House Bill hb1057c2

CODING: Words stricken are deletions; words underlined are additions.




    Florida House of Representatives - 2002          CS/CS/HB 1057

        By the Council for Healthy Communities and Committee on
    Crime Prevention, Corrections & Safety and Representatives
    Simmons, Slosberg, Heyman, Lynn, Waters, Gannon, Hogan,
    Bilirakis and Flanagan



  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         requiring mandatory placement of an ignition

  7         interlock device under certain circumstances;

  8         providing for the forfeiture of vehicles under

  9         certain circumstances; amending conditions for

10         conviction in cases of accident, serious bodily

11         injury, or death; removing a cross reference;

12         allowing a law enforcement officer to place a

13         person in protective custody under certain

14         circumstances; requiring a person placed in

15         protective custody to pay reasonable costs of

16         evaluation and treatment under certain

17         circumstances; amending s. 316.1932, F.S.;

18         requiring a law enforcement officer to inform a

19         person that refusal to submit to certain tests

20         is a misdemeanor; amending s. 316.1933, F.S.;

21         requiring a person to submit to a blood test

22         under certain circumstances; providing that the

23         test need not be incidental to a lawful arrest;

24         amending s. 316.1937, F.S.; requiring the

25         installation of ignition interlock devices in

26         conformance to the act; creating s. 316.1939,

27         F.S.; providing a penalty for refusing to

28         submit to a chemical or physical test of

29         breath, urine, or blood; providing application;

30         amending s. 322.271, F.S.; providing an

31         exception to the prohibition on a limited right

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         to drive for business or employment for certain

  2         persons for whom the court has required the use

  3         of an ignition interlock device; amending s.

  4         327.35, F.S.; reducing the number of

  5         convictions required for a felony BUI;

  6         providing for the forfeiture of vessels under

  7         certain circumstances; amending conditions for

  8         conviction in cases of accident, serious bodily

  9         injury, or death; correcting cross references;

10         allowing a law enforcement officer to place a

11         person in protective custody under certain

12         circumstances; requiring a person placed in

13         protective custody to pay reasonable costs of

14         evaluation and treatment under certain

15         circumstances; amending s. 327.352, F.S.;

16         requiring a law enforcement officer to inform a

17         person that refusal to submit to certain tests

18         is a misdemeanor; amending s. 327.353, F.S.;

19         requiring a person to submit to a blood test

20         under certain circumstances; providing that the

21         test need not be incidental to a lawful arrest;

22         creating s. 327.359, F.S.; providing a penalty

23         for refusing to submit to a chemical or

24         physical test of breath, urine, or blood;

25         providing application; creating s. 397.6755,

26         F.S.; specifying grounds for which a court may

27         determine that criteria exist for involuntary

28         admission and treatment of certain persons;

29         requiring payment for such evaluation and

30         treatment from a certain fund; requiring

31         persons placed in such involuntary custody to

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         reimburse the provider of services under

  2         certain circumstances; amending s. 921.0022,

  3         F.S.; revising language relating to certain DUI

  4         offenses; including certain BUI offenses within

  5         the offense severity ranking chart; amending s.

  6         932.701, F.S.; redefining "contraband article";

  7         amending s. 938.07, F.S.; providing for

  8         application of a fee to persons found guilty of

  9         boating under the influence; correcting a cross

10         reference; providing an effective date.

11

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

13

14         Section 1.  Subsections (2), (3), (4), and (9) of

15  section 316.193, Florida Statutes, are amended to read:

16         316.193  Driving under the influence; penalties.--

17         (2)(a)  Except as provided in paragraph (b), subsection

18  (3), or subsection (4), any person who is convicted of a

19  violation of subsection (1) shall be punished:

20         1.  By a fine of:

21         a.  Not less than $250 or more than $500 for a first

22  conviction.

23         b.  Not less than $500 or more than $1,000 for a second

24  conviction and, if the convicted person qualifies for a

25  restricted license pursuant to s. 322.271(2)(a), mandatory

26  placement of an ignition interlock device approved by the

27  Department of Highway Safety and Motor Vehicles in accordance

28  with s. 316.1937 upon all vehicles owned individually or

29  jointly and routinely operated by the convicted person, for a

30  period of not less than 2 years and at the sole expense of the

31  convicted person.

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  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 be not less than

12  $1,000. Further, any vehicle owned by the convicted person and

13  used in the commission of the offense shall be forfeited in

14  accordance with the provisions of the Florida Contraband

15  Forfeiture Act, ss. 932.701-932.707.

16         (3)  Any person:

17         (a)  Who is in violation of subsection (1);

18         (b)  Who operates a vehicle; and

19         (c)  Who, by reason of such operation, causes or

20  contributes to the cause of:

21         1.  Damage to the property or person of another commits

22  a misdemeanor of the first degree, punishable as provided in

23  s. 775.082 or s. 775.083.

24         2.  Serious bodily injury to another, as defined in s.

25  316.1933, commits a felony of the third degree, punishable as

26  provided in s. 775.082, s. 775.083, or s. 775.084.

27         3.  The death of any human being commits DUI

28  manslaughter, and commits:

29         a.  A felony of the second degree, punishable as

30  provided in s. 775.082, s. 775.083, or s. 775.084.

31

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         b.  A felony of the first degree, punishable as

  2  provided in s. 775.082, s. 775.083, or s. 775.084, if:

  3         (I)  At the time of the crash, the person knew, or

  4  should have known, that the crash occurred; and

  5         (II)  The person failed to give information and render

  6  aid as required by s. 316.062.

  7         (4)  Any person who is convicted of a violation of

  8  subsection (1) and who has a blood-alcohol level or

  9  breath-alcohol level of 0.20 or higher, or any person who is

10  convicted of a violation of subsection (1) and who at the time

11  of the offense was accompanied in the vehicle by a person

12  under the age of 18 years, shall be punished:

13         (a)  By a fine of:

14         1.  Not less than $500 or more than $1,000 for a first

15  conviction.

16         2.  Not less than $1,000 or more than $2,000 for a

17  second conviction.

18         3.  Not less than $2,000 or more than $5,000 for a

19  third or subsequent conviction.

20         (b)  By imprisonment for:

21         1.  Not more than 9 months for a first conviction.

22         2.  Not more than 12 months for a second conviction.

23         3.  Not more than 12 months for a third conviction.

24

25  For the purposes of this subsection, any conviction for a

26  violation of s. 327.35, only the instant offense is required

27  to be a violation of subsection (1) by a person who has a

28  blood-alcohol level or breath-alcohol level of 0.20 or higher.

29         (9)(a)  A person who is arrested for a violation of

30  this section may not be released from custody:

31

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  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. 327.35;

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 motor

18  vehicle, has caused death or serious bodily injury as defined

19  in s. 316.1933; or

20         4.  The person is on pretrial release for a previous

21  offense under this section or s. 327.35.

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) or the time that the person

27  is released on bail, whichever is later.  The provisions of

28  this paragraph are in addition to, not in lieu of, the

29  provisions of subsection (5).  A court shall order any person

30  placed in protective custody pursuant to this paragraph who is

31

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  subsequently convicted of a violation of this section to pay

  2  the reasonable costs of evaluation and treatment.

