or her breath, blood, or urine, as described in s.
2 327.352, and who has been previously fined for refusal to
3 submit to a lawful test of his or her breath, urine, or blood,
4 and:
5 (1) Who the arresting law enforcement officer had
6 probable cause to believe was operating or in actual physical
7 control of a vessel in this state while under the influence of
8 alcoholic beverages, chemical substances, or controlled
9 substances;
10 (2) Who was placed under lawful arrest for a violation
11 of s. 327.35;
12 (3) Who was informed that if he or she refused to
13 submit to such test he or she is subject to a fine of $500;
14 (4) Who was informed that a refusal to submit to a
15 lawful test of his or her breath, urine, or blood, if he or
16 she has been previously fined for refusal to submit to a
17 lawful test of his or her breath, urine, or blood, is a
18 misdemeanor; and
19 (5) Who, after having been so informed, refused to
20 submit to any such test when requested to do so by a law
21 enforcement officer or correctional officer
22
23 commits a misdemeanor of the first degree and is subject to
24 punishment as provided in s. 775.082 or s. 775.083.
25 Section 11. Section 397.6755, Florida Statutes, is
26 created to read:
27 397.6755 Evidence and criteria for involuntary
28 admissions and involuntary treatment; funding.--
29 (1) If a court finds that a person arrested for
30 violation of either s. 316.193 or s. 327.35 has lost the power
31 of self-control with respect to substance use and is likely to
35
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 inflict physical harm upon himself or herself or another
2 pursuant to the standards set forth in s. 397.675, a court may
3 require involuntary admission and treatment of such person. In
4 making such determination, a court shall, along with all
5 relevant evidence, consider the following factors:
6 (a) Whether the person has, previous to the arrest,
7 been convicted of a violation of s. 316.193 or s. 327.35;
8 (b) Whether the person's blood-alcohol level or
9 breath-alcohol level, as determined by a test conducted
10 incident to the person's arrest, was 0.20 or greater;
11 (c) Whether the person, by reason of operation of a
12 motor vehicle or a vessel, has caused or contributed to the
13 death or serious bodily injury of another as defined in s.
14 316.1933 or s. 327.353; or
15 (d) Whether the person is on pretrial release for a
16 previous offense under s. 316.193 or s. 327.35.
17 (2) Any person who meets the criteria for involuntary
18 admission pursuant to s. 397.675, who was placed in protective
19 custody pursuant to s. 316.193(9)(b) or s. 327.35(8)(b), and
20 who is a qualified resident as defined in s. 212.055(4)(d)
21 shall have the costs of evaluation and treatment paid from the
22 fund established pursuant to s. 212.055(4)(e). A court shall
23 order any person whose care is paid for under this subsection,
24 who is subsequently convicted of a violation of s. 316.193 or
25 s. 327.35, to reimburse the provider of the services for the
26 reasonable cost of the services provided and, if the person is
27 unable to reimburse the provider, a civil judgment in favor of
28 such fund shall be entered.
29 Section 12. Paragraphs (c) and (i) of subsection (3)
30 of section 921.0022, Florida Statutes, as amended by chapter
31 2001-358, Laws of Florida, are amended to read:
36
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 921.0022 Criminal Punishment Code; offense severity
2 ranking chart.--
3 (3) OFFENSE SEVERITY RANKING CHART
4
5 Florida Felony
6 Statute Degree Description
7
8 (c) LEVEL 3
9 316.193(2)(b) 3rd Felony DUI, 3rd conviction.
10 316.1935(2) 3rd Fleeing or attempting to elude
11 law enforcement officer in marked
12 patrol vehicle with siren and
13 lights activated.
14 319.30(4) 3rd Possession by junkyard of motor
15 vehicle with identification
16 number plate removed.
17 319.33(1)(a) 3rd Alter or forge any certificate of
18 title to a motor vehicle or
19 mobile home.
20 319.33(1)(c) 3rd Procure or pass title on stolen
21 vehicle.
22 319.33(4) 3rd With intent to defraud, possess,
23 sell, etc., a blank, forged, or
24 unlawfully obtained title or
25 registration.
26 327.35(2)(b) 3rd Felony BUI, 3rd conviction.
27 328.05(2) 3rd Possess, sell, or counterfeit
28 fictitious, stolen, or fraudulent
29 titles or bills of sale of
30 vessels.
31
37
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 328.07(4) 3rd Manufacture, exchange, or possess
2 vessel with counterfeit or wrong
3 ID number.
4 376.302(5) 3rd Fraud related to reimbursement
5 for cleanup expenses under the
6 Inland Protection Trust Fund.
7 501.001(2)(b) 2nd Tampers with a consumer product
8 or the container using materially
9 false/misleading information.
