1 | Representative Porth offered the following: |
2 |
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3 | Amendment |
4 | Remove lines 309-571 and insert: |
5 | required inspection of such instrument. |
6 |
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7 | Full information does not include manuals, schematics, or |
8 | software of the instrument used to test the person or any other |
9 | material that is not in the actual possession of the state. |
10 | Additionally, full information does not include information in |
11 | the possession of the manufacturer of the test instrument. |
12 | 5. A hospital, clinical laboratory, medical clinic, or |
13 | similar medical institution or physician, certified paramedic, |
14 | registered nurse, licensed practical nurse, other personnel |
15 | authorized by a hospital to draw blood, or duly licensed |
16 | clinical laboratory director, supervisor, technologist, or |
17 | technician, or other person assisting a law enforcement officer |
18 | does not incur any civil or criminal liability as a result of |
19 | the withdrawal or analysis of a blood or urine specimen, or the |
20 | chemical or physical test of a person's breath pursuant to |
21 | accepted medical standards when requested by a law enforcement |
22 | officer, regardless of whether or not the subject resisted |
23 | administration of the test. |
24 | Section 2. Section 316.1939, Florida Statutes, is amended |
25 | to read: |
26 | 316.1939 Refusal to submit to testing; penalties.-- |
27 | (1) Any person who has refused to submit to a chemical or |
28 | physical test of his or her breath, blood, or urine, as |
29 | described in s. 316.1932, and whose driving privilege was |
30 | previously suspended for a prior refusal to submit to a lawful |
31 | test of his or her breath, urine, or blood, and: |
32 | (a) Who the arresting law enforcement officer had probable |
33 | cause to believe was driving or in actual physical control of a |
34 | motor vehicle in this state while under the influence of |
35 | alcoholic beverages, chemical substances, or controlled |
36 | substances; |
37 | (b) Who was placed under lawful arrest for a violation of |
38 | s. 316.193 unless such test was requested pursuant to s. |
39 | 316.1932(1)(c); |
40 | (c) Who was informed that, if he or she refused to submit |
41 | to such test, his or her privilege to operate a motor vehicle |
42 | would be suspended for a period of 1 year or, in the case of a |
43 | second or subsequent refusal, for a period of 18 months; |
44 | (d) Who was informed that a refusal to submit to a lawful |
45 | test of his or her breath, urine, or blood, if his or her |
46 | driving privilege has been previously suspended for a prior |
47 | refusal to submit to a lawful test of his or her breath, urine, |
48 | or blood, is a misdemeanor; and |
49 | (e) Who, after having been so informed, refused to submit |
50 | to any such test when requested to do so by a law enforcement |
51 | officer or correctional officer, |
52 |
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53 | commits the offense of refusal to submit to testing. If such |
54 | person's driving privilege was previously suspended for a prior |
55 | refusal to submit to a lawful test of his or her breath, urine, |
56 | or blood, such offense is a misdemeanor of the first degree, |
57 | punishable and is subject to punishment as provided in s. |
58 | 775.082 or s. 775.083. If such person's driving privilege was |
59 | not previously suspended for a prior refusal to submit to a |
60 | lawful test of his or her breath, urine, or blood, such offense |
61 | shall be punished by imprisonment for not more than 6 months and |
62 | by a fine of up to $500. |
63 | (2) The disposition of any administrative proceeding that |
64 | relates to the suspension of a person's driving privilege does |
65 | not affect a criminal action under this section. |
66 | (3) The disposition of a criminal action under this |
67 | section does not affect any administrative proceeding that |
68 | relates to the suspension of a person's driving privilege. The |
69 | department's records showing that a person's license has been |
70 | previously suspended for a prior refusal to submit to a lawful |
71 | test of his or her breath, urine, or blood shall be admissible |
72 | and shall create a rebuttable presumption of such suspension. |
73 | Section 3. Paragraphs (a), (c), and (e) of subsection (1) |
74 | of section 327.352, Florida Statutes, are amended to read: |
75 | 327.352 Tests for alcohol, chemical substances, or |
76 | controlled substances; implied consent; refusal.-- |
77 | (1)(a)1. The Legislature declares that the operation of a |
78 | vessel is a privilege that must be exercised in a reasonable |
79 | manner. In order to protect the public health and safety, it is |
80 | essential that a lawful and effective means of reducing the |
81 | incidence of boating while impaired or intoxicated be |
82 | established. Therefore, any person who accepts the privilege |
83 | extended by the laws of this state of operating a vessel within |
84 | this state is, by so operating such vessel, deemed to have given |
85 | his or her consent to submit to an approved chemical test or |
86 | physical test including, but not limited to, an infrared light |
87 | test of his or her breath for the purpose of determining the |
88 | alcoholic content of his or her blood or breath if the person is |
89 | lawfully arrested for any offense allegedly committed while the |
90 | person was operating a vessel while under the influence of |
91 | alcoholic beverages. The chemical or physical breath test must |
92 | be incidental to a lawful arrest and administered at the request |