  3         Section 2.  Section 316.1932, Florida Statutes, is

  4  amended to read:

  5         316.1932  Breath, blood, and urine tests for alcohol,

  6  chemical substances, or controlled substances; implied

  7  consent; refusal right to refuse.--

  8         (1)(a)1.  Any person who accepts the privilege extended

  9  by the laws of this state of operating a motor vehicle within

10  this state is, by so operating such vehicle, deemed to have

11  given his or her consent to submit to an approved chemical

12  test or physical test including, but not limited to, an

13  infrared light test of his or her breath for the purpose of

14  determining the alcoholic content of his or her blood or

15  breath, and to a urine test for the purpose of detecting the

16  presence of chemical substances as set forth in s. 877.111 or

17  controlled substances, if the person is lawfully arrested for

18  any offense allegedly committed while the person was driving

19  or was in actual physical control of a motor vehicle while

20  under the influence of alcoholic beverages, chemical

21  substances, or controlled substances.  The chemical or

22  physical breath test must be incidental to a lawful arrest and

23  administered at the request of a law enforcement officer who

24  has reasonable cause to believe such person was driving or was

25  in actual physical control of the motor vehicle within this

26  state while under the influence of alcoholic beverages. The

27  urine test must be incidental to a lawful arrest and

28  administered at a detention facility or any other facility,

29  mobile or otherwise, which is equipped to administer such

30  tests at the request of a law enforcement officer who has

31  reasonable cause to believe such person was driving or was in

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  actual physical control of a motor vehicle within this state

  2  while under the influence of controlled substances. The urine

  3  test shall be administered at a detention facility or any

  4  other facility, mobile or otherwise, which is equipped to

  5  administer such tests in a reasonable manner that will ensure

  6  the accuracy of the specimen and maintain the privacy of the

  7  individual involved. The administration of one type of test

  8  does not preclude the administration of another type of test.

  9  The person shall be told that his or her failure to submit to

10  any lawful test of his or her breath or urine, or both, is a

11  misdemeanor and, in addition, will result in the suspension of

12  the person's privilege to operate a motor vehicle for a period

13  of 1 year for a first refusal, or for a period of 18 months if

14  the driving privilege of such person has been previously

15  suspended as a result of a refusal to submit to such a test or

16  tests.  The refusal to submit to a chemical or physical breath

17  test or to a urine test upon the request of a law enforcement

18  officer as provided in this section is admissible into

19  evidence in any criminal proceeding.

20         2.  The Alcohol Testing Program within the Department

21  of Law Enforcement is responsible for the regulation of the

22  operation, inspection, and registration of breath test

23  instruments utilized under the driving and boating under the

24  influence provisions and related provisions located in this

25  chapter and chapters 322 and 327. The program is responsible

26  for the regulation of the individuals who operate, inspect,

27  and instruct on the breath test instruments utilized in the

28  driving and boating under the influence provisions and related

29  provisions located in this chapter and chapters 322 and 327.

30  The program is further responsible for the regulation of blood

31  analysts who conduct blood testing to be utilized under the

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  driving and boating under the influence provisions and related

  2  provisions located in this chapter and chapters 322 and 327.

  3  The program shall:

  4         a.  Establish uniform criteria for the issuance of

  5  permits to breath test operators, agency inspectors,

  6  instructors, blood analysts, and instruments.

  7         b.  Have the authority to permit breath test operators,

  8  agency inspectors, instructors, blood analysts, and

  9  instruments.

10         c.  Have the authority to discipline and suspend,

11  revoke, or renew the permits of breath test operators, agency

12  inspectors, instructors, blood analysts, and instruments.

13         d.  Establish uniform requirements for instruction and

14  curricula for the operation and inspection of approved

15  instruments.

16         e.  Have the authority to specify one approved

17  curriculum for the operation and inspection of approved

18  instruments.

19         f.  Establish a procedure for the approval of breath

20  test operator and agency inspector classes.

21         g.  Have the authority to approve or disapprove breath

22  test instruments and accompanying paraphernalia for use

23  pursuant to the driving and boating under the influence

24  provisions and related provisions located in this chapter and

25  chapters 322 and 327.

26         h.  With the approval of the executive director of the

27  Department of Law Enforcement, make and enter into contracts

28  and agreements with other agencies, organizations,

29  associations, corporations, individuals, or federal agencies

30  as are necessary, expedient, or incidental to the performance

31  of duties.

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         i.  Issue final orders which include findings of fact

  2  and conclusions of law and which constitute final agency

  3  action for the purpose of chapter 120.

  4         j.  Enforce compliance with the provisions of this

  5  section through civil or administrative proceedings.

  6         k.  Make recommendations concerning any matter within

  7  the purview of this section, this chapter, chapter 322, or

  8  chapter 327.

  9         l.  Promulgate rules for the administration and

10  implementation of this section, including definitions of

11  terms.

12         m.  Consult and cooperate with other entities for the

13  purpose of implementing the mandates of this section.

14         n.  Have the authority to approve the type of blood

15  test utilized under the driving and boating under the

16  influence provisions and related provisions located in this

17  chapter and chapters 322 and 327.

18         o.  Have the authority to specify techniques and

19  methods for breath alcohol testing and blood testing utilized

20  under the driving and boating under the influence provisions

21  and related provisions located in this chapter and chapters

22  322 and 327.

23         p.  Have the authority to approve repair facilities for

24  the approved breath test instruments, including the authority

25  to set criteria for approval.

26

27  Nothing in this section shall be construed to supersede

28  provisions in this chapter and chapters 322 and 327. The

29  specifications in this section are derived from the power and

30  authority previously and currently possessed by the Department

31

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  of Law Enforcement and are enumerated to conform with the

  2  mandates of chapter 99-379, Laws of Florida.

  3         (b)1.  The blood-alcohol level must be based upon grams

  4  of alcohol per 100 milliliters of blood. The breath-alcohol

  5  level must be based upon grams of alcohol per 210 liters of

  6  breath.

  7         2.  An analysis of a person's breath, in order to be

  8  considered valid under this section, must have been performed

  9  substantially according to methods approved by the Department

10  of Law Enforcement.  For this purpose, the department may

11  approve satisfactory techniques or methods.  Any insubstantial

12  differences between approved techniques and actual testing

13  procedures in any individual case do not render the test or

14  test results invalid.

15         (c)  Any person who accepts the privilege extended by

16  the laws of this state of operating a motor vehicle within

17  this state is, by operating such vehicle, deemed to have given

18  his or her consent to submit to an approved blood test for the

19  purpose of determining the alcoholic content of the blood or a

20  blood test for the purpose of determining the presence of

21  chemical substances or controlled substances as provided in

22  this section if there is reasonable cause to believe the

23  person was driving or in actual physical control of a motor

24  vehicle while under the influence of alcoholic beverages or

25  chemical or controlled substances and the person appears for

26  treatment at a hospital, clinic, or other medical facility and

27  the administration of a breath or urine test is impractical or

28  impossible. As used in this paragraph, the term "other medical

29  facility" includes an ambulance or other medical emergency

30  vehicle. The blood test shall be performed in a reasonable

31  manner. Any person who is incapable of refusal by reason of

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  unconsciousness or other mental or physical condition is

  2  deemed not to have withdrawn his or her consent to such test.

