Amendment

Bill No. 0307

Amendment No. 439923

CHAMBER ACTION
Senate		House
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1	Representative Planas offered the following:
2
3	Amendment (with title amendment)
4	Remove lines 85-572 and insert:
5	qualifies for a permanent or restricted license. The
6	installation of such device may not occur before July 1, 2003.
7	(b)1.  Any person who is convicted of a third violation of
8	this section for an offense that occurs within 10 years after a
9	prior conviction for a violation of this section commits a
10	felony of the third degree, punishable as provided in s.
11	775.082, s. 775.083, or s. 775.084. In addition, the court shall
12	order the mandatory placement for a period of not less than 2
13	years, at the convicted person's sole expense, of an ignition
14	interlock device approved by the department in accordance with
15	s. 316.1938 upon all vehicles that are individually or jointly
16	leased or owned and routinely operated by the convicted person,
17	when the convicted person qualifies for a permanent or
18	restricted license. The installation of such device may not
19	occur before July 1, 2003.
20	2.  Any person who is convicted of a third violation of
21	this section for an offense that occurs more than 10 years after
22	the date of a prior conviction for a violation of this section
23	shall be punished by a fine of not less than $1,000 or more than
24	$2,500 and by imprisonment for not more than 12 months. In
25	addition, the court shall order the mandatory placement for a
26	period of not less than at least 2 years, at the convicted
27	person's sole expense, of an ignition interlock device approved
28	by the department in accordance with s. 316.1938 upon all
29	vehicles that are individually or jointly leased or owned and
30	routinely operated by the convicted person, when the convicted
31	person qualifies for a permanent or restricted license. The
32	installation of such device may not occur before July 1, 2003.
33	3.  Any person who is convicted of a fourth or subsequent
34	violation of this section, regardless of when any prior
35	conviction for a violation of this section occurred, commits a
36	felony of the third degree, punishable as provided in s.
37	775.082, s. 775.083, or s. 775.084. However, the fine imposed
38	for such fourth or subsequent violation may be not less than
39	$1,000.
40	(3)  Any person:
41	(a)  Who is in violation of subsection (1);
42	(b)  Who operates a vehicle; and
43	(c)  Who, by reason of such operation, causes or
44	contributes to causing:
45	1.  Damage to the property or person of another commits a
46	misdemeanor of the first degree, punishable as provided in s.
47	775.082 or s. 775.083.
48	2.  Serious bodily injury to another, as defined in s.
49	316.1933, commits a felony of the third degree, punishable as
50	provided in s. 775.082, s. 775.083, or s. 775.084.
51	3.  The death of any human being commits DUI manslaughter,
52	and commits:
53	a.  A felony of the second degree, punishable as provided
54	in s. 775.082, s. 775.083, or s. 775.084.
55	b.  A felony of the first degree, punishable as provided in
56	s. 775.082, s. 775.083, or s. 775.084, if:
57	(I)  At the time of the crash, the person knew, or should
58	have known, that the crash occurred; and
59	(II)  The person failed to give information and render aid
60	as required by s. 316.062.
61	(4)(a)  Any person who is convicted of a violation of
62	subsection (1) and who has a blood-alcohol level or breath-
63	alcohol level of 0.16 0.20 or higher, or any person who is
64	convicted of a violation of subsection (1) and who at the time
65	of the offense was accompanied in the vehicle by a person under
66	the age of 18 years, shall be punished:
67	1.(a)  By a fine of:
68	a.1.  Not less than $500 or more than $1,000 for a first
69	conviction.
70	b.2.  Not less than $1,000 or more than $2,000 for a second
71	conviction.
72	c.3.  Not less than $2,000 for a third or subsequent
73	conviction.
74	2.(b)  By imprisonment for:
75	a.1.  Not more than 9 months for a first conviction.
76	b.2.  Not more than 12 months for a second conviction.
77
78	For the purposes of this subsection, only the instant offense is
79	required to be a violation of subsection (1) by a person who has
80	a blood-alcohol level or breath-alcohol level of 0.20 or higher.
81	(b)(c)  In addition to the penalties in paragraph
82	paragraphs (a) and (b), the court shall order the mandatory
83	placement, at the convicted person's sole expense, of an
84	ignition interlock device approved by the department in
85	accordance with s. 316.1938 upon all vehicles that are
86	individually or jointly leased or owned and routinely operated
87	by the convicted person for up to 6 months for the first offense
88	and for not less than at least 2 years for a second offense,
89	when the convicted person qualifies for a permanent or
90	restricted license. The installation of such device may not
91	occur before July 1, 2003.