93 | of a law enforcement officer who has reasonable cause to believe |
94 | such person was operating the vessel within this state while |
95 | under the influence of alcoholic beverages. The administration |
96 | of a breath test does not preclude the administration of another |
97 | type of test. The person shall be told that his or her failure |
98 | to submit to any lawful test of his or her breath will result in |
99 | a civil penalty of $500, and shall also be told that if he or |
100 | she refuses to submit to a lawful test of his or her breath and |
101 | he or she has been previously fined for refusal to submit to any |
102 | lawful test of his or her breath, urine, or blood, he or she |
103 | commits a misdemeanor in addition to any other penalties. The |
104 | refusal to submit to a chemical or physical breath test upon the |
105 | request of a law enforcement officer as provided in this section |
106 | is admissible into evidence in any criminal proceeding. |
107 | 2. Any person who accepts the privilege extended by the |
108 | laws of this state of operating a vessel within this state is, |
109 | by so operating such vessel, deemed to have given his or her |
110 | consent to submit to a urine test for the purpose of detecting |
111 | the presence of chemical substances as set forth in s. 877.111 |
112 | or controlled substances if the person is lawfully arrested for |
113 | any offense allegedly committed while the person was operating a |
114 | vessel while under the influence of chemical substances or |
115 | controlled substances. The urine test must be incidental to a |
116 | lawful arrest and administered at a detention facility or any |
117 | other facility, mobile or otherwise, which is equipped to |
118 | administer such tests at the request of a law enforcement |
119 | officer who has reasonable cause to believe such person was |
120 | operating a vessel within this state while under the influence |
121 | of chemical substances or controlled substances. The urine test |
122 | shall be administered at a detention facility or any other |
123 | facility, mobile or otherwise, which is equipped to administer |
124 | such test in a reasonable manner that will ensure the accuracy |
125 | of the specimen and maintain the privacy of the individual |
126 | involved. The administration of a urine test does not preclude |
127 | the administration of another type of test. The person shall be |
128 | told that his or her failure to submit to any lawful test of his |
129 | or her urine will result in a civil penalty of $500, and shall |
130 | also be told that if he or she refuses to submit to a lawful |
131 | test of his or her urine and he or she has been previously fined |
132 | for refusal to submit to any lawful test of his or her breath, |
133 | urine, or blood, he or she commits a misdemeanor in addition to |
134 | any other penalties. The refusal to submit to a urine test upon |
135 | the request of a law enforcement officer as provided in this |
136 | section is admissible into evidence in any criminal proceeding. |
137 | (c) Any person who accepts the privilege extended by the |
138 | laws of this state of operating a vessel within this state is, |
139 | by operating such vessel, deemed to have given his or her |
140 | consent to submit to an approved blood test for the purpose of |
141 | determining the alcoholic content of the blood or a blood test |
142 | for the purpose of determining the presence of chemical |
143 | substances or controlled substances as provided in this section |
144 | if there is reasonable cause to believe the person was operating |
145 | a vessel while under the influence of alcoholic beverages or |
146 | chemical or controlled substances and the person appears for |
147 | treatment at a hospital, clinic, or other medical facility and |
148 | the administration of a breath or urine test is impractical or |
149 | impossible. As used in this paragraph, the term "other medical |
150 | facility" includes an ambulance or other medical emergency |
151 | vehicle. The blood test shall be performed in a reasonable |
152 | manner. Any person who is incapable of refusal by reason of |
153 | unconsciousness or other mental or physical condition is deemed |
154 | not to have withdrawn his or her consent to such test. Any |
155 | person who is capable of refusal shall be told that his or her |
156 | failure to submit to such a blood test will result in a civil |
157 | penalty of $500 and that a refusal to submit to a lawful test of |
158 | his or her blood, if he or she has previously been fined for |
159 | refusal to submit to any lawful test of his or her breath, |
160 | urine, or blood, is a misdemeanor. The refusal to submit to a |
161 | blood test upon the request of a law enforcement officer shall |
162 | be admissible in evidence in any criminal proceeding. |
163 | (e)1. The tests determining the weight of alcohol in the |
164 | defendant's blood or breath shall be administered at the request |
165 | of a law enforcement officer substantially in accordance with |
166 | rules of the Department of Law Enforcement. However, the failure |
167 | of a law enforcement officer to request the withdrawal of blood |
168 | does not affect the admissibility of a test of blood withdrawn |
169 | for medical purposes. |
170 | 2. Only a physician, certified paramedic, registered |
171 | nurse, licensed practical nurse, other personnel authorized by a |
172 | hospital to draw blood, or duly licensed clinical laboratory |
173 | director, supervisor, technologist, or technician, acting at the |
174 | request of a law enforcement officer, may withdraw blood for the |
175 | purpose of determining its alcoholic content or the presence of |