  3  A blood test may be administered whether or not the person is

  4  told that his or her failure to submit to such a blood test is

  5  a misdemeanor and, in addition, will result in the suspension

  6  of the person's privilege to operate a motor vehicle upon the

  7  public highways of this state.  Any person who is capable of

  8  refusal shall be told that his or her failure to submit to

  9  such a blood test is a misdemeanor and, in addition, will

10  result in the suspension of the person's privilege to operate

11  a motor vehicle for a period of 1 year for a first refusal, or

12  for a period of 18 months if the driving privilege of the

13  person has been suspended previously as a result of a refusal

14  to submit to such a test or tests.  The refusal to submit to a

15  blood test upon the request of a law enforcement officer is

16  admissible in evidence in any criminal proceeding.

17         (d)  If the arresting officer does not request a

18  chemical or physical breath test of the person arrested for

19  any offense allegedly committed while the person was driving

20  or was in actual physical control of a motor vehicle while

21  under the influence of alcoholic beverages or controlled

22  substances, such person may request the arresting officer to

23  have a chemical or physical test made of the arrested person's

24  breath or a test of the urine or blood for the purpose of

25  determining the alcoholic content of the person's blood or

26  breath or the presence of chemical substances or controlled

27  substances; and, if so requested, the arresting officer shall

28  have the test performed.

29         (e)1.  By applying for a driver's license and by

30  accepting and using a driver's license, the person holding the

31

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






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

  2  consent to the provisions of this section.

  3         2.  A nonresident or any other person driving in a

  4  status exempt from the requirements of the driver's license

  5  law, by his or her act of driving in such exempt status, is

  6  deemed to have expressed his or her consent to the provisions

  7  of this section.

  8         3.  A warning of the consent provision of this section

  9  shall be printed above the signature line on each new or

10  renewed driver's license.

11         (f)1.  The tests determining the weight of alcohol in

12  the defendant's blood or breath shall be administered at the

13  request of a law enforcement officer substantially in

14  accordance with rules of the Department of Law Enforcement.

15  Such rules must specify precisely the test or tests that are

16  approved by the Department of Law Enforcement for reliability

17  of result and ease of administration, and must provide an

18  approved method of administration which must be followed in

19  all such tests given under this section.  However, the failure

20  of a law enforcement officer to request the withdrawal of

21  blood does not affect the admissibility of a test of blood

22  withdrawn for medical purposes.

23         2.a.  Only a physician, certified paramedic, registered

24  nurse, licensed practical nurse, other personnel authorized by

25  a hospital to draw blood, or duly licensed clinical laboratory

26  director, supervisor, technologist, or technician, acting at

27  the request of a law enforcement officer, may withdraw blood

28  for the purpose of determining its alcoholic content or the

29  presence of chemical substances or controlled substances

30  therein. However, the failure of a law enforcement officer to

31  request the withdrawal of blood does not affect the

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  admissibility of a test of blood withdrawn for medical

  2  purposes.

  3         b.  Notwithstanding any provision of law pertaining to

  4  the confidentiality of hospital records or other medical

  5  records, if a health care provider, who is providing medical

  6  care in a health care facility to a person injured in a motor

  7  vehicle crash, becomes aware, as a result of any blood test

  8  performed in the course of that medical treatment, that the

  9  person's blood-alcohol level meets or exceeds the

10  blood-alcohol level specified in s. 316.193(1)(b), the health

11  care provider may notify any law enforcement officer or law

12  enforcement agency. Any such notice must be given within a

13  reasonable time after the health care provider receives the

14  test result. Any such notice shall be used only for the

15  purpose of providing the law enforcement officer with

16  reasonable cause to request the withdrawal of a blood sample

17  pursuant to this section.

18         c.  The notice shall consist only of the name of the

19  person being treated, the name of the person who drew the

20  blood, the blood-alcohol level indicated by the test, and the

21  date and time of the administration of the test.

22         d.  Nothing contained in s. 395.3025(4), s. 456.057, or

23  any applicable practice act affects the authority to provide

24  notice under this section, and the health care provider is not

25  considered to have breached any duty owed to the person under

26  s. 395.3025(4), s. 456.057, or any applicable practice act by

27  providing notice or failing to provide notice. It shall not be

28  a breach of any ethical, moral, or legal duty for a health

29  care provider to provide notice or fail to provide notice.

30         e.  A civil, criminal, or administrative action may not

31  be brought against any person or health care provider

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  participating in good faith in the provision of notice or

  2  failure to provide notice as provided in this section. Any

  3  person or health care provider participating in the provision

  4  of notice or failure to provide notice as provided in this

  5  section shall be immune from any civil or criminal liability

  6  and from any professional disciplinary action with respect to

  7  the provision of notice or failure to provide notice under

  8  this section. Any such participant has the same immunity with

  9  respect to participating in any judicial proceedings resulting

10  from the notice or failure to provide notice.

11         3.  The person tested may, at his or her own expense,

12  have a physician, registered nurse, other personnel authorized

13  by a hospital to draw blood, or duly licensed clinical

14  laboratory director, supervisor, technologist, or technician,

15  or other person of his or her own choosing administer an

16  independent test in addition to the test administered at the

17  direction of the law enforcement officer for the purpose of

18  determining the amount of alcohol in the person's blood or

19  breath or the presence of chemical substances or controlled

20  substances at the time alleged, as shown by chemical analysis

21  of his or her blood or urine, or by chemical or physical test

22  of his or her breath. The failure or inability to obtain an

23  independent test by a person does not preclude the

24  admissibility in evidence of the test taken at the direction

25  of the law enforcement officer.  The law enforcement officer

26  shall not interfere with the person's opportunity to obtain

27  the independent test and shall provide the person with timely

28  telephone access to secure the test, but the burden is on the

29  person to arrange and secure the test at the person's own

30  expense.

31

                                  15

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         4.  Upon the request of the person tested, full

  2  information concerning the test taken at the direction of the

  3  law enforcement officer shall be made available to the person

  4  or his or her attorney.

  5         5.  A hospital, clinical laboratory, medical clinic, or

  6  similar medical institution or physician, certified paramedic,

  7  registered nurse, licensed practical nurse, other personnel

  8  authorized by a hospital to draw blood, or duly licensed

  9  clinical laboratory director, supervisor, technologist, or

10  technician, or other person assisting a law enforcement

11  officer does not incur any civil or criminal liability as a

12  result of the withdrawal or analysis of a blood or urine

13  specimen, or the chemical or physical test of a person's

14  breath pursuant to accepted medical standards when requested

15  by a law enforcement officer, regardless of whether or not the

16  subject resisted administration of the test.

17         (2)  The results of any test administered pursuant to

18  this section for the purpose of detecting the presence of any

19  controlled substance shall not be admissible as evidence in a

20  criminal prosecution for the possession of a controlled

21  substance.

22         (3)  Notwithstanding any provision of law pertaining to

23  the confidentiality of hospital records or other medical

24  records, information relating to the alcoholic content of the

25  blood or breath or the presence of chemical substances or

26  controlled substances in the blood obtained pursuant to this

27  section shall be released to a court, prosecuting attorney,

28  defense attorney, or law enforcement officer in connection

29  with an alleged violation of s. 316.193 upon request for such

30  information.