10 697.08 3rd Equity skimming.
11 790.15(3) 3rd Person directs another to
12 discharge firearm from a vehicle.
13 796.05(1) 3rd Live on earnings of a prostitute.
14 806.10(1) 3rd Maliciously injure, destroy, or
15 interfere with vehicles or
16 equipment used in firefighting.
17 806.10(2) 3rd Interferes with or assaults
18 firefighter in performance of
19 duty.
20 810.09(2)(c) 3rd Trespass on property other than
21 structure or conveyance armed
22 with firearm or dangerous weapon.
23 812.014(2)(c)2. 3rd Grand theft; $5,000 or more but
24 less than $10,000.
25 815.04(4)(b) 2nd Computer offense devised to
26 defraud or obtain property.
27 817.034(4)(a)3. 3rd Engages in scheme to defraud
28 (Florida Communications Fraud
29 Act), property valued at less
30 than $20,000.
31 817.233 3rd Burning to defraud insurer.
38
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 817.234(8)&(9) 3rd Unlawful solicitation of persons
2 involved in motor vehicle
3 accidents.
4 817.234(11)(a) 3rd Insurance fraud; property value
5 less than $20,000.
6 817.505(4) 3rd Patient brokering.
7 828.12(2) 3rd Tortures any animal with intent
8 to inflict intense pain, serious
9 physical injury, or death.
10 831.28(2)(a) 3rd Counterfeiting a payment
11 instrument with intent to defraud
12 or possessing a counterfeit
13 payment instrument.
14 831.29 2nd Possession of instruments for
15 counterfeiting drivers' licenses
16 or identification cards.
17 838.021(3)(b) 3rd Threatens unlawful harm to public
18 servant.
19 843.19 3rd Injure, disable, or kill police
20 dog or horse.
21 870.01(2) 3rd Riot; inciting or encouraging.
22 893.13(1)(a)2. 3rd Sell, manufacture, or deliver
23 cannabis (or other s.
24 893.03(1)(c), (2)(c)1., (2)(c)2.,
25 (2)(c)3., (2)(c)5., (2)(c)6.,
26 (2)(c)7., (2)(c)8., (2)(c)9.,
27 (3), or (4) drugs).
28 893.13(1)(d)2. 2nd Sell, manufacture, or deliver s.
29 893.03(1)(c), (2)(c)1., (2)(c)2.,
30 (2)(c)3., (2)(c)5., (2)(c)6.,
31 (2)(c)7., (2)(c)8., (2)(c)9.,
39
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 (3), or (4) drugs within 200 feet
2 of university or public park.
3 893.13(1)(f)2. 2nd Sell, manufacture, or deliver s.
4 893.03(1)(c), (2)(c)1., (2)(c)2.,
5 (2)(c)3., (2)(c)5., (2)(c)6.,
6 (2)(c)7., (2)(c)8., (2)(c)9.,
7 (3), or (4) drugs within 200 feet
8 of public housing facility.
9 893.13(6)(a) 3rd Possession of any controlled
10 substance other than felony
11 possession of cannabis.
12 893.13(7)(a)9. 3rd Obtain or attempt to obtain
13 controlled substance by fraud,
14 forgery, misrepresentation, etc.
15 893.13(7)(a)11. 3rd Furnish false or fraudulent
16 material information on any
17 document or record required by
18 chapter 893.
19 918.13(1)(a) 3rd Alter, destroy, or conceal
20 investigation evidence.
21 944.47
22 (1)(a)1.-2. 3rd Introduce contraband to
23 correctional facility.
24 944.47(1)(c) 2nd Possess contraband while upon the
25 grounds of a correctional
26 institution.
27 985.3141 3rd Escapes from a juvenile facility
28 (secure detention or residential
29 commitment facility).
30 (i) LEVEL 9
31
40
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 316.193
2 (3)(c)3.b. 1st DUI manslaughter; failing to
3 render aid or give information.
4 327.35(3)(c)3.b. 1st BUI manslaughter; failing to
5 render aid or give information.
6 560.123(8)(b)3. 1st Failure to report currency or
7 payment instruments totaling or
8 exceeding $100,000 by money
9 transmitter.
10 560.125(5)(c) 1st Money transmitter business by
11 unauthorized person, currency, or
12 payment instruments totaling or
13 exceeding $100,000.
