| 1 | A bill to be entitled |
| 2 | An act relating to driving under the influence; amending |
| 3 | s. 316.193, F.S.; providing for using certain records of |
| 4 | the Department of Highway Safety and Motor Vehicles as |
| 5 | evidence establishing existence of certain previous |
| 6 | violations; providing for rebutting or contradicting of |
| 7 | such evidence; providing an effective date. |
| 8 |
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| 9 | Be It Enacted by the Legislature of the State of Florida: |
| 10 |
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| 11 | Section 1. Subsection (6) of section 316.193, Florida |
| 12 | Statutes, is amended to read: |
| 13 | 316.193 Driving under the influence; penalties.-- |
| 14 | (6) With respect to any person convicted of a violation of |
| 15 | subsection (1), regardless of any penalty imposed pursuant to |
| 16 | subsection (2), subsection (3), or subsection (4): |
| 17 | (a) For the first conviction, the court shall place the |
| 18 | defendant on probation for a period not to exceed 1 year and, as |
| 19 | a condition of such probation, shall order the defendant to |
| 20 | participate in public service or a community work project for a |
| 21 | minimum of 50 hours; or the court may order instead, that any |
| 22 | defendant pay an additional fine of $10 for each hour of public |
| 23 | service or community work otherwise required, if, after |
| 24 | consideration of the residence or location of the defendant at |
| 25 | the time public service or community work is required, payment |
| 26 | of the fine is in the best interests of the state. However, the |
| 27 | total period of probation and incarceration may not exceed 1 |
| 28 | year. The court must also, as a condition of probation, order |
| 29 | the impoundment or immobilization of the vehicle that was |
| 30 | operated by or in the actual control of the defendant or any one |
| 31 | vehicle registered in the defendant's name at the time of |
| 32 | impoundment or immobilization, for a period of 10 days or for |
| 33 | the unexpired term of any lease or rental agreement that expires |
| 34 | within 10 days. The impoundment or immobilization must not occur |
| 35 | concurrently with the incarceration of the defendant. The |
| 36 | impoundment or immobilization order may be dismissed in |
| 37 | accordance with paragraph (e), paragraph (f), paragraph (g), or |
| 38 | paragraph (h). |
| 39 | (b) For the second conviction for an offense that occurs |
| 40 | within a period of 5 years after the date of a prior conviction |
| 41 | for violation of this section, the court shall order |
| 42 | imprisonment for not less than 10 days. The court must also, as |
| 43 | a condition of probation, order the impoundment or |
| 44 | immobilization of all vehicles owned by the defendant at the |
| 45 | time of impoundment or immobilization, for a period of 30 days |
| 46 | or for the unexpired term of any lease or rental agreement that |
| 47 | expires within 30 days. The impoundment or immobilization must |
| 48 | not occur concurrently with the incarceration of the defendant |
| 49 | and must occur concurrently with the driver's license revocation |
| 50 | imposed under s. 322.28(2)(a)2. The impoundment or |
| 51 | immobilization order may be dismissed in accordance with |
| 52 | paragraph (e), paragraph (f), paragraph (g), or paragraph (h). |
| 53 | At least 48 hours of confinement must be consecutive. |
| 54 | (c) For the third or subsequent conviction for an offense |
| 55 | that occurs within a period of 10 years after the date of a |
| 56 | prior conviction for violation of this section, the court shall |
| 57 | order imprisonment for not less than 30 days. The court must |
| 58 | also, as a condition of probation, order the impoundment or |
| 59 | immobilization of all vehicles owned by the defendant at the |
| 60 | time of impoundment or immobilization, for a period of 90 days |
| 61 | or for the unexpired term of any lease or rental agreement that |
| 62 | expires within 90 days. The impoundment or immobilization must |
| 63 | not occur concurrently with the incarceration of the defendant |
| 64 | and must occur concurrently with the driver's license revocation |
| 65 | imposed under s. 322.28(2)(a)3. The impoundment or |
| 66 | immobilization order may be dismissed in accordance with |
| 67 | paragraph (e), paragraph (f), paragraph (g), or paragraph (h). |
| 68 | At least 48 hours of confinement must be consecutive. |
| 69 | (d) The court must at the time of sentencing the defendant |
| 70 | issue an order for the impoundment or immobilization of a |
| 71 | vehicle. Within 7 business days after the date that the court |
| 72 | issues the order of impoundment or immobilization, the clerk of |
| 73 | the court must send notice by certified mail, return receipt |
| 74 | requested, to the registered owner of each vehicle, if the |
| 75 | registered owner is a person other than the defendant, and to |
| 76 | each person of record claiming a lien against the vehicle. |
| 77 | (e) A person who owns but was not operating the vehicle |
| 78 | when the offense occurred may submit to the court a police |
| 79 | report indicating that the vehicle was stolen at the time of the |
| 80 | offense or documentation of having purchased the vehicle after |
| 81 | the offense was committed from an entity other than the |
| 82 | defendant or the defendant's agent. If the court finds that the |
| 83 | vehicle was stolen or that the sale was not made to circumvent |
| 84 | the order and allow the defendant continued access to the |
| 85 | vehicle, the order must be dismissed and the owner of the |
| 86 | vehicle will incur no costs. If the court denies the request to |