31

                                  16

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         Section 3.  Subsection (1) of section 316.1933, Florida

  2  Statutes, is amended to read:

  3         316.1933  Blood test for impairment or intoxication in

  4  cases of death or serious bodily injury; right to use

  5  reasonable force.--

  6         (1)(a)  Notwithstanding any recognized ability to

  7  refuse to submit to the tests provided in s. 316.1932 or any

  8  recognized power to revoke the implied consent to such tests,

  9  If a law enforcement officer has probable cause to believe

10  that a motor vehicle driven by or in the actual physical

11  control of a person under the influence of alcoholic

12  beverages, any chemical substances, or any controlled

13  substances has caused the death or serious bodily injury of a

14  human being, such person shall submit, upon the request of a

15  law enforcement officer shall require the person driving or in

16  actual physical control of the motor vehicle to submit, to a

17  test of the person's blood for the purpose of determining the

18  alcoholic content thereof or the presence of chemical

19  substances as set forth in s. 877.111 or any substance

20  controlled under chapter 893.  The law enforcement officer may

21  use reasonable force if necessary to require such person to

22  submit to the administration of the blood test.  The blood

23  test shall be performed in a reasonable manner.

24  Notwithstanding s. 316.1932, the testing required by this

25  paragraph need not be incidental to a lawful arrest of the

26  person.

27         (b)  The term "serious bodily injury" means an injury

28  to any person, including the driver, which consists of a

29  physical condition that creates a substantial risk of death,

30  serious personal disfigurement, or protracted loss or

31  impairment of the function of any bodily member or organ.

                                  17

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         Section 4.  Subsection (1) of section 316.1937, Florida

  2  Statutes, is amended to read:

  3         316.1937  Ignition interlock devices, requiring;

  4  unlawful acts.--

  5         (1)  In addition to any other authorized penalties, the

  6  court may require that any person who is convicted of driving

  7  under the influence in violation of s. 316.193, and who is

  8  granted probation, shall not operate a motor vehicle during

  9  the period of probation unless that vehicle is equipped with a

10  functioning ignition interlock device certified by the

11  department as provided in s. 316.1938, and installed in such a

12  manner that the vehicle will not start if the operator's blood

13  alcohol level is in excess of 0.05 percent or as otherwise

14  specified by the court. The court may require the use of an

15  approved ignition interlock device for the period of

16  probation, said period to be for not less than 6 months, if

17  the person is permitted to operate a motor vehicle, whether

18  the privilege to operate a motor vehicle is restricted or not,

19  as determined by the court. The court shall require placement

20  of an ignition interlock device in accordance with s.

21  316.193(2)(a).

22         Section 5.  Section 316.1939, Florida Statutes, is

23  created to read:

24         316.1939  Refusal to submit to testing; penalties.--

25         (1)  Any person who has refused to submit to a chemical

26  or physical test of his or her breath, blood, or urine as

27  described in s. 316.1932, and:

28         (a)  Who the arresting law enforcement officer had

29  probable cause to believe was driving or in actual physical

30  control of a motor vehicle in this state while under the

31

                                  18

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  influence of alcoholic beverages, chemical substances, or

  2  controlled substances.

  3         (b)  Who was placed under lawful arrest for a violation

  4  of s. 316.193, unless such test was requested pursuant to s.

  5  316.1932(1)(c).

  6         (c)  Who was informed that refusal to submit to such

  7  test is a misdemeanor.

  8         (d)  Who, after having been so informed, refused to

  9  submit to any such test when requested to do so by a law

10  enforcement officer or correctional officer

11

12  commits a misdemeanor of the first degree and is subject to

13  punishment 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)  Except as provided in s. 316.193, the disposition

18  of a criminal action under this section does not affect any

19  administrative proceeding that relates to the suspension of a

20  person's driving privilege.

21         Section 6.  Paragraph (a) of subsection (2) of section

22  322.271, Florida Statutes, is amended to read:

23         322.271  Authority to modify revocation, cancellation,

24  or suspension order.--

25         (2)(a)  Upon such hearing, the person whose license has

26  been suspended, canceled, or revoked may show that such

27  suspension, cancellation, or revocation of his or her license

28  causes a serious hardship and precludes the person's carrying

29  out his or her normal business occupation, trade, or

30  employment and that the use of the person's license in the

31  normal course of his or her business is necessary to the

                                  19

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  proper support of the person or his or her family.  Except as

  2  otherwise provided in this subsection, the department shall

  3  require proof of the successful completion of the applicable

  4  department-approved driver training course operating pursuant

  5  to s. 318.1451 or DUI program substance abuse education course

  6  and evaluation as provided in s. 316.193(5). Letters of

  7  recommendation from respected business persons in the

  8  community, law enforcement officers, or judicial officers may

  9  also be required to determine whether such person should be

10  permitted to operate a motor vehicle on a restricted basis for

11  business or employment use only and in determining whether

12  such person can be trusted to so operate a motor vehicle. If a

13  driver's license has been suspended under the point system or

14  pursuant to s. 322.2615, the department shall require proof of

15  enrollment in the applicable department-approved driver

16  training course or licensed DUI program substance abuse

17  education course, including evaluation and treatment, if

18  referred, and may require letters of recommendation described

19  in this subsection to determine if the driver should be

20  reinstated on a restricted basis. If such person fails to

21  complete the approved course within 90 days after

22  reinstatement or subsequently fails to complete treatment, if

23  applicable, the department shall cancel his or her driver's

24  license until the course and treatment, if applicable, is

25  successfully completed, notwithstanding the terms of the court

26  order or any suspension or revocation of the driving

27  privilege. The department may temporarily reinstate the

28  driving privilege on a restricted basis upon verification from

29  the DUI program that the offender has reentered and is

30  currently participating in treatment and has completed the DUI

31  education course and evaluation requirement. If the DUI

                                  20

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  program notifies the department of the second failure to

  2  complete treatment, the department shall reinstate the driving

  3  privilege only after notice of completion of treatment from

  4  the DUI program.  The privilege of driving on a limited or

  5  restricted basis for business or employment use shall not be

  6  granted to a person who has been convicted of a violation of

  7  s. 316.193 until completion of the DUI program substance abuse

  8  education course and evaluations as provided in s. 316.193(5).

  9  Except as provided in paragraph (b), the privilege of driving

10  on a limited or restricted basis for business or employment

11  use shall not be granted to a person whose license is revoked

12  pursuant to s. 322.28 or suspended pursuant to s. 322.2615 and

13  who has been convicted of a violation of s. 316.193 two or

14  more times or whose license has been suspended two or more

15  times for refusal to submit to a test pursuant to s. 322.2615

16  or former s. 322.261, except in those circumstances where a

17  court has required use of an ignition interlock device

18  pursuant to s. 316.193(2)(a).

19         Section 7.  Subsections (2), (3), (4), and (8) of

20  section 327.35, Florida Statutes, are amended to read:

21         327.35  Boating under the influence; penalties;

22  "designated drivers".--

23         (2)(a)  Except as provided in paragraph (b), subsection

24  (3), or subsection (4), any person who is convicted of a

25  violation of subsection (1) shall be punished:

26         1.  By a fine of:

27         a.  Not less than $250 or more than $500 for a first

28  conviction.