14 655.50(10)(b)3. 1st Failure to report financial
15 transactions totaling or
16 exceeding $100,000 by financial
17 institution.
18 755.0844 1st Aggravated white collar crime.
19 782.04(1) 1st Attempt, conspire, or solicit to
20 commit premeditated murder.
21 782.04(3) 1st,PBL Accomplice to murder in
22 connection with arson, sexual
23 battery, robbery, burglary, and
24 other specified felonies.
25 782.051(1) 1st Attempted felony murder while
26 perpetrating or attempting to
27 perpetrate a felony enumerated in
28 s. 782.04(3).
29 782.07(2) 1st Aggravated manslaughter of an
30 elderly person or disabled adult.
31
41
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 787.01(1)(a)1. 1st,PBL Kidnapping; hold for ransom or
2 reward or as a shield or hostage.
3 787.01(1)(a)2. 1st,PBL Kidnapping with intent to commit
4 or facilitate commission of any
5 felony.
6 787.01(1)(a)4. 1st,PBL Kidnapping with intent to
7 interfere with performance of any
8 governmental or political
9 function.
10 787.02(3)(a) 1st False imprisonment; child under
11 age 13; perpetrator also commits
12 aggravated child abuse, sexual
13 battery, or lewd or lascivious
14 battery, molestation, conduct, or
15 exhibition.
16 790.161 1st Attempted capital destructive
17 device offense.
18 790.166(2) 1st,PBL Possessing, selling, using, or
19 attempting to use a weapon of
20 mass destruction.
21 794.011(2) 1st Attempted sexual battery; victim
22 less than 12 years of age.
23 794.011(2) Life Sexual battery; offender younger
24 than 18 years and commits sexual
25 battery on a person less than 12
26 years.
27 794.011(4) 1st Sexual battery; victim 12 years
28 or older, certain circumstances.
29 794.011(8)(b) 1st Sexual battery; engage in sexual
30 conduct with minor 12 to 18 years
31 by person in familial or
42
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 custodial authority.
2 800.04(5)(b) 1st Lewd or lascivious molestation;
3 victim less than 12 years;
4 offender 18 years or older.
5 812.13(2)(a) 1st,PBL Robbery with firearm or other
6 deadly weapon.
7 812.133(2)(a) 1st,PBL Carjacking; firearm or other
8 deadly weapon.
9 827.03(2) 1st Aggravated child abuse.
10 847.0145(1) 1st Selling, or otherwise
11 transferring custody or control,
12 of a minor.
13 847.0145(2) 1st Purchasing, or otherwise
14 obtaining custody or control, of
15 a minor.
16 859.01 1st Poisoning or introducing
17 bacteria, radioactive materials,
18 viruses, or chemical compounds
19 into food, drink, medicine, or
20 water with intent to kill or
21 injure another person.
22 893.135 1st Attempted capital trafficking
23 offense.
24 893.135(1)(a)3. 1st Trafficking in cannabis, more
25 than 10,000 lbs.
26 893.135
27 (1)(b)1.c. 1st Trafficking in cocaine, more than
28 400 grams, less than 150
29 kilograms.
30 893.135
31 (1)(c)1.c. 1st Trafficking in illegal drugs,
43
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 more than 28 grams, less than 30
2 kilograms.
3 893.135
4 (1)(d)1.c. 1st Trafficking in phencyclidine,
5 more than 400 grams.
6 893.135
7 (1)(e)1.c. 1st Trafficking in methaqualone, more
8 than 25 kilograms.
9 893.135
10 (1)(f)1.c. 1st Trafficking in amphetamine, more
11 than 200 grams.
12 893.135
13 (1)(h)1.c. 1st Trafficking in
14 gamma-hydroxybutyric acid (GHB),
15 10 kilograms or more.
16 893.135
17 (1)(i)1.c. 1st Trafficking in 1,4-Butanediol, 10
18 kilograms or more.
19 893.135
20 (1)(j)2.c. 1st Trafficking in Phenethylamines,
21 400 grams or more.
22 896.101(5)(c) 1st Money laundering, financial
23 instruments totaling or exceeding
24 $100,000.
25 896.104(4)(a)3. 1st Structuring transactions to evade
26 reporting or registration
27 requirements, financial
28 transactions totaling or
29 exceeding $100,000.