92
93	For the purposes of this subsection, only the instant offense is
94	required to be a violation of subsection (1) by a person who has
95	a blood-alcohol level or breath-alcohol level of 0.16 or higher.
96	(5)  The court shall place all offenders convicted of
97	violating this section on monthly reporting probation and shall
98	require completion of a substance abuse course conducted by a
99	DUI program licensed by the department under s. 322.292, which
100	must include a psychosocial evaluation of the offender. If the
101	DUI program refers the offender to an authorized substance abuse
102	treatment provider for substance abuse treatment, in addition to
103	any sentence or fine imposed under this section, completion of
104	all such education, evaluation, and treatment is a condition of
105	reporting probation. The offender shall assume reasonable costs
106	for such education, evaluation, and treatment. The referral to
107	treatment resulting from a psychosocial evaluation shall not be
108	waived without a supporting independent psychosocial evaluation
109	conducted by an authorized substance abuse treatment provider
110	appointed by the court, which shall have access to the DUI
111	program's psychosocial evaluation before the independent
112	psychosocial evaluation is conducted. The court shall review the
113	results and recommendations of both evaluations before
114	determining the request for waiver. The offender shall bear the
115	full cost of this procedure. The term "substance abuse" means
116	the abuse of alcohol or any substance named or described in
117	Schedules I through V of s. 893.03. If an offender referred to
118	treatment under this subsection fails to report for or complete
119	such treatment or fails to complete the DUI program substance
120	abuse education course and evaluation, the DUI program shall
121	notify the court and the department of the failure. Upon receipt
122	of the notice, the department shall cancel the offender's
123	driving privilege, notwithstanding the terms of the court order
124	or any suspension or revocation of the driving privilege. The
125	department may temporarily reinstate the driving privilege on a
126	restricted basis upon verification from the DUI program that the
127	offender is currently participating in treatment and the DUI
128	education course and evaluation requirement has been completed.
129	If the DUI program notifies the department of the second failure
130	to complete treatment, the department shall reinstate the
131	driving privilege only after notice of completion of treatment
132	from the DUI program. The organization that conducts the
133	substance abuse education and evaluation may not provide
134	required substance abuse treatment unless a waiver has been
135	granted to that organization by the department. A waiver may be
136	granted only if the department determines, in accordance with
137	its rules, that the service provider that conducts the substance
138	abuse education and evaluation is the most appropriate service
139	provider and is licensed under chapter 397 or is exempt from
140	such licensure. A statistical referral report shall be submitted
141	quarterly to the department by each organization authorized to
142	provide services under this section.
143	(6)  With respect to any person convicted of a violation of
144	subsection (1), regardless of any penalty imposed pursuant to
145	subsection (2), subsection (3), or subsection (4):
146	(a)  For the first conviction, the court shall place the
147	defendant on probation for a period not to exceed 1 year and, as
148	a condition of such probation, shall order the defendant to
149	participate in public service or a community work project for a
150	minimum of 50 hours; or the court may order instead, that any
151	defendant pay an additional fine of $10 for each hour of public
152	service or community work otherwise required, if, after
153	consideration of the residence or location of the defendant at
154	the time public service or community work is required, payment
155	of the fine is in the best interests of the state. However, the
156	total period of probation and incarceration may not exceed 1
157	year. The court must also, as a condition of probation, order
158	the impoundment or immobilization of the vehicle that was
159	operated by or in the actual control of the defendant or any one
160	vehicle registered in the defendant's name at the time of
161	impoundment or immobilization, for a period of 10 days or for
162	the unexpired term of any lease or rental agreement that expires
163	within 10 days. The impoundment or immobilization must not occur
164	concurrently with the incarceration of the defendant. The
165	impoundment or immobilization order may be dismissed in
166	accordance with paragraph (e), paragraph (f), paragraph (g), or
167	paragraph (h).
168	(b)  For the second conviction for an offense that occurs
169	within a period of 5 years after the date of a prior conviction
170	for violation of this section, the court shall order
171	imprisonment for not less than 10 days. The court must also, as
172	a condition of probation, order the impoundment or
173	immobilization of all vehicles owned by the defendant at the
174	time of impoundment or immobilization, for a period of 30 days
175	or for the unexpired term of any lease or rental agreement that
176	expires within 30 days. The impoundment or immobilization must
177	not occur concurrently with the incarceration of the defendant
178	and must occur concurrently with the driver's license revocation
179	imposed under s. 322.28(2)(a)2. The impoundment or
180	immobilization order may be dismissed in accordance with
181	paragraph (e), paragraph (f), paragraph (g), or paragraph (h).