29         b.  Not less than $500 or more than $1,000 for a second

30  conviction.

31

                                  21

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  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. Further, any vessel owned by the convicted person and

13  used in the commission of the offense shall be forfeited to

14  the state in accordance with the provisions of the Florida

15  Contraband Forfeiture Act, ss. 932.701-932.707.

16         (3)  Any person:

17         (a)  Who is in violation of subsection (1);

18         (b)  Who operates a vessel; and

19         (c)  Who, by reason of such operation, causes or

20  contributes to the cause of:

21         1.  Damage to the property or person of another commits

22  a misdemeanor of the first degree, punishable as provided in

23  s. 775.082 or s. 775.083.

24         2.  Serious bodily injury to another, as defined in s.

25  327.353 316.1933, commits a felony of the third degree,

26  punishable as provided in s. 775.082, s. 775.083, or s.

27  775.084.

28         3.  The death of any human being commits BUI

29  manslaughter, and commits:

30         a.  A felony of the second degree, punishable as

31  provided in s. 775.082, s. 775.083, or s. 775.084.

                                  22

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         b.  A felony of the first degree, punishable as

  2  provided in s. 775.082, s. 775.083, or s. 775.084, if:

  3         (I)  At the time of the accident, the person knew, or

  4  should have known, that the accident occurred; and

  5         (II)  The person failed to give information and render

  6  aid as required by s. 327.30 316.062.

  7

  8  This sub-subparagraph does not require that the person knew

  9  that the accident resulted in injury or death.

10         (4)  Any person who is convicted of a violation of

11  subsection (1) and who has a blood-alcohol level or

12  breath-alcohol level of 0.20 or higher, or any person who is

13  convicted of a violation of subsection (1) and who at the time

14  of the offense was accompanied in the vessel by a person under

15  the age of 18 years, shall be punished:

16         (a)  By a fine of:

17         1.  Not less than $500 or more than $1,000 for a first

18  conviction.

19         2.  Not less than $1,000 or more than $2,000 for a

20  second conviction.

21         3.  Not less than $2,000 or more than $5,000 for a

22  third or subsequent conviction.

23         (b)  By imprisonment for:

24         1.  Not more than 9 months for a first conviction.

25         2.  Not more than 12 months for a second conviction.

26         3.  Not more than 12 months for a third conviction.

27

28  For the purposes of this subsection, only the instant offense

29  is required to be a violation of subsection (1) by a person

30  who has a blood-alcohol level or breath-alcohol level of 0.20

31  or higher.

                                  23

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         (8)(a)  A person who is arrested for a violation of

  2  this section may not be released from custody:

  3         1.(a)  Until the person is no longer under the

  4  influence of alcoholic beverages, any chemical substance set

  5  forth in s. 877.111, or any substance controlled under chapter

  6  893 and affected to the extent that his or her normal

  7  faculties are impaired;

  8         2.(b)  Until the person's blood-alcohol level or

  9  breath-alcohol level is less than 0.05; or

10         3.(c)  Until 8 hours have elapsed from the time the

11  person was arrested.

12         (b)  The arresting officer may place the person in

13  protective custody pursuant to s. 397.6772 if:

14         1.  The person has previously been convicted of a

15  violation of this section or s. 316.193;

16         2.  The person's blood-alcohol level or breath-alcohol

17  level, as determined by a test conducted incident to the

18  person's arrest, was 0.20 or greater;

19         3.  The person, by reason of operation of a vessel, has

20  caused death or serious bodily injury as defined in s.

21  327.353; or

22         4.  The person is on pretrial release for a previous

23  offense under this section or s. 316.193.

24

25  The election to place a person in protective custody may be

26  done at the time of arrest, but transfer of the person to a

27  facility shall not occur prior to the conclusion of the time

28  period set forth in paragraph (a).  The provisions of this

29  paragraph are in addition to, not in lieu of, the provisions

30  of subsection (5).  A court shall order any person placed in

31  protective custody pursuant to this paragraph, who is

                                  24

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  subsequently convicted of a violation of this section, to pay

  2  the reasonable costs of evaluation and treatment.

  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

                                  25

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  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, is a misdemeanor and, in

14  addition, will result in a civil penalty of $500. The refusal

15  to submit to a chemical or physical breath or urine test upon

16  the request of a law enforcement officer as provided in this

17  section is admissible into evidence in any criminal

18  proceeding.

19         (b)1.  The blood-alcohol level must be based upon grams

20  of alcohol per 100 milliliters of blood. The breath-alcohol

21  level must be based upon grams of alcohol per 210 liters of

22  breath.

23         2.  An analysis of a person's breath, in order to be

24  considered valid under this section, must have been performed

25  substantially according to methods approved by the Department

26  of Law Enforcement. Any insubstantial differences between

27  approved techniques and actual testing procedures in any

28  individual case do not render the test or test results

29  invalid.

30         3.  The Alcohol Testing Program within the Department

31  of Law Enforcement is responsible for the regulation of the

                                  26

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  operation, inspection, and registration of breath test

  2  instruments utilized under the driving and boating under the

  3  influence provisions and related provisions located in this

  4  chapter and chapters 316 and 322. The program is responsible

  5  for the regulation of the individuals who operate, inspect,

  6  and instruct on the breath test instruments utilized in the

  7  driving and boating under the influence provisions and related

  8  provisions located in this chapter and chapters 316 and 322.

  9  The program is further responsible for the regulation of blood

10  analysts who conduct blood testing to be utilized under 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 shall:

14         a.  Establish uniform criteria for the issuance of

15  permits to breath test operators, agency inspectors,

16  instructors, blood analysts, and instruments.

17         b.  Have the authority to permit breath test operators,

18  agency inspectors, instructors, blood analysts, and

19  instruments.

20         c.  Have the authority to discipline and suspend,

21  revoke, or renew the permits of breath test operators, agency

22  inspectors, instructors, blood analysts, and instruments.

23         d.  Establish uniform requirements for instruction and

24  curricula for the operation and inspection of approved

25  instruments.

26         e.  Have the authority to specify one approved

27  curriculum for the operation and inspection of approved

28  instruments.

29         f.  Establish a procedure for the approval of breath

30  test operator and agency inspector classes.

31

                                  27

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         g.  Have the authority to approve or disapprove breath

  2  test instruments and accompanying paraphernalia for use

  3  pursuant to the driving and boating under the influence

  4  provisions and related provisions located in this chapter and

  5  chapters 316 and 322.

  6         h.  With the approval of the executive director of the

  7  Department of Law Enforcement, make and enter into contracts

  8  and agreements with other agencies, organizations,

  9  associations, corporations, individuals, or federal agencies

10  as are necessary, expedient, or incidental to the performance

11  of duties.

12         i.  Issue final orders which include findings of fact

13  and conclusions of law and which constitute final agency

14  action for the purpose of chapter 120.

15         j.  Enforce compliance with the provisions of this

16  section through civil or administrative proceedings.

17         k.  Make recommendations concerning any matter within

18  the purview of this section, this chapter, chapter 316, or

19  chapter 322.

20         l.  Promulgate rules for the administration and

21  implementation of this section, including definitions of

22  terms.

