Senate Bill sb1112

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    Florida Senate - 2004                                  SB 1112

    By Senator Lynn





    7-801-04

  1                      A bill to be entitled

  2         An act relating to driving or boating under the

  3         influence of alcohol or a controlled substance;

  4         amending ss. 316.1932 and 316.1939, F.S.;

  5         providing that any person operating a motor

  6         vehicle within the state who refuses to submit

  7         to a breath, urine, or blood test upon the

  8         request of a law enforcement officer commits a

  9         misdemeanor of the first degree; deleting

10         provisions that limit imposition of the penalty

11         to a second or subsequent refusal to submit to

12         such a test; amending ss. 327.352 and 327.359,

13         F.S.; providing that any person operating a

14         vessel within the state who refuses to submit

15         to a breath, urine, or blood test upon the

16         request of a law enforcement officer commits a

17         misdemeanor of the first degree; deleting

18         provisions that limit imposition of the penalty

19         to a second or subsequent refusal to submit to

20         such a test; providing an effective date.

21  

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

23  

24         Section 1.  Paragraphs (a) and (c) of subsection (1) of

25  section 316.1932, Florida Statutes, are amended to read:

26         316.1932  Tests for alcohol, chemical substances, or

27  controlled substances; implied consent; refusal.--

28         (1)(a)1.

29         a.  Any person who accepts the privilege extended by

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

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

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    Florida Senate - 2004                                  SB 1112
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 1  given his or her consent to submit to an approved chemical

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

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

 4  determining the alcoholic content of his or her blood or

 5  breath if the person is lawfully arrested for any offense

 6  allegedly committed while the person was driving or was in

 7  actual physical control of a motor vehicle while under the

 8  influence of alcoholic beverages. The chemical or physical

 9  breath test must be incidental to a lawful arrest and

10  administered at the request of a law enforcement officer who

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

12  in actual physical control of the motor vehicle within this

13  state while under the influence of alcoholic beverages. The

14  administration of a breath test does not preclude the

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

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

17  his or her breath will result in the suspension of the

18  person's privilege to operate a motor vehicle for a period of

19  1 year for a first refusal, or for a period of 18 months if

20  the driving privilege of such person has been previously

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

22  tests, and shall also be told that if he or she refuses to

23  submit to a lawful test of his or her breath and his or her

24  driving privilege has been previously suspended for a prior

25  refusal to submit to a lawful test of his or her breath,

26  urine, or blood, he or she commits a misdemeanor in addition

27  to any other penalties. The refusal to submit to a chemical or

28  physical breath test upon the request of a law enforcement

29  officer as provided in this section is admissible into

30  evidence in any criminal proceeding.

31  

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    Florida Senate - 2004                                  SB 1112
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 1         b.  Any person who accepts the privilege extended by

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

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

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

 5  purpose of detecting the presence of chemical substances as

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

 7  is lawfully arrested for any offense allegedly committed while

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

 9  motor vehicle while under the influence of chemical substances

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

11  a lawful arrest and administered at a detention facility or

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

13  administer such tests at the request of a law enforcement

14  officer who has reasonable cause to believe such person was

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

16  within this state while under the influence of chemical

17  substances or controlled substances. The urine test shall be

18  administered at a detention facility or any other facility,

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

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

21  specimen and maintain the privacy of the individual involved.

22  The administration of a urine test does not preclude the

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

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

25  his or her urine will result in the suspension of the person's

26  privilege to operate a motor vehicle for a period of 1 year

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

28  driving privilege of such person has been previously suspended

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

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

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

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    Florida Senate - 2004                                  SB 1112
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 1  privilege has been previously suspended for a prior refusal to

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

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

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

 5  request of a law enforcement officer as provided in this

 6  section is admissible into evidence in any criminal

 7  proceeding.

 8         2.  The Alcohol Testing Program within the Department

 9  of Law Enforcement is responsible for the regulation of the

10  operation, inspection, and registration of breath test

11  instruments utilized under the driving and boating under the

12  influence provisions and related provisions located in this

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

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

15  and instruct on the breath test instruments utilized in the

16  driving and boating under the influence provisions and related

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

18  The program is further responsible for the regulation of blood

19  analysts who conduct blood testing to be utilized under the

20  driving and boating under the influence provisions and related

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

22  The program shall:

23         a.  Establish uniform criteria for the issuance of

24  permits to breath test operators, agency inspectors,

25  instructors, blood analysts, and instruments.

