Senate Bill sb2430

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                                  SB 2430

    By Senator Saunders





    37-695-03                                           See HB 947

  1                      A bill to be entitled

  2         An act relating to tests for alcohol, chemical

  3         substances, or controlled substances; amending

  4         ss. 316.1932 and 327.352, F.S.; revising

  5         provisions that provide for tests to determine

  6         blood alcohol content or the presence of

  7         chemical or controlled substances; providing an

  8         effective date.

  9  

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

11  

12         Section 1.  Section 316.1932, Florida Statutes, is

13  amended to read:

14         316.1932  Breath, blood, and urine Tests for alcohol,

15  chemical substances, or controlled substances; implied

16  consent; refusal.--

17         (1)(a)1.a.  Any person who accepts the privilege

18  extended by the laws of this state of operating a motor

19  vehicle within this state is, by so operating such vehicle,

20  deemed to have given his or her consent to submit to an

21  approved chemical test or physical test including, but not

22  limited to, an infrared light test of his or her breath for

23  the purpose of determining the alcoholic content of his or her

24  blood or breath, and to a urine test for the purpose of

25  detecting the presence of chemical substances as set forth in

26  s. 877.111 or controlled substances, if the person is lawfully

27  arrested for any offense allegedly committed while the person

28  was driving or was in actual physical control of a motor

29  vehicle while under the influence of alcoholic beverages,

30  chemical substances, or controlled substances. The chemical or

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

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1  administered at the request of a law enforcement officer who

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

 3  in actual physical control of the motor vehicle within this

 4  state while under the influence of alcoholic beverages. The

 5  urine test must be incidental to a lawful arrest and

 6  administered at a detention facility or any other facility,

 7  mobile or otherwise, which is equipped to administer such

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

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

10  actual physical control of a motor vehicle within this state

11  while under the influence of controlled substances. The urine

12  test shall be administered at a detention facility or any

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

14  administer such tests in a reasonable manner that will ensure

15  the accuracy of the specimen and maintain the privacy of the

16  individual involved. The administration of a breath one type

17  of test does not preclude the administration of another type

18  of test. The person shall be told that his or her failure to

19  submit to any lawful test of his or her breath or urine, or

20  both, will result in the suspension of the person's privilege

21  to operate a motor vehicle for a period of 1 year for a first

22  refusal, or for a period of 18 months if the driving privilege

23  of such person has been previously suspended as a result of a

24  refusal to submit to such a test or tests, and shall also be

25  told that if he or she refuses to submit to a lawful test of

26  his or her breath or urine, or both, and his or her driving

27  privilege has been previously suspended for a prior refusal to

28  submit to a lawful test of his or her breath, urine, or blood,

29  he or she commits a misdemeanor in addition to any other

30  penalties. The refusal to submit to a chemical or physical

31  breath test or to a urine test upon the request of a law

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1  enforcement officer as provided in this section is admissible

 2  into evidence in any criminal proceeding.

 3         b.  Any person who accepts the privilege extended by

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

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

 6  given his or her consent to submit to a urine test for the

 7  purpose of detecting the presence of chemical substances as

 8  set forth in s. 877.111 or controlled substances if the person

 9  is lawfully arrested for any offense allegedly committed while

10  the person was driving or was in actual physical control of a

11  motor vehicle while under the influence of chemical substances

12  or controlled substances. The urine test must be incidental to

13  a lawful arrest and administered at a detention facility or

14  any other facility, mobile or otherwise, which is equipped to

15  administer such tests at the request of a law enforcement

16  officer who has reasonable cause to believe such person was

17  driving or was in actual physical control of a motor vehicle

18  within this state while under the influence of chemical

19  substances or controlled substances. The urine test shall be

20  administered at a detention facility or any other facility,

21  mobile or otherwise, which is equipped to administer such test

22  in a reasonable manner that will ensure the accuracy of the

23  specimen and maintain the privacy of the individual involved.

24  The administration of a urine test does not preclude the

25  administration of another type of test. The person shall be

26  told that his or her failure to submit to any lawful test of

27  his or her urine will result in the suspension of the person

28  s privilege to operate a motor vehicle for a period of 1 year

29  for the first refusal, or for a period of 18 months if the

30  driving privilege of such person has been previously suspended

31  as a result of a refusal to submit to such a test or tests,

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1  and shall also be told that if he or she refuses to submit to

 2  a lawful test of his or her urine and his or her driving

 3  privilege has been previously suspended for a prior refusal to

 4  submit to a lawful test of his or her breath, urine, or blood,

 5  he or she commits a misdemeanor in addition to any other

 6  penalties. The refusal to submit to a urine test upon the

 7  request of a law enforcement officer as provided in this

 8  section is admissible into evidence in any criminal

 9  proceeding.