23         m.  Consult and cooperate with other entities for the

24  purpose of implementing the mandates of this section.

25         n.  Have the authority to approve the type of blood

26  test utilized under the driving and boating under the

27  influence provisions and related provisions located in this

28  chapter and chapters 316 and 322.

29         o.  Have the authority to specify techniques and

30  methods for breath alcohol testing and blood testing utilized

31  under the driving and boating under the influence provisions

                                  28

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  and related provisions located in this chapter and chapters

  2  316 and 322.

  3         p.  Have the authority to approve repair facilities for

  4  the approved breath test instruments, including the authority

  5  to set criteria for approval.

  6

  7  Nothing in this section shall be construed to supersede

  8  provisions in this chapter and chapters 316 and 322. The

  9  specifications in this section are derived from the power and

10  authority previously and currently possessed by the Department

11  of Law Enforcement and are enumerated to conform with the

12  mandates of chapter 99-379, Laws of Florida.

13         (c)  Any person who accepts the privilege extended by

14  the laws of this state of operating a vessel within this state

15  is, by operating such vessel, deemed to have given his or her

16  consent to submit to an approved blood test for the purpose of

17  determining the alcoholic content of the blood or a blood test

18  for the purpose of determining the presence of chemical

19  substances or controlled substances as provided in this

20  section if there is reasonable cause to believe the person was

21  operating a vessel while under the influence of alcoholic

22  beverages or chemical or controlled substances and the person

23  appears for treatment at a hospital, clinic, or other medical

24  facility and the administration of a breath or urine test is

25  impractical or impossible. As used in this paragraph, the term

26  "other medical facility" includes an ambulance or other

27  medical emergency vehicle. The blood test shall be performed

28  in a reasonable manner.  Any person who is incapable of

29  refusal by reason of unconsciousness or other mental or

30  physical condition is deemed not to have withdrawn his or her

31  consent to such test. Any person who is capable of refusal

                                  29

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  shall be told that his or her failure to submit to such a

  2  blood test is a misdemeanor and, in addition, will result in a

  3  civil penalty of $500. The refusal to submit to a blood test

  4  upon the request of a law enforcement officer shall be

  5  admissible in evidence in any criminal proceeding.

  6         (d)  If the arresting officer does not request a

  7  chemical or physical breath test of the person arrested for

  8  any offense allegedly committed while the person was operating

  9  a vessel while under the influence of alcoholic beverages or

10  controlled substances, the person may request the arresting

11  officer to have a chemical or physical test made of the

12  arrested person's breath or a test of the urine or blood for

13  the purpose of determining the alcoholic content of the

14  person's blood or breath or the presence of chemical

15  substances or controlled substances; and, if so requested, the

16  arresting officer shall have the test performed.

17         (e)1.  The tests determining the weight of alcohol in

18  the defendant's blood or breath shall be administered at the

19  request of a law enforcement officer substantially in

20  accordance with rules of the Department of Law Enforcement.

21  However, the failure of a law enforcement officer to request

22  the withdrawal of blood does not affect the admissibility of a

23  test of blood withdrawn for medical purposes.

24         2.  Only a physician, certified paramedic, registered

25  nurse, licensed practical nurse, other personnel authorized by

26  a hospital to draw blood, or duly licensed clinical laboratory

27  director, supervisor, technologist, or technician, acting at

28  the request of a law enforcement officer, may withdraw blood

29  for the purpose of determining its alcoholic content or the

30  presence of chemical substances or controlled substances

31  therein. However, the failure of a law enforcement officer to

                                  30

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  request the withdrawal of blood does not affect the

  2  admissibility of a test of blood withdrawn for medical

  3  purposes.

  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

                                  31

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  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. 327.35 upon request for such

22  information.

23         Section 9.  Subsection (1) of section 327.353, Florida

24  Statutes, is amended to read:

25         327.353  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. 327.352 or any

30  recognized power to revoke the implied consent to such tests,

31  If a law enforcement officer has probable cause to believe

                                  32

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  that a vessel operated by a person under the influence of

  2  alcoholic beverages, any chemical substances, or any

  3  controlled substances has caused the death or serious bodily

  4  injury of a human being, the person shall submit, upon the

  5  request of a law enforcement officer shall require the person

  6  operating or in actual physical control of the vessel to

  7  submit, to a test of the person's blood for the purpose of

  8  determining the alcoholic content thereof or the presence of

  9  chemical substances as set forth in s. 877.111 or any

10  substance controlled under chapter 893.  The law enforcement

11  officer may use reasonable force if necessary to require the

12  person to submit to the administration of the blood test.  The

13  blood test shall be performed in a reasonable manner.

14  Notwithstanding s. 327.352, the testing required by this

15  paragraph need not be incidental to a lawful arrest of the

16  person.

17         (b)  The term "serious bodily injury" means an injury

18  to any person, including the operator, which consists of a

19  physical condition that creates a substantial risk of death,

20  serious personal disfigurement, or protracted loss or

21  impairment of the function of any bodily member or organ.

22         Section 10.  Section 327.359, Florida Statutes, is

23  created to read:

24         327.359  Refusal to submit to testing; penalties.--Any

25  person who has refused to submit to a chemical or physical

26  test of his or her breath, blood, or urine, as described in s.

27  327.352, and:

28         (1)  Who the arresting law enforcement officer had

29  probable cause to believe was operating or in actual physical

30  control of a vessel in this state while under the influence of

31

                                  33

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  alcoholic beverages, chemical substances, or controlled

  2  substances.

  3         (2)  Who was placed under lawful arrest for a violation

  4  of s. 327.35, unless such test was requested pursuant to s.

  5  327.352(1)(c).

  6         (3)  Who was informed that refusal to submit to such

  7  test is a misdemeanor.

  8         (4)  Who, after having been so informed, refused to

  9  submit to any such test when requested to do so by a law

10  enforcement officer or correctional officer

11

12  commits a misdemeanor of the first degree and is subject to

13  punishment as provided in s. 775.082 or s. 775.083.

14         Section 11.  Section 397.6755, Florida Statutes, is

15  created to read:

16         397.6755  Evidence of criteria for involuntary

17  admissions and involuntary treatment; funding.--

18         (1)  In addition to any other ground that may give rise

19  to a finding that a person has lost the power of self-control

20  with respect to substance use and is likely to inflict

21  physical harm on himself or herself or another, a court may

22  find that a person has lost the power of self-control with

23  respect to substance use and is likely to inflict physical

24  harm on himself or herself or another if the person has been

25  arrested for a violation of s. 316.193 or s. 327.35, and:

26         (a)  The person has, previous to the arrest, been

27  convicted of a violation of s. 316.193 or s. 327.35;

28         (b)  The person's blood-alcohol level or breath-alcohol

29  level, as determined by a test conducted incident to the

30  person's arrest, was 0.20 or greater;

31

                                  34

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         (c)  The person, by reason of operation of a motor

  2  vehicle or a vessel, has caused death or serious bodily injury

  3  as defined in s. 316.1933 or s. 327.353; or

  4         (d)  The person is on pretrial release for a previous

  5  offense under s. 316.193 or s. 327.35.

