| 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 |
|
| 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 |
|
| 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 |
|
| 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. |