30 Section 13. Section 938.07, Florida Statutes, is
31 amended to read:
44
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 938.07 Driving or boating under the
2 influence.--Notwithstanding any other provision of s. 316.193
3 or s. 327.35, a court cost of $135 shall be added to any fine
4 imposed pursuant to s. 316.193 or s. 327.35. The clerks shall
5 remit the funds to the Department of Revenue, $25 of which
6 shall be deposited in the Emergency Medical Services Trust
7 Fund, $50 shall be deposited in the Criminal Justice Standards
8 and Training Trust Fund of the Department of Law Enforcement
9 to be used for operational expenses in conducting the
10 statewide criminal analysis laboratory system established in
11 s. 943.32, and $60 shall be deposited in the Brain and Spinal
12 Cord Injury Rehabilitation Trust Fund created in s. 381.79.
13 Section 14. Paragraph (d) of subsection (2) of section
14 943.05, Florida Statutes, is amended to read:
15 943.05 Criminal Justice Information Program; duties;
16 crime reports.--
17 (2) The program shall:
18 (d) Adopt rules to effectively and efficiently
19 implement, administer, manage, maintain, and use the automated
20 fingerprint identification system and uniform offense reports
21 and arrest reports. The rules shall be considered minimum
22 requirements and shall not preclude a criminal justice agency
23 from implementing its own enhancements. However, rules and
24 forms prescribing uniform arrest or probable cause affidavits
25 and alcohol influence reports to be used by all law
26 enforcement agencies in making DUI arrests under s. 316.193
27 shall be adopted, and shall be used by all law enforcement
28 agencies in this state. The rules and forms prescribing such
29 uniform affidavits and reports shall be adopted and
30 implemented by July 1, 2004. Failure to use these uniform
31 affidavits and reports, however, shall not prohibit
45
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 prosecution under s. 316.193.
2 Section 15. The sum of $216,062 is appropriated for
3 fiscal year 2002-2003 from recurring general revenue to the
4 Department of Corrections to be used for the purpose of
5 implementing this act.
6 Section 16. This act shall take effect July 1, 2002.
7
8
9 ================ T I T L E A M E N D M E N T ===============
10 And the title is amended as follows:
11 remove: the entire title
12
13 and insert:
14 A bill to be entitled
15 An act relating to driving or boating under the
16 influence of alcohol or controlled substances;
17 amending s. 316.193, F.S.; reducing the number
18 of convictions required for a felony DUI;
19 requiring mandatory placement of an ignition
20 interlock device under certain circumstances;
21 revising conditions for conviction in cases of
22 accident, serious bodily injury, or death;
23 removing a cross reference; amending s.
24 316.1932, F.S.; requiring a law enforcement
25 officer to inform a person that refusal to
26 submit to certain tests is a misdemeanor;
27 amending s. 316.1933, F.S.; requiring a person
28 to submit to a blood test under certain
29 circumstances; amending s. 316.1937, F.S.;
30 requiring placement of an ignition interlock
31 device under certain circumstances; directing
46
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 the court regarding requirements for ignition
2 interlock devices; creating s. 316.1939, F.S.;
3 providing a penalty for refusing to submit to a
4 chemical or physical test of breath, urine, or
5 blood; providing application; amending s.
6 322.271, F.S.; providing for the privilege of
7 driving with an ignition interlock device while
8 a license is revoked or suspended, under
9 certain circumstances; amending s. 327.35,
10 F.S.; reducing the number of convictions
11 required for a felony BUI; revising conditions
12 for conviction in cases of accident, serious
13 bodily injury, or death; conforming cross
14 references; amending s. 327.352, F.S.;
15 providing for notification that refusal to
16 submit to a test of breath, blood, or urine
17 under certain circumstances is a misdemeanor;
18 amending s. 327.353, F.S.; requiring a person
19 to submit to a blood test under certain
20 circumstances; providing that the test need not
21 be incidental to a lawful arrest; creating s.
22 327.359, F.S.; providing a penalty for refusing
23 to submit to a chemical or physical test of
24 breath, urine, or blood; providing application;
25 creating s. 397.6755, F.S.; providing for
26 evidence and criteria for involuntary admission
27 and treatment; providing funding; amending s.
28 921.0022, F.S.; revising provisions relating to
29 certain DUI offenses; including certain BUI
30 offenses within the offense severity ranking
31 chart; amending s. 938.07, F.S.; providing for
47
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HOUSE AMENDMENT
795-117AXF-06 Bill No. CS/CS/HB 1057, 1st Eng.
Amendment No. ___ (for drafter's use only)
1 application of a fee to persons found guilty of
2 boating under the influence; conforming a cross
3 reference; amending s. 943.05, F.S.; providing
4 for adoption of rules and forms for making DUI
5 arrests; providing an appropriation; providing
6 an effective date.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
48
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