  6         (2)  Any person who meets the criteria for involuntary

  7  admission pursuant to s. 397.675, who was placed in protective

  8  custody pursuant to s. 316.193(9)(b) or s. 327.35(8)(b), and

  9  who is a qualified resident as defined in s. 212.055(4)(d)

10  shall have the costs of evaluation and treatment paid from the

11  fund established pursuant to s. 212.055(4)(e).  A court shall

12  order any person whose care is paid for under this subsection,

13  who is subsequently convicted of a violation of s. 316.193 or

14  s. 327.35, to reimburse the provider of the services for the

15  reasonable cost of the services provided and, if the person is

16  unable to reimburse the provider, a civil judgment in favor of

17  such fund shall be entered.

18         Section 12.  Paragraphs (f) and (i) of subsection (3)

19  of section 921.0022, Florida Statutes, as amended by chapter

20  2001-358, Laws of Florida, are amended to read:

21         921.0022  Criminal Punishment Code; offense severity

22  ranking chart.--

23         (3)  OFFENSE SEVERITY RANKING CHART

24

25  Florida           Felony

26  Statute           Degree             Description

27

28                              (f)  LEVEL 6

29  316.027(1)(b)      2nd      Accident involving death, failure

30                              to stop; leaving scene.

31

                                  35

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  316.193(2)(b)      3rd      Felony DUI, 3rd 4th or subsequent

  2                              conviction.

  3  327.35(2)(b)       3rd      Felony BUI, 3rd or subsequent

  4                              conviction.

  5  775.0875(1)        3rd      Taking firearm from law

  6                              enforcement officer.

  7  775.21(10)         3rd      Sexual predators; failure to

  8                              register; failure to renew

  9                              driver's license or

10                              identification card.

11  784.021(1)(a)      3rd      Aggravated assault; deadly weapon

12                              without intent to kill.

13  784.021(1)(b)      3rd      Aggravated assault; intent to

14                              commit felony.

15  784.041            3rd      Felony battery.

16  784.048(3)         3rd      Aggravated stalking; credible

17                              threat.

18  784.048(5)         3rd      Aggravated stalking of person

19                              under 16.

20  784.07(2)(c)       2nd      Aggravated assault on law

21                              enforcement officer.

22  784.074(1)(b)      2nd      Aggravated assault on sexually

23                              violent predators facility staff.

24  784.08(2)(b)       2nd      Aggravated assault on a person 65

25                              years of age or older.

26  784.081(2)         2nd      Aggravated assault on specified

27                              official or employee.

28  784.082(2)         2nd      Aggravated assault by detained

29                              person on visitor or other

30                              detainee.

31

                                  36

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  784.083(2)         2nd      Aggravated assault on code

  2                              inspector.

  3  787.02(2)          3rd      False imprisonment; restraining

  4                              with purpose other than those in

  5                              s. 787.01.

  6  790.115(2)(d)      2nd      Discharging firearm or weapon on

  7                              school property.

  8  790.161(2)         2nd      Make, possess, or throw

  9                              destructive device with intent to

10                              do bodily harm or damage

11                              property.

12  790.164(1)         2nd      False report of deadly explosive

13                              or act of arson or violence to

14                              state property.

15  790.19             2nd      Shooting or throwing deadly

16                              missiles into dwellings, vessels,

17                              or vehicles.

18  794.011(8)(a)      3rd      Solicitation of minor to

19                              participate in sexual activity by

20                              custodial adult.

21  794.05(1)          2nd      Unlawful sexual activity with

22                              specified minor.

23  800.04(5)(d)       3rd      Lewd or lascivious molestation;

24                              victim 12 years of age or older

25                              but less than 16 years; offender

26                              less than 18 years.

27  800.04(6)(b)       2nd      Lewd or lascivious conduct;

28                              offender 18 years of age or

29                              older.

30

31

                                  37

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  806.031(2)         2nd      Arson resulting in great bodily

  2                              harm to firefighter or any other

  3                              person.

  4  810.02(3)(c)       2nd      Burglary of occupied structure;

  5                              unarmed; no assault or battery.

  6  812.014(2)(b)1.    2nd      Property stolen $20,000 or more,

  7                              but less than $100,000, grand

  8                              theft in 2nd degree.

  9  812.014(2)(b)2.    2nd      Property stolen cargo valued at

10                              less than $50,000, grand theft in

11                              2nd degree.

12  812.015(9)         2nd      Retail theft; property stolen

13                              $300 or more; second or

14                              subsequent conviction.

15  812.13(2)(c)       2nd      Robbery, no firearm or other

16                              weapon (strong-arm robbery).

17  817.034(4)(a)1.    1st      Communications fraud, value

18                              greater than $50,000.

19  817.4821(5)        2nd      Possess cloning paraphernalia

20                              with intent to create cloned

21                              cellular telephones.

22  825.102(1)         3rd      Abuse of an elderly person or

23                              disabled adult.

24  825.102(3)(c)      3rd      Neglect of an elderly person or

25                              disabled adult.

26  825.1025(3)        3rd      Lewd or lascivious molestation of

27                              an elderly person or disabled

28                              adult.

29  825.103(2)(c)      3rd      Exploiting an elderly person or

30                              disabled adult and property is

31                              valued at less than $20,000.

                                  38

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  827.03(1)          3rd      Abuse of a child.

  2  827.03(3)(c)       3rd      Neglect of a child.

  3  827.071(2)&(3)     2nd      Use or induce a child in a sexual

  4                              performance, or promote or direct

  5                              such performance.

  6  836.05             2nd      Threats; extortion.

  7  836.10             2nd      Written threats to kill or do

  8                              bodily injury.

  9  843.12             3rd      Aids or assists person to escape.

10  847.0135(3)        3rd      Solicitation of a child, via a

11                              computer service, to commit an

12                              unlawful sex act.

13  914.23             2nd      Retaliation against a witness,

14                              victim, or informant, with bodily

15                              injury.

16  943.0435(9)        3rd      Sex offenders; failure to comply

17                              with reporting requirements.

18  944.35(3)(a)2.     3rd      Committing malicious battery upon

19                              or inflicting cruel or inhuman

20                              treatment on an inmate or

21                              offender on community

22                              supervision, resulting in great

23                              bodily harm.

24  944.40             2nd      Escapes.

25  944.46             3rd      Harboring, concealing, aiding

26                              escaped prisoners.

27  944.47(1)(a)5.     2nd      Introduction of contraband

28                              (firearm, weapon, or explosive)

29                              into correctional facility.

30

31

                                  39

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  951.22(1)          3rd      Intoxicating drug, firearm, or

  2                              weapon introduced into county

  3                              facility.

  4                              (i)  LEVEL 9

  5  316.193

  6   (3)(c)3.b.        1st      DUI manslaughter; failing to

  7                              render aid or give information.

  8  327.35(3)(c)3.b.   1st      BUI manslaughter; failing to

  9                              render aid or give information.

10  560.123(8)(b)3.    1st      Failure to report currency or

11                              payment instruments totaling or

12                              exceeding $100,000 by money

13                              transmitter.

14  560.125(5)(c)      1st      Money transmitter business by

15                              unauthorized person, currency, or

16                              payment instruments totaling or

17                              exceeding $100,000.

18  655.50(10)(b)3.    1st      Failure to report financial

19                              transactions totaling or

20                              exceeding $100,000 by financial

21                              institution.

