Senate Bill sb2762

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 2762

    By Senator Smith





    14-1756-04                                              See HB

  1                      A bill to be entitled

  2         An act relating to driving under the influence;

  3         amending s. 316.193, F.S.; providing for using

  4         certain records of the Department of Highway

  5         Safety and Motor Vehicles as evidence

  6         establishing existence of certain previous

  7         violations; providing for rebutting or

  8         contradicting of such evidence; providing an

  9         effective date.

10  

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

12  

13         Section 1.  Subsection (6) of section 316.193, Florida

14  Statutes, is amended to read:

15         316.193  Driving under the influence; penalties.--

16         (6)  With respect to any person convicted of a

17  violation of subsection (1), regardless of any penalty imposed

18  pursuant to subsection (2), subsection (3), or subsection (4):

19         (a)  For the first conviction, the court shall place

20  the defendant on probation for a period not to exceed 1 year

21  and, as a condition of such probation, shall order the

22  defendant to participate in public service or a community work

23  project for a minimum of 50 hours; or the court may order

24  instead, that any defendant pay an additional fine of $10 for

25  each hour of public service or community work otherwise

26  required, if, after consideration of the residence or location

27  of the defendant at the time public service or community work

28  is required, payment of the fine is in the best interests of

29  the state. However, the total period of probation and

30  incarceration may not exceed 1 year. The court must also, as a

31  condition of probation, order the impoundment or

                                  1

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






    Florida Senate - 2004                                  SB 2762
    14-1756-04                                              See HB




 1  immobilization of the vehicle that was operated by or in the

 2  actual control of the defendant or any one vehicle registered

 3  in the defendant's name at the time of impoundment or

 4  immobilization, for a period of 10 days or for the unexpired

 5  term of any lease or rental agreement that expires within 10

 6  days. The impoundment or immobilization must not occur

 7  concurrently with the incarceration of the defendant. The

 8  impoundment or immobilization order may be dismissed in

 9  accordance with paragraph (e), paragraph (f), paragraph (g),

10  or paragraph (h).

11         (b)  For the second conviction for an offense that

12  occurs within a period of 5 years after the date of a prior

13  conviction for violation of this section, the court shall

14  order imprisonment for not less than 10 days. The court must

15  also, as a condition of probation, order the impoundment or

16  immobilization of all vehicles owned by the defendant at the

17  time of impoundment or immobilization, for a period of 30 days

18  or for the unexpired term of any lease or rental agreement

19  that expires within 30 days. The impoundment or immobilization

20  must not occur concurrently with the incarceration of the

21  defendant and must occur concurrently with the driver's

22  license revocation imposed under s. 322.28(2)(a)2. The

23  impoundment or immobilization order may be dismissed in

24  accordance with paragraph (e), paragraph (f), paragraph (g),

25  or paragraph (h). At least 48 hours of confinement must be

26  consecutive.

27         (c)  For the third or subsequent conviction for an

28  offense that occurs within a period of 10 years after the date

29  of a prior conviction for violation of this section, the court

30  shall order imprisonment for not less than 30 days. The court

31  must also, as a condition of probation, order the impoundment

                                  2

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






    Florida Senate - 2004                                  SB 2762
    14-1756-04                                              See HB




 1  or immobilization of all vehicles owned by the defendant at

 2  the time of impoundment or immobilization, for a period of 90

 3  days or for the unexpired term of any lease or rental

 4  agreement that expires within 90 days. The impoundment or

 5  immobilization must not occur concurrently with the

 6  incarceration of the defendant and must occur concurrently

 7  with the driver's license revocation imposed under s.

 8  322.28(2)(a)3. The impoundment or immobilization order may be

 9  dismissed in accordance with paragraph (e), paragraph (f),

10  paragraph (g), or paragraph (h). At least 48 hours of

11  confinement must be consecutive.

12         (d)  The court must at the time of sentencing the

13  defendant issue an order for the impoundment or immobilization

14  of a vehicle. Within 7 business days after the date that the

15  court issues the order of impoundment or immobilization, the

16  clerk of the court must send notice by certified mail, return

17  receipt requested, to the registered owner of each vehicle, if

18  the registered owner is a person other than the defendant, and

19  to each person of record claiming a lien against the vehicle.

20         (e)  A person who owns but was not operating the

21  vehicle when the offense occurred may submit to the court a

22  police report indicating that the vehicle was stolen at the

23  time of the offense or documentation of having purchased the

24  vehicle after the offense was committed from an entity other

25  than the defendant or the defendant's agent. If the court

26  finds that the vehicle was stolen or that the sale was not

27  made to circumvent the order and allow the defendant continued

28  access to the vehicle, the order must be dismissed and the

29  owner of the vehicle will incur no costs. If the court denies

30  the request to dismiss the order of impoundment or

31  

                                  3

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






    Florida Senate - 2004                                  SB 2762
    14-1756-04                                              See HB




 1  immobilization, the petitioner may request an evidentiary

 2  hearing.