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

27  agency inspectors, instructors, blood analysts, and

28  instruments.

29         c.  Have the authority to discipline and suspend,

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

31  inspectors, instructors, blood analysts, and instruments.

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 1         d.  Establish uniform requirements for instruction and

 2  curricula for the operation and inspection of approved

 3  instruments.

 4         e.  Have the authority to specify one approved

 5  curriculum for the operation and inspection of approved

 6  instruments.

 7         f.  Establish a procedure for the approval of breath

 8  test operator and agency inspector classes.

 9         g.  Have the authority to approve or disapprove breath

10  test instruments and accompanying paraphernalia for use

11  pursuant to the driving and boating under the influence

12  provisions and related provisions located in this chapter and

13  chapters 322 and 327.

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

15  Department of Law Enforcement, make and enter into contracts

16  and agreements with other agencies, organizations,

17  associations, corporations, individuals, or federal agencies

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

19  of duties.

20         i.  Issue final orders which include findings of fact

21  and conclusions of law and which constitute final agency

22  action for the purpose of chapter 120.

23         j.  Enforce compliance with the provisions of this

24  section through civil or administrative proceedings.

25         k.  Make recommendations concerning any matter within

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

27  chapter 327.

28         l.  Promulgate rules for the administration and

29  implementation of this section, including definitions of

30  terms.

31  

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    Florida Senate - 2004                                  SB 1112
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 1         m.  Consult and cooperate with other entities for the

 2  purpose of implementing the mandates of this section.

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

 4  test utilized under the driving and boating under the

 5  influence provisions and related provisions located in this

 6  chapter and chapters 322 and 327.

 7         o.  Have the authority to specify techniques and

 8  methods for breath alcohol testing and blood testing utilized

 9  under the driving and boating under the influence provisions

10  and related provisions located in this chapter and chapters

11  322 and 327.

12         p.  Have the authority to approve repair facilities for

13  the approved breath test instruments, including the authority

14  to set criteria for approval.

15  

16  Nothing in this section shall be construed to supersede

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

18  specifications in this section are derived from the power and

19  authority previously and currently possessed by the Department

20  of Law Enforcement and are enumerated to conform with the

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

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

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

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

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

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

27  blood test for the purpose of determining the presence of

28  chemical substances or controlled substances as provided in

29  this section if there is reasonable cause to believe the

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

31  vehicle while under the influence of alcoholic beverages or

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    Florida Senate - 2004                                  SB 1112
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 1  chemical or controlled substances and the person appears for

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

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

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

 5  facility" includes an ambulance or other medical emergency

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

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

 8  unconsciousness or other mental or physical condition is

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

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

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

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

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

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

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

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

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

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

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

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

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

22  the driving privilege of the person has been suspended

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

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

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

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

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

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

29  law enforcement officer is admissible in evidence in any

30  criminal proceeding.

31  

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    Florida Senate - 2004                                  SB 1112
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 1         Section 2.  Subsection (1) of section 316.1939, Florida

 2  Statutes, is amended to read:

 3         316.1939  Refusal to submit to testing; penalties.--

 4         (1)  Any person who refuses has refused to submit to a

 5  chemical or physical test of his or her breath, blood, or

 6  urine, as described in s. 316.1932, and whose driving

 7  privilege was previously suspended for a prior refusal to

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

 9  and:

10         (a)  Who the arresting law enforcement officer had

11  probable cause to believe was driving or in actual physical

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

13  influence of alcoholic beverages, chemical substances, or

14  controlled substances;

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

16  of s. 316.193 unless such test was requested pursuant to s.

17  316.1932(1)(c);

18         (c)  Who was informed that, if he or she refused to

19  submit to such test, his or her privilege to operate a motor

20  vehicle would be suspended for a period of 1 year or, in the

21  case of a second or subsequent refusal, for a period of 18

22  months;

23         (d)  Who was informed that a refusal to submit to a

24  lawful test of his or her breath, urine, or blood, if his or

25  her driving privilege has been previously suspended for a

26  prior refusal to submit to a lawful test of his or her breath,

27  urine, or blood, is a misdemeanor; and

28         (e)  Who, after having been so informed, refuses

29  refused to submit to any such test when requested to do so by

30  a law enforcement officer or correctional officer,

31  

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    Florida Senate - 2004                                  SB 1112
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 1  commits a misdemeanor of the first degree and is subject to