10         2.  The Alcohol Testing Program within the Department

11  of Law Enforcement is responsible for the regulation of the

12  operation, inspection, and registration of breath test

13  instruments utilized under the driving and boating under the

14  influence provisions and related provisions located in this

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

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

17  and instruct on the breath test instruments utilized in the

18  driving and boating under the influence provisions and related

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

20  The program is further responsible for the regulation of blood

21  analysts who conduct blood testing to be utilized under the

22  driving and boating under the influence provisions and related

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

24  The program shall:

25         a.  Establish uniform criteria for the issuance of

26  permits to breath test operators, agency inspectors,

27  instructors, blood analysts, and instruments.

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

29  agency inspectors, instructors, blood analysts, and

30  instruments.

31  

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1         c.  Have the authority to discipline and suspend,

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

 3  inspectors, instructors, blood analysts, and instruments.

 4         d.  Establish uniform requirements for instruction and

 5  curricula for the operation and inspection of approved

 6  instruments.

 7         e.  Have the authority to specify one approved

 8  curriculum for the operation and inspection of approved

 9  instruments.

10         f.  Establish a procedure for the approval of breath

11  test operator and agency inspector classes.

12         g.  Have the authority to approve or disapprove breath

13  test instruments and accompanying paraphernalia for use

14  pursuant to the driving and boating under the influence

15  provisions and related provisions located in this chapter and

16  chapters 322 and 327.

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

18  Department of Law Enforcement, make and enter into contracts

19  and agreements with other agencies, organizations,

20  associations, corporations, individuals, or federal agencies

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

22  of duties.

23         i.  Issue final orders which include findings of fact

24  and conclusions of law and which constitute final agency

25  action for the purpose of chapter 120.

26         j.  Enforce compliance with the provisions of this

27  section through civil or administrative proceedings.

28         k.  Make recommendations concerning any matter within

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

30  chapter 327.

31  

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1         l.  Promulgate rules for the administration and

 2  implementation of this section, including definitions of

 3  terms.

 4         m.  Consult and cooperate with other entities for the

 5  purpose of implementing the mandates of this section.

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

 7  test utilized under the driving and boating under the

 8  influence provisions and related provisions located in this

 9  chapter and chapters 322 and 327.

10         o.  Have the authority to specify techniques and

11  methods for breath alcohol testing and blood testing utilized

12  under the driving and boating under the influence provisions

13  and related provisions located in this chapter and chapters

14  322 and 327.

15         p.  Have the authority to approve repair facilities for

16  the approved breath test instruments, including the authority

17  to set criteria for approval.

18  

19  Nothing in this section shall be construed to supersede

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

21  specifications in this section are derived from the power and

22  authority previously and currently possessed by the Department

23  of Law Enforcement and are enumerated to conform with the

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

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

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

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

28  breath.

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

30  considered valid under this section, must have been performed

31  substantially according to methods approved by the Department

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




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

 2  approve satisfactory techniques or methods.  Any insubstantial

 3  differences between approved techniques and actual testing

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

 5  test results invalid.

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

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

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

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

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

11  blood test for the purpose of determining the presence of

12  chemical substances or controlled substances as provided in

13  this section if there is reasonable cause to believe the

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

15  vehicle while under the influence of alcoholic beverages or

16  chemical or controlled substances and the person appears for

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

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

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

20  facility" includes an ambulance or other medical emergency

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

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

23  unconsciousness or other mental or physical condition is

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

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

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

27  will result in the suspension of the person's privilege to

28  operate a motor vehicle upon the public highways of this state

29  and that a refusal to submit to a lawful test of his or her

30  blood, if his or her driving privilege has been previously

31  suspended for refusal to submit to a lawful test of his or her

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1  breath, urine, or blood, is a misdemeanor. Any person who is

 2  capable of refusal shall be told that his or her failure to

 3  submit to such a blood test will result in the suspension of

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

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

 6  the driving privilege of the person has been suspended

 7  previously as a result of a refusal to submit to such a test

 8  or tests, and that a refusal to submit to a lawful test of his

 9  or her blood, if his or her driving privilege has been

10  previously suspended for a prior refusal to submit to a lawful

11  test of his or her breath, urine, or blood, is a misdemeanor.

12  The refusal to submit to a blood test upon the request of a

13  law enforcement officer is admissible in evidence in any

14  criminal proceeding.

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

16  chemical or physical breath test of the person arrested for

17  any offense allegedly committed while the person was driving

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

19  under the influence of alcoholic beverages or controlled

20  substances, such person may request the arresting officer to

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

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

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

24  breath or the presence of chemical substances or controlled

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

26  have the test performed.