 3         (f)  A person who owns but was not operating the

 4  vehicle when the offense occurred, and whose vehicle was

 5  stolen or who purchased the vehicle after the offense was

 6  committed directly from the defendant or the defendant's

 7  agent, may request an evidentiary hearing to determine whether

 8  the impoundment or immobilization should occur. If the court

 9  finds that either the vehicle was stolen or the purchase was

10  made without knowledge of the offense, that the purchaser had

11  no relationship to the defendant other than through the

12  transaction, and that such purchase would not circumvent the

13  order and allow the defendant continued access to the vehicle,

14  the order must be dismissed and the owner of the vehicle will

15  incur no costs.

16         (g)  The court shall also dismiss the order of

17  impoundment or immobilization of the vehicle if the court

18  finds that the family of the owner of the vehicle has no other

19  private or public means of transportation.

20         (h)  The court may also dismiss the order of

21  impoundment or immobilization of any vehicles that are owned

22  by the defendant but that are operated solely by the employees

23  of the defendant or any business owned by the defendant.

24         (i)  All costs and fees for the impoundment or

25  immobilization, including the cost of notification, must be

26  paid by the owner of the vehicle or, if the vehicle is leased

27  or rented, by the person leasing or renting the vehicle,

28  unless the impoundment or immobilization order is dismissed.

29  All provisions of s. 713.78 shall apply.

30         (j)  The person who owns a vehicle that is impounded or

31  immobilized under this paragraph, or a person who has a lien

                                  4

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






    Florida Senate - 2004                                  SB 2762
    14-1756-04                                              See HB




 1  of record against such a vehicle and who has not requested a

 2  review of the impoundment pursuant to paragraph (e), paragraph

 3  (f), or paragraph (g), may, within 10 days after the date that

 4  person has knowledge of the location of the vehicle, file a

 5  complaint in the county in which the owner resides to

 6  determine whether the vehicle was wrongfully taken or withheld

 7  from the owner or lienholder. Upon the filing of a complaint,

 8  the owner or lienholder may have the vehicle released by

 9  posting with the court a bond or other adequate security equal

10  to the amount of the costs and fees for impoundment or

11  immobilization, including towing or storage, to ensure the

12  payment of such costs and fees if the owner or lienholder does

13  not prevail. When the bond is posted and the fee is paid as

14  set forth in s. 28.24, the clerk of the court shall issue a

15  certificate releasing the vehicle. At the time of release,

16  after reasonable inspection, the owner or lienholder must give

17  a receipt to the towing or storage company indicating any loss

18  or damage to the vehicle or to the contents of the vehicle.

19         (k)  A defendant, in the court's discretion, may be

20  required to serve all or any portion of a term of imprisonment

21  to which the defendant has been sentenced pursuant to this

22  section in a residential alcoholism treatment program or a

23  residential drug abuse treatment program. Any time spent in

24  such a program must be credited by the court toward the term

25  of imprisonment.

26  

27  For the purposes of this section, any conviction for a

28  violation of s. 327.35; a previous conviction for the

29  violation of former s. 316.1931, former s. 860.01, or former

30  s. 316.028; or a previous conviction outside this state for

31  driving under the influence, driving while intoxicated,

                                  5

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






    Florida Senate - 2004                                  SB 2762
    14-1756-04                                              See HB




 1  driving with an unlawful blood-alcohol level, driving with an

 2  unlawful breath-alcohol level, or any other similar

 3  alcohol-related or drug-related traffic offense, is also

 4  considered a previous conviction for violation of this

 5  section. If records of the department show that a person has

 6  been previously convicted of any violation of this section,

 7  such records may be used as evidence to establish such

 8  previous convictions. However, such evidence may be

 9  contradicted or rebutted by other evidence. Such evidence may

10  be considered, together with any other evidence presented, in

11  deciding if such person has been previously convicted of a

12  violation of this section. However, in satisfaction of the

13  fine imposed pursuant to this section, the court may, upon a

14  finding that the defendant is financially unable to pay either

15  all or part of the fine, order that the defendant participate

16  for a specified additional period of time in public service or

17  a community work project in lieu of payment of that portion of

18  the fine which the court determines the defendant is unable to

19  pay. In determining such additional sentence, the court shall

20  consider the amount of the unpaid portion of the fine and the

21  reasonable value of the services to be ordered; however, the

22  court may not compute the reasonable value of services at a

23  rate less than the federal minimum wage at the time of

24  sentencing.

25         Section 2.  This act shall take effect upon becoming a

26  law.

27  

28  

29  

30  

31  

                                  6

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