182	At least 48 hours of confinement must be consecutive.
183	(c)  For the third or subsequent conviction for an offense
184	that occurs within a period of 10 years after the date of a
185	prior conviction for violation of this section, the court shall
186	order imprisonment for not less than 30 days. The court must
187	also, as a condition of probation, order the impoundment or
188	immobilization of all vehicles owned by the defendant at the
189	time of impoundment or immobilization, for a period of 90 days
190	or for the unexpired term of any lease or rental agreement that
191	expires within 90 days. The impoundment or immobilization must
192	not occur concurrently with the incarceration of the defendant
193	and must occur concurrently with the driver's license revocation
194	imposed under s. 322.28(2)(a)3. The impoundment or
195	immobilization order may be dismissed in accordance with
196	paragraph (e), paragraph (f), paragraph (g), or paragraph (h).
197	At least 48 hours of confinement must be consecutive.
198	(d)  The court must at the time of sentencing the defendant
199	issue an order for the impoundment or immobilization of a
200	vehicle. Within 7 business days after the date that the court
201	issues the order of impoundment or immobilization, the clerk of
202	the court must send notice by certified mail, return receipt
203	requested, to the registered owner of each vehicle, if the
204	registered owner is a person other than the defendant, and to
205	each person of record claiming a lien against the vehicle.
206	(e)  A person who owns but was not operating the vehicle
207	when the offense occurred may submit to the court a police
208	report indicating that the vehicle was stolen at the time of the
209	offense or documentation of having purchased the vehicle after
210	the offense was committed from an entity other than the
211	defendant or the defendant's agent. If the court finds that the
212	vehicle was stolen or that the sale was not made to circumvent
213	the order and allow the defendant continued access to the
214	vehicle, the order must be dismissed and the owner of the
215	vehicle will incur no costs. If the court denies the request to
216	dismiss the order of impoundment or immobilization, the
217	petitioner may request an evidentiary hearing.
218	(f)  A person who owns but was not operating the vehicle
219	when the offense occurred, and whose vehicle was stolen or who
220	purchased the vehicle after the offense was committed directly
221	from the defendant or the defendant's agent, may request an
222	evidentiary hearing to determine whether the impoundment or
223	immobilization should occur. If the court finds that either the
224	vehicle was stolen or the purchase was made without knowledge of
225	the offense, that the purchaser had no relationship to the
226	defendant other than through the transaction, and that such
227	purchase would not circumvent the order and allow the defendant
228	continued access to the vehicle, the order must be dismissed and
229	the owner of the vehicle will incur no costs.
230	(g)  The court shall also dismiss the order of impoundment
231	or immobilization of the vehicle if the court finds that the
232	family of the owner of the vehicle has no other private or
233	public means of transportation.
234	(h)  The court may also dismiss the order of impoundment or
235	immobilization of any vehicles that are owned by the defendant
236	but that are operated solely by the employees of the defendant
237	or any business owned by the defendant.
238	(i)  All costs and fees for the impoundment or
239	immobilization, including the cost of notification, must be paid
240	by the owner of the vehicle or, if the vehicle is leased or
241	rented, by the person leasing or renting the vehicle, unless the
242	impoundment or immobilization order is dismissed. All provisions
243	of s. 713.78 shall apply.
244	(j)  The person who owns a vehicle that is impounded or
245	immobilized under this paragraph, or a person who has a lien of
246	record against such a vehicle and who has not requested a review
247	of the impoundment pursuant to paragraph (e), paragraph (f), or
248	paragraph (g), may, within 10 days after the date that person
249	has knowledge of the location of the vehicle, file a complaint
250	in the county in which the owner resides to determine whether
251	the vehicle was wrongfully taken or withheld from the owner or
252	lienholder. Upon the filing of a complaint, the owner or
253	lienholder may have the vehicle released by posting with the
254	court a bond or other adequate security equal to the amount of
255	the costs and fees for impoundment or immobilization, including
256	towing or storage, to ensure the payment of such costs and fees
257	if the owner or lienholder does not prevail. When the bond is
258	posted and the fee is paid as set forth in s. 28.24, the clerk
259	of the court shall issue a certificate releasing the vehicle. At
260	the time of release, after reasonable inspection, the owner or
261	lienholder must give a receipt to the towing or storage company
262	indicating any loss or damage to the vehicle or to the contents
263	of the vehicle.