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

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

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

30  consent to the provisions of this section.

31  

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




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

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

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

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

 5  of this section.

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

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

 8  renewed driver's license.

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

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

11  request of a law enforcement officer substantially in

12  accordance with rules of the Department of Law Enforcement.

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

14  approved by the Department of Law Enforcement for reliability

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

16  approved method of administration which must be followed in

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

18  of a law enforcement officer to request the withdrawal of

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

20  withdrawn for medical purposes.

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

22  nurse, licensed practical nurse, other personnel authorized by

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

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

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

26  for the purpose of determining its alcoholic content or the

27  presence of chemical substances or controlled substances

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

29  request the withdrawal of blood does not affect the

30  admissibility of a test of blood withdrawn for medical

31  purposes.

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1         b.  Notwithstanding any provision of law pertaining to

 2  the confidentiality of hospital records or other medical

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

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

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

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

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

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

 9  care provider may notify any law enforcement officer or law

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

11  reasonable time after the health care provider receives the

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

13  purpose of providing the law enforcement officer with

14  reasonable cause to request the withdrawal of a blood sample

15  pursuant to this section.

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

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

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

19  date and time of the administration of the test.

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

21  any applicable practice act affects the authority to provide

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

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

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

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

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

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

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

29  be brought against any person or health care provider

30  participating in good faith in the provision of notice or

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

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1  person or health care provider participating in the provision

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

 3  section shall be immune from any civil or criminal liability

 4  and from any professional disciplinary action with respect to

 5  the provision of notice or failure to provide notice under

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

 7  respect to participating in any judicial proceedings resulting

 8  from the notice or failure to provide notice.

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

10  have a physician, registered nurse, other personnel authorized

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

12  laboratory director, supervisor, technologist, or technician,

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

14  independent test in addition to the test administered at the

15  direction of the law enforcement officer for the purpose of

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

17  breath or the presence of chemical substances or controlled

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

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

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

21  independent test by a person does not preclude the

22  admissibility in evidence of the test taken at the direction

23  of the law enforcement officer.  The law enforcement officer

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

25  the independent test and shall provide the person with timely

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

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

28  expense.

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

30  information concerning the test taken at the direction of the

31  

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 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. 316.193 upon request for such

28  information.

29         Section 2.  Section 327.352, Florida Statutes, is

30  amended to read:

31  

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1         327.352  Breath, blood, and urine Tests for alcohol,

 2  chemical substances, or controlled substances; implied

 3  consent; refusal.--

 4         (1)(a)1.  The Legislature declares that the operation

 5  of a vessel is a privilege that must be exercised in a

 6  reasonable manner. In order to protect the public health and

 7  safety, it is essential that a lawful and effective means of

 8  reducing the incidence of boating while impaired or

 9  intoxicated be established. Therefore, any person who accepts

10  the privilege extended by the laws of this state of operating

11  a vessel within this state is, by so operating such vessel,

12  deemed to have given his or her consent to submit to an

13  approved chemical test or physical test including, but not

14  limited to, an infrared light test of his or her breath for

15  the purpose of determining the alcoholic content of his or her

16  blood or breath, and to a urine test for the purpose of

17  detecting the presence of chemical substances as set forth in

18  s. 877.111 or controlled substances, if the person is lawfully

19  arrested for any offense allegedly committed while the person

20  was operating a vessel while under the influence of alcoholic

21  beverages, chemical substances, or controlled substances. The

22  chemical or physical breath test must be incidental to a

23  lawful arrest and administered at the request of a law

24  enforcement officer who has reasonable cause to believe such

25  person was operating the vessel within this state while under

26  the influence of alcoholic beverages. The urine test must be

27  incidental to a lawful arrest and administered at a detention

28  facility or any other facility, mobile or otherwise, which is

29  equipped to administer such tests at the request of a law

30  enforcement officer who has reasonable cause to believe such

31  person was operating a vessel within this state while under

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1  the influence of controlled substances. The urine test shall

 2  be administered at a detention facility or any other facility,

 3  mobile or otherwise, which is equipped to administer such

 4  tests in a reasonable manner that will ensure the accuracy of

 5  the specimen and maintain the privacy of the individual

 6  involved. The administration of a breath one type of test does

 7  not preclude the administration of another type of test. The

 8  person shall be told that his or her failure to submit to any

 9  lawful test of his or her breath or urine, or both, will

10  result in a civil penalty of $500, and shall also be told that

11  if he or she refuses to submit to a lawful test of his or her

12  breath or urine, or both, and he or she has been previously

13  fined for refusal to submit to any lawful test of his or her

14  breath, urine, or blood, he or she commits a misdemeanor in

15  addition to any other penalties. The refusal to submit to a

16  chemical or physical breath or urine test upon the request of

17  a law enforcement officer as provided in this section is

18  admissible into evidence in any criminal proceeding.