| 87 | dismiss the order of impoundment or immobilization, the |
| 88 | petitioner may request an evidentiary hearing. |
| 89 | (f) A person who owns but was not operating the vehicle |
| 90 | when the offense occurred, and whose vehicle was stolen or who |
| 91 | purchased the vehicle after the offense was committed directly |
| 92 | from the defendant or the defendant's agent, may request an |
| 93 | evidentiary hearing to determine whether the impoundment or |
| 94 | immobilization should occur. If the court finds that either the |
| 95 | vehicle was stolen or the purchase was made without knowledge of |
| 96 | the offense, that the purchaser had no relationship to the |
| 97 | defendant other than through the transaction, and that such |
| 98 | purchase would not circumvent the order and allow the defendant |
| 99 | continued access to the vehicle, the order must be dismissed and |
| 100 | the owner of the vehicle will incur no costs. |
| 101 | (g) The court shall also dismiss the order of impoundment |
| 102 | or immobilization of the vehicle if the court finds that the |
| 103 | family of the owner of the vehicle has no other private or |
| 104 | public means of transportation. |
| 105 | (h) The court may also dismiss the order of impoundment or |
| 106 | immobilization of any vehicles that are owned by the defendant |
| 107 | but that are operated solely by the employees of the defendant |
| 108 | or any business owned by the defendant. |
| 109 | (i) All costs and fees for the impoundment or |
| 110 | immobilization, including the cost of notification, must be paid |
| 111 | by the owner of the vehicle or, if the vehicle is leased or |
| 112 | rented, by the person leasing or renting the vehicle, unless the |
| 113 | impoundment or immobilization order is dismissed. All provisions |
| 114 | of s. 713.78 shall apply. |
| 115 | (j) The person who owns a vehicle that is impounded or |
| 116 | immobilized under this paragraph, or a person who has a lien of |
| 117 | record against such a vehicle and who has not requested a review |
| 118 | of the impoundment pursuant to paragraph (e), paragraph (f), or |
| 119 | paragraph (g), may, within 10 days after the date that person |
| 120 | has knowledge of the location of the vehicle, file a complaint |
| 121 | in the county in which the owner resides to determine whether |
| 122 | the vehicle was wrongfully taken or withheld from the owner or |
| 123 | lienholder. Upon the filing of a complaint, the owner or |
| 124 | lienholder may have the vehicle released by posting with the |
| 125 | court a bond or other adequate security equal to the amount of |
| 126 | the costs and fees for impoundment or immobilization, including |
| 127 | towing or storage, to ensure the payment of such costs and fees |
| 128 | if the owner or lienholder does not prevail. When the bond is |
| 129 | posted and the fee is paid as set forth in s. 28.24, the clerk |
| 130 | of the court shall issue a certificate releasing the vehicle. At |
| 131 | the time of release, after reasonable inspection, the owner or |
| 132 | lienholder must give a receipt to the towing or storage company |
| 133 | indicating any loss or damage to the vehicle or to the contents |
| 134 | of the vehicle. |
| 135 | (k) A defendant, in the court's discretion, may be |
| 136 | required to serve all or any portion of a term of imprisonment |
| 137 | to which the defendant has been sentenced pursuant to this |
| 138 | section in a residential alcoholism treatment program or a |
| 139 | residential drug abuse treatment program. Any time spent in such |
| 140 | a program must be credited by the court toward the term of |
| 141 | imprisonment. |
| 142 |
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| 143 | For the purposes of this section, any conviction for a violation |
| 144 | of s. 327.35; a previous conviction for the violation of former |
| 145 | s. 316.1931, former s. 860.01, or former s. 316.028; or a |
| 146 | previous conviction outside this state for driving under the |
| 147 | influence, driving while intoxicated, driving with an unlawful |
| 148 | blood-alcohol level, driving with an unlawful breath-alcohol |
| 149 | level, or any other similar alcohol-related or drug-related |
| 150 | traffic offense, is also considered a previous conviction for |
| 151 | violation of this section. If records of the department show |
| 152 | that a person has been previously convicted of any violation of |
| 153 | this section, such records may be used as evidence to establish |
| 154 | such previous convictions. However, such evidence may be |
| 155 | contradicted or rebutted by other evidence. Such evidence may be |
| 156 | considered, together with any other evidence presented, in |
| 157 | deciding if such person has been previously convicted of a |
| 158 | violation of this section. However, in satisfaction of the fine |
| 159 | imposed pursuant to this section, the court may, upon a finding |
| 160 | that the defendant is financially unable to pay either all or |
| 161 | part of the fine, order that the defendant participate for a |
| 162 | specified additional period of time in public service or a |
| 163 | community work project in lieu of payment of that portion of the |
| 164 | fine which the court determines the defendant is unable to pay. |
| 165 | In determining such additional sentence, the court shall |
| 166 | consider the amount of the unpaid portion of the fine and the |
| 167 | reasonable value of the services to be ordered; however, the |
| 168 | court may not compute the reasonable value of services at a rate |
| 169 | less than the federal minimum wage at the time of sentencing. |
| 170 | Section 2. This act shall take effect upon becoming a law. |