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

 3         Section 3.  Paragraphs (a) and (c) of subsection (1) of

 4  section 327.352, Florida Statutes, are amended to read:

 5         327.352  Tests for alcohol, chemical substances, or

 6  controlled substances; implied consent; refusal.--

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

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

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

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

11  reducing the incidence of boating while impaired or

12  intoxicated be established. Therefore, any person who accepts

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

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

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

16  approved chemical test or physical test including, but not

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

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

19  blood or breath if the person is lawfully arrested for any

20  offense allegedly committed while the person was operating a

21  vessel while under the influence of alcoholic beverages. 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 administration of a

27  breath test does not preclude the administration of another

28  type of test. The person shall be told that his or her failure

29  to submit to any lawful test of his or her breath will result

30  in a civil penalty of $500, and shall also be told that if he

31  or she refuses to submit to a lawful test of his or her breath

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    Florida Senate - 2004                                  SB 1112
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 1  and he or she has been previously fined for refusal to submit

 2  to any lawful test of his or her breath, urine, or blood, he

 3  or she commits a misdemeanor in addition to any other

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

 5  breath test upon the request of a law enforcement officer as

 6  provided in this section is admissible into evidence in any

 7  criminal proceeding.

 8         2.  Any person who accepts the privilege extended by

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

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

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

12  detecting the presence of chemical substances as set forth in

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

14  arrested for any offense allegedly committed while the person

15  was operating a vessel while under the influence of chemical

16  substances or controlled substances. The urine test must be

17  incidental to a lawful arrest and administered at a detention

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

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

20  enforcement officer who has reasonable cause to believe such

21  person was operating a vessel within this state while under

22  the influence of chemical substances or controlled substances.

23  The urine test shall be administered at a detention facility

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

25  to administer such test in a reasonable manner that will

26  ensure the accuracy of the specimen and maintain the privacy

27  of the individual involved. The administration of a urine test

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

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

30  any lawful test of his or her urine will result in a civil

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

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

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

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

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

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

 6  enforcement officer as provided in this section is admissible

 7  into evidence in any criminal proceeding.

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

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

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

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

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

13  for the purpose of determining the presence of chemical

14  substances or controlled substances as provided in this

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

16  operating a vessel while under the influence of alcoholic

17  beverages or chemical or controlled substances and the person

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

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

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

21  "other medical facility" includes an ambulance or other

22  medical emergency vehicle. The blood test shall be performed

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

24  refusal by reason of unconsciousness or other mental or

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

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

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

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

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

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

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

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    Florida Senate - 2004                                  SB 1112
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 1  misdemeanor. The refusal to submit to a blood test upon the

 2  request of a law enforcement officer shall be admissible in

 3  evidence in any criminal proceeding.

 4         Section 4.  Section 327.359, Florida Statutes, is

 5  amended to read:

 6         327.359  Refusal to submit to testing; penalties.--Any

 7  person who refuses has refused to submit to a chemical or

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

 9  described in s. 327.352, and who has been previously fined for

10  refusal to submit to a lawful test of his or her breath,

11  urine, or blood, and:

12         (1)  Who the arresting law enforcement officer had

13  probable cause to believe was operating or in actual physical

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

15  alcoholic beverages, chemical substances, or controlled

16  substances;

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

18  of s. 327.35 unless such test was requested pursuant to s.

19  327.352(1)(c);

20         (3)  Who was informed that if he or she refused to

21  submit to such test he or she is subject to a fine of $500;

22         (4)  Who was informed that a refusal to submit to a

23  lawful test of his or her breath, urine, or blood, if he or

24  she has been previously fined for refusal to submit to a

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

26  misdemeanor; and

27         (5)  Who, after having been so informed, refuses

28  refused to submit to any such test when requested to do so by

29  a law enforcement officer or correctional officer,

30  

31  

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    Florida Senate - 2004                                  SB 1112
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 1  commits a misdemeanor of the first degree and is subject to

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

 3         Section 5.  This act shall take effect July 1, 2004.

 4  

 5            *****************************************

 6                          SENATE SUMMARY

 7    Provides that it is a first-degree misdemeanor to refuse
      to submit to a breath, urine, or blood test upon the
 8    request of a law enforcement officer while operating a
      motor vehicle or vessel, regardless of whether it is the
 9    first refusal or a second or subsequent refusal to submit
      to such a test.
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