22  755.0844           1st      Aggravated white collar crime.

23  782.04(1)          1st      Attempt, conspire, or solicit to

24                              commit premeditated murder.

25  782.04(3)          1st,PBL   Accomplice to murder in

26                              connection with arson, sexual

27                              battery, robbery, burglary, and

28                              other specified felonies.

29

30

31

                                  40

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  782.051(1)         1st      Attempted felony murder while

  2                              perpetrating or attempting to

  3                              perpetrate a felony enumerated in

  4                              s. 782.04(3).

  5  782.07(2)          1st      Aggravated manslaughter of an

  6                              elderly person or disabled adult.

  7  787.01(1)(a)1.     1st,PBL  Kidnapping; hold for ransom or

  8                              reward or as a shield or hostage.

  9  787.01(1)(a)2.     1st,PBL  Kidnapping with intent to commit

10                              or facilitate commission of any

11                              felony.

12  787.01(1)(a)4.     1st,PBL  Kidnapping with intent to

13                              interfere with performance of any

14                              governmental or political

15                              function.

16  787.02(3)(a)       1st      False imprisonment; child under

17                              age 13; perpetrator also commits

18                              aggravated child abuse, sexual

19                              battery, or lewd or lascivious

20                              battery, molestation, conduct, or

21                              exhibition.

22  790.161            1st      Attempted capital destructive

23                              device offense.

24  790.166(2)         1st,PBL  Possessing, selling, using, or

25                              attempting to use a weapon of

26                              mass destruction.

27  794.011(2)         1st      Attempted sexual battery; victim

28                              less than 12 years of age.

29

30

31

                                  41

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  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 or introducing

26                              bacteria, radioactive materials,

27                              viruses, or chemical compounds

28                              into food, drink, medicine, or

29                              water with intent to kill or

30                              injure another person.

31

                                  42

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  893.135            1st      Attempted capital trafficking

  2                              offense.

  3  893.135(1)(a)3.    1st      Trafficking in cannabis, more

  4                              than 10,000 lbs.

  5  893.135

  6   (1)(b)1.c.        1st      Trafficking in cocaine, more than

  7                              400 grams, less than 150

  8                              kilograms.

  9  893.135

10   (1)(c)1.c.        1st      Trafficking in illegal drugs,

11                              more than 28 grams, less than 30

12                              kilograms.

13  893.135

14   (1)(d)1.c.        1st      Trafficking in phencyclidine,

15                              more than 400 grams.

16  893.135

17   (1)(e)1.c.        1st      Trafficking in methaqualone, more

18                              than 25 kilograms.

19  893.135

20   (1)(f)1.c.        1st      Trafficking in amphetamine, more

21                              than 200 grams.

22  893.135

23   (1)(h)1.c.        1st      Trafficking in

24                              gamma-hydroxybutyric acid (GHB),

25                              10 kilograms or more.

26  893.135

27   (1)(i)1.c.        1st      Trafficking in 1,4-Butanediol, 10

28                              kilograms or more.

29  893.135

30   (1)(j)2.c.        1st      Trafficking in Phenethylamines,

31                              400 grams or more.

                                  43

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1  896.101(5)(c)      1st      Money laundering, financial

  2                              instruments totaling or exceeding

  3                              $100,000.

  4  896.104(4)(a)3.    1st      Structuring transactions to evade

  5                              reporting or registration

  6                              requirements, financial

  7                              transactions totaling or

  8                              exceeding $100,000.

  9         Section 13.  Paragraph (a) of subsection (2) of section

10  932.701, Florida Statutes, is amended to read:

11         932.701  Short title; definitions.--

12         (2)  As used in the Florida Contraband Forfeiture Act:

13         (a)  "Contraband article" means:

14         1.  Any controlled substance as defined in chapter 893

15  or any substance, device, paraphernalia, or currency or other

16  means of exchange that was used, was attempted to be used, or

17  was intended to be used in violation of any provision of

18  chapter 893, if the totality of the facts presented by the

19  state is clearly sufficient to meet the state's burden of

20  establishing probable cause to believe that a nexus exists

21  between the article seized and the narcotics activity, whether

22  or not the use of the contraband article can be traced to a

23  specific narcotics transaction.

24         2.  Any gambling paraphernalia, lottery tickets, money,

25  currency, or other means of exchange which was used, was

26  attempted, or intended to be used in violation of the gambling

27  laws of the state.

28         3.  Any equipment, liquid or solid, which was being

29  used, is being used, was attempted to be used, or intended to

30  be used in violation of the beverage or tobacco laws of the

31  state.

                                  44

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         4.  Any motor fuel upon which the motor fuel tax has

  2  not been paid as required by law.

  3         5.  Any personal property, including, but not limited

  4  to, any vessel, aircraft, item, object, tool, substance,

  5  device, weapon, machine, vehicle of any kind, money,

  6  securities, books, records, research, negotiable instruments,

  7  or currency, which was used or was attempted to be used as an

  8  instrumentality in the commission of, or in aiding or abetting

  9  in the commission of, any felony, whether or not comprising an

10  element of the felony, or which is acquired by proceeds

11  obtained as a result of a violation of the Florida Contraband

12  Forfeiture Act. The term "contraband article" includes any

13  motor vehicle or vessel used during the course of committing

14  an offense in violation of ss. 316.193 and 327.35.

15         6.  Any real property, including any right, title,

16  leasehold, or other interest in the whole of any lot or tract

17  of land, which was used, is being used, or was attempted to be

18  used as an instrumentality in the commission of, or in aiding

19  or abetting in the commission of, any felony, or which is

20  acquired by proceeds obtained as a result of a violation of

21  the Florida Contraband Forfeiture Act.

22         7.  Any personal property, including, but not limited

23  to, equipment, money, securities, books, records, research,

24  negotiable instruments, currency, or any vessel, aircraft,

25  item, object, tool, substance, device, weapon, machine, or

26  vehicle of any kind in the possession of or belonging to any

27  person who takes aquaculture products in violation of s.

28  812.014(2)(c).

29         8.  Any motor vehicle offered for sale in violation of

30  s. 320.28.

31

                                  45

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2002          CS/CS/HB 1057

    404-155-02






  1         9.  Any motor vehicle used during the course of

  2  committing an offense in violation of s. 322.34(9)(a).

  3         Section 14.  Section 938.07, Florida Statutes, is

  4  amended to read:

  5         938.07  Driving or boating under the

  6  influence.--Notwithstanding any other provision of s. 316.193

  7  or s. 327.35, a court cost of $135 shall be added to any fine

  8  imposed pursuant to s. 316.193 or s. 327.35. The clerks shall

  9  remit the funds to the Department of Revenue, $25 of which

10  shall be deposited in the Emergency Medical Services Trust

11  Fund, $50 shall be deposited in the Criminal Justice Standards

12  and Training Trust Fund of the Department of Law Enforcement

13  to be used for operational expenses in conducting the

14  statewide criminal analysis laboratory system established in

15  s. 943.32, and $60 shall be deposited in the Brain and Spinal

16  Cord Injury Rehabilitation Trust Fund created in s. 381.79.

17         Section 15.  This act shall take effect July 1, 2002.

18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  46

CODING: Words stricken are deletions; words underlined are additions.