176 | chemical substances or controlled substances therein. However, |
177 | the failure of a law enforcement officer to request the |
178 | withdrawal of blood does not affect the admissibility of a test |
179 | of blood withdrawn for medical purposes. |
180 | 3. The person tested may, at his or her own expense, have |
181 | a physician, registered nurse, other personnel authorized by a |
182 | hospital to draw blood, or duly licensed clinical laboratory |
183 | director, supervisor, technologist, or technician, or other |
184 | person of his or her own choosing administer an independent test |
185 | in addition to the test administered at the direction of the law |
186 | enforcement officer for the purpose of determining the amount of |
187 | alcohol in the person's blood or breath or the presence of |
188 | chemical substances or controlled substances at the time |
189 | alleged, as shown by chemical analysis of his or her blood or |
190 | urine, or by chemical or physical test of his or her breath. The |
191 | failure or inability to obtain an independent test by a person |
192 | does not preclude the admissibility in evidence of the test |
193 | taken at the direction of the law enforcement officer. The law |
194 | enforcement officer shall not interfere with the person's |
195 | opportunity to obtain the independent test and shall provide the |
196 | person with timely telephone access to secure the test, but the |
197 | burden is on the person to arrange and secure the test at the |
198 | person's own expense. |
199 | 4. Upon the request of the person tested, full information |
200 | concerning the results of the test taken at the direction of the |
201 | law enforcement officer shall be made available to the person or |
202 | his or her attorney. Full information is limited to the |
203 | following: |
204 | a. The type of test administered and the procedures |
205 | followed. |
206 | b. The time of the collection of the blood or breath |
207 | sample analyzed. |
208 | c. The numerical results of the test indicating the |
209 | alcohol content of the blood and breath. |
210 | d. The type and status of any permit issued by the |
211 | Department of Law Enforcement which was held by the person who |
212 | performed the test. |
213 | e. If the test was administered by means of a breath |
214 | testing instrument, the date of performance of the most recent |
215 | required inspection of such instrument. |
216 |
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217 | Full information does not include manuals, schematics, or |
218 | software of the instrument used to test the person or any other |
219 | material that is not in the actual possession of the state. |
220 | Additionally, full information does not include information in |
221 | the possession of the manufacturer of the test instrument. |
222 | 5. A hospital, clinical laboratory, medical clinic, or |
223 | similar medical institution or physician, certified paramedic, |
224 | registered nurse, licensed practical nurse, other personnel |
225 | authorized by a hospital to draw blood, or duly licensed |
226 | clinical laboratory director, supervisor, technologist, or |
227 | technician, or other person assisting a law enforcement officer |
228 | does not incur any civil or criminal liability as a result of |
229 | the withdrawal or analysis of a blood or urine specimen, or the |
230 | chemical or physical test of a person's breath pursuant to |
231 | accepted medical standards when requested by a law enforcement |
232 | officer, regardless of whether or not the subject resisted |
233 | administration of the test. |
234 | Section 4. Section 327.359, Florida Statutes, is amended |
235 | to read: |
236 | 327.359 Refusal to submit to testing; penalties.--Any |
237 | person who has refused to submit to a chemical or physical test |
238 | of his or her breath, blood, or urine, as described in s. |
239 | 327.352, and who has been previously fined for refusal to submit |
240 | to a lawful test of his or her breath, urine, or blood, and: |
241 | (1) Who the arresting law enforcement officer had probable |
242 | cause to believe was operating or in actual physical control of |
243 | a vessel in this state while under the influence of alcoholic |
244 | beverages, chemical substances, or controlled substances; |
245 | (2) Who was placed under lawful arrest for a violation of |
246 | s. 327.35 unless such test was requested pursuant to s. |
247 | 327.352(1)(c); |
248 | (3) Who was informed that if he or she refused to submit |
249 | to such test he or she is subject to a fine of $500; |
250 | (4) Who was informed that a refusal to submit to a lawful |
251 | test of his or her breath, urine, or blood, if he or she has |
252 | been previously fined for refusal to submit to a lawful test of |
253 | his or her breath, urine, or blood, is a misdemeanor; and |
254 | (5) Who, after having been so informed, refused to submit |
255 | to any such test when requested to do so by a law enforcement |
256 | officer or correctional officer, |
257 |
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258 | commits the offense of refusal to submit to testing. If such |
259 | person has previously been fined for a prior refusal to submit |
260 | to a lawful test of his or her breath, urine, or blood, such |
261 | offense is a misdemeanor of the first degree, punishable and is |
262 | subject to punishment as provided in s. 775.082 or s. 775.083. |
263 | If such person has not previously been fined for a prior refusal |
264 | to submit to a lawful test of his or her breath, urine, or |
265 | blood, such offense shall be punished by imprisonment for not |
266 | more than 6 months and by a fine of up to $500. |