264	(k)  A defendant, in the court's discretion, may be
265	required to serve all or any portion of a term of imprisonment
266	to which the defendant has been sentenced pursuant to this
267	section in a residential alcoholism treatment program or a
268	residential drug abuse treatment program. Any time spent in such
269	a program must be credited by the court toward the term of
270	imprisonment.
271
272	For the purposes of this section, any conviction for a violation
273	of s. 327.35; a previous conviction for the violation of former
274	s. 316.1931, former s. 860.01, or former s. 316.028; or a
275	previous conviction outside this state for driving under the
276	influence, driving while intoxicated, driving with an unlawful
277	blood-alcohol level, driving with an unlawful breath-alcohol
278	level, or any other similar alcohol-related or drug-related
279	traffic offense, is also considered a previous conviction for
280	violation of this section. However, in satisfaction of the fine
281	imposed pursuant to this section, the court may, upon a finding
282	that the defendant is financially unable to pay either all or
283	part of the fine, order that the defendant participate for a
284	specified additional period of time in public service or a
285	community work project in lieu of payment of that portion of the
286	fine which the court determines the defendant is unable to pay.
287	In determining such additional sentence, the court shall
288	consider the amount of the unpaid portion of the fine and the
289	reasonable value of the services to be ordered; however, the
290	court may not compute the reasonable value of services at a rate
291	less than the federal minimum wage at the time of sentencing.
292	(7)  A conviction under this section does not bar any civil
293	suit for damages against the person so convicted.
294	(8)  At the arraignment, or in conjunction with any notice
295	of arraignment provided by the clerk of the court, the clerk
296	shall provide any person charged with a violation of this
297	section with notice that upon conviction the court shall suspend
298	or revoke the offender's driver's license and that the offender
299	should make arrangements for transportation at any proceeding in
300	which the court may take such action. Failure to provide such
301	notice does not affect the court's suspension or revocation of
302	the offender's driver's license.
303	(9)  A person who is arrested for a violation of this
304	section may not be released from custody:
305	(a)  Until the person is no longer under the influence of
306	alcoholic beverages, any chemical substance set forth in s.
307	877.111, or any substance controlled under chapter 893 and
308	affected to the extent that his or her normal faculties are
309	impaired;
310	(b)  Until the person's blood-alcohol level or breath-
311	alcohol level is less than 0.05; or
312	(c)  Until 8 hours have elapsed from the time the person
313	was arrested.
314	(10)  The rulings of the Department of Highway Safety and
315	Motor Vehicles under s. 322.2615 shall not be considered in any
316	trial for a violation of this section. Testimony or evidence
317	from the administrative proceedings or any written statement
318	submitted by a person in his or her request for administrative
319	review is inadmissible into evidence or for any other purpose in
320	any criminal proceeding, unless timely disclosed in criminal
321	discovery pursuant to Rule 3.220, Florida Rules of Criminal
322	Procedure.
323	(11)  The Department of Highway Safety and Motor Vehicles
324	is directed to adopt rules providing for the implementation of
325	the use of ignition interlock devices.
326	Section 2.  Subsection (2) of section 316.656, Florida
327	Statutes, is amended to read:
328	316.656  Mandatory adjudication; prohibition against
329	accepting plea to lesser included offense.--
330	(1)  Notwithstanding the provisions of s. 948.01, no court
331	may suspend, defer, or withhold adjudication of guilt or
332	imposition of sentence for any violation of s. 316.193, for
333	manslaughter resulting from the operation of a motor vehicle, or
334	for vehicular homicide.
335	(2)(a)  No trial judge may accept a plea of guilty to a
336	lesser offense from a person charged under the provisions of
337	this act who has been given a breath or blood test to determine
338	blood or breath alcohol content, the results of which show a
339	blood or breath alcohol content by weight of 0.16 0.20 percent
340	or more.
341	(b)  No trial judge may accept a plea of guilty to a lesser
342	offense from a person charged with a violation of s. 316.193(3),
343	manslaughter resulting from the operation of a motor vehicle, or
344	vehicular homicide.
345
346
347	================ T I T L E  A M E N D M E N T =============
348	Remove lines 8-23 and insert:
349	amending s. 316.193, F.S.; revising level of alcohol content in
350	blood or breath at which certain penalties shall apply for the
351	offense of driving under the influence; amending s. 316.656,
352	F.S.; revising level of alcohol content in blood or breath at
353	which the prohibition against accepting plea to lesser offense
354	shall apply; creating s.

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