19         2.  Any person who accepts the privilege extended by

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

21  is, by so operating such vessel, deemed to have given his or

22  her consent to submit to a urine test for the purpose of

23  detecting the presence of chemical substances as set forth in

24  s. 877.111 or controlled substances if the person is lawfully

25  arrested for any offense allegedly committed while the person

26  was operating a vessel while under the influence of chemical

27  substances or controlled substances. The urine test must be

28  incidental to a lawful arrest and administered at a detention

29  facility or any other facility, mobile or otherwise, which is

30  equipped to administer such tests at the request of a law

31  enforcement officer who has reasonable cause to believe such

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1  person was operating a vessel within this state while under

 2  the influence of chemical substances or controlled substances.

 3  The urine test shall be administered at a detention facility

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

 5  to administer such test in a reasonable manner that will

 6  ensure the accuracy of the specimen and maintain the privacy

 7  of the individual involved. The administration of a urine 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 urine will result in a civil

11  penalty of $500, and shall also be told that if he or she

12  refuses to submit to a lawful test of his or her urine and he

13  or she has been previously fined for refusal to submit to any

14  lawful test of his or her breath, urine, or blood, he or she

15  commits a misdemeanor in addition to any other penalties. The

16  refusal to submit to a urine test upon the request of a law

17  enforcement officer as provided in this section is admissible

18  into evidence in any criminal 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

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 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  

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 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

                                  17

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 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

                                  18

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




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

 2  blood test will result in a civil penalty of $500 and that a

 3  refusal to submit to a lawful test of his or her blood, if he

 4  or she has previously been fined for refusal to submit to any

 5  lawful test of his or her breath, urine, or blood, is a

 6  misdemeanor. The refusal to submit to a blood test upon the

 7  request of a law enforcement officer shall be admissible in

 8  evidence in any criminal proceeding.

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

10  chemical or physical breath test of the person arrested for

11  any offense allegedly committed while the person was operating

12  a vessel while under the influence of alcoholic beverages or

13  controlled substances, the person may request the arresting

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

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

16  the purpose of determining the alcoholic content of the

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

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

19  arresting officer shall have the test performed.

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

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

22  request of a law enforcement officer substantially in

23  accordance with rules of the Department of Law Enforcement.

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

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

26  test of blood withdrawn for medical purposes.

27         2.  Only a physician, certified paramedic, registered

28  nurse, licensed practical nurse, other personnel authorized by

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

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

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

                                  19

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




 1  for the purpose of determining its alcoholic content or the

 2  presence of chemical substances or controlled substances

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

 4  request the withdrawal of blood does not affect the

 5  admissibility of a test of blood withdrawn for medical

 6  purposes.

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

 8  have a physician, registered nurse, other personnel authorized

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

10  laboratory director, supervisor, technologist, or technician,

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

12  independent test in addition to the test administered at the

13  direction of the law enforcement officer for the purpose of

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

15  breath or the presence of chemical substances or controlled

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

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

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

19  independent test by a person does not preclude the

20  admissibility in evidence of the test taken at the direction

21  of the law enforcement officer. The law enforcement officer

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

23  the independent test and shall provide the person with timely

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

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

26  expense.

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

28  information concerning the test taken at the direction of the

29  law enforcement officer shall be made available to the person

30  or his or her attorney.

31  

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    Florida Senate - 2003                                  SB 2430
    37-695-03                                           See HB 947




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

 2  similar medical institution or physician, certified paramedic,

 3  registered nurse, licensed practical nurse, other personnel

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

 5  clinical laboratory director, supervisor, technologist, or

 6  technician, or other person assisting a law enforcement

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

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

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

10  breath pursuant to accepted medical standards when requested

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

12  subject resisted administration of the test.

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

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

15  controlled substance shall not be admissible as evidence in a

16  criminal prosecution for the possession of a controlled

17  substance.

18         (3)  Notwithstanding any provision of law pertaining to

19  the confidentiality of hospital records or other medical

20  records, information relating to the alcoholic content of the

21  blood or breath or the presence of chemical substances or

22  controlled substances in the blood obtained pursuant to this

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

24  defense attorney, or law enforcement officer in connection

25  with an alleged violation of s. 327.35 upon request for such

26  information.

27         Section 3.  This act shall take effect upon becoming a

28  law.

29  

30  

31  

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