| 1 | A bill to be entitled |
| 2 | An act relating to lawful testing for alcohol, chemical |
| 3 | substances, or controlled substances; amending s. |
| 4 | 316.1932, F.S.; revising provisions to notify a person |
| 5 | that refusal to submit to a lawful test of the person's |
| 6 | breath, urine, or blood is a misdemeanor, to conform to |
| 7 | changes made by the act; limiting information to be made |
| 8 | available to a person tested to determine the amount of |
| 9 | alcohol in the person's blood or breath or the presence of |
| 10 | chemical substances or controlled substances; amending s. |
| 11 | 316.1939, F.S.; removing prior suspension as a condition |
| 12 | for the commission of a misdemeanor by refusal to submit |
| 13 | to a lawful test of breath, urine, or blood; providing |
| 14 | penalties for refusal to submit to testing; amending s. |
| 15 | 327.352, F.S.; revising provisions to notify a person that |
| 16 | refusal to submit to a lawful test of the person's breath, |
| 17 | urine, or blood is a misdemeanor, to conform to changes |
| 18 | made by the act; limiting information to be made available |
| 19 | to a person tested to determine the amount of alcohol in |
| 20 | the person's blood or breath or the presence of chemical |
| 21 | substances or controlled substances; amending s. 327.359, |
| 22 | F.S.; removing prior suspension as a condition for the |
| 23 | commission of a misdemeanor by refusal to submit to a |
| 24 | lawful test of breath, urine, or blood; providing |
| 25 | penalties for refusal to submit to testing; providing an |
| 26 | effective date. |
| 27 |
|
| 28 | Be It Enacted by the Legislature of the State of Florida: |
| 29 |
|
| 30 | Section 1. Paragraphs (a), (c), and (f) of subsection (1) |
| 31 | of section 316.1932, Florida Statutes, are amended to read: |
| 32 | 316.1932 Tests for alcohol, chemical substances, or |
| 33 | controlled substances; implied consent; refusal.-- |
| 34 | (1)(a)1.a. Any person who accepts the privilege extended |
| 35 | by the laws of this state of operating a motor vehicle within |
| 36 | this state is, by so operating such vehicle, deemed to have |
| 37 | given his or her consent to submit to an approved chemical test |
| 38 | or physical test including, but not limited to, an infrared |
| 39 | light test of his or her breath for the purpose of determining |
| 40 | the alcoholic content of his or her blood or breath if the |
| 41 | person is lawfully arrested for any offense allegedly committed |
| 42 | while the person was driving or was in actual physical control |
| 43 | of a motor vehicle while under the influence of alcoholic |
| 44 | beverages. The chemical or physical breath test must be |
| 45 | incidental to a lawful arrest and administered at the request of |
| 46 | a law enforcement officer who has reasonable cause to believe |
| 47 | such person was driving or was in actual physical control of the |
| 48 | motor vehicle within this state while under the influence of |
| 49 | alcoholic beverages. The administration of a breath test does |
| 50 | not preclude the administration of another type of test. The |
| 51 | person shall be told that his or her failure to submit to any |
| 52 | lawful test of his or her breath will result in the suspension |
| 53 | of the person's privilege to operate a motor vehicle for a |
| 54 | period of 1 year for a first refusal, or for a period of 18 |
| 55 | months if the driving privilege of such person has been |
| 56 | previously suspended as a result of a refusal to submit to such |
| 57 | a test or tests, and shall also be told that if he or she |
| 58 | refuses to submit to a lawful test of his or her breath and his |
| 59 | or her driving privilege has been previously suspended for a |
| 60 | prior refusal to submit to a lawful test of his or her breath, |
| 61 | urine, or blood, he or she commits a misdemeanor in addition to |
| 62 | any other penalties. The refusal to submit to a chemical or |
| 63 | physical breath test upon the request of a law enforcement |
| 64 | officer as provided in this section is admissible into evidence |
| 65 | in any criminal proceeding. |
| 66 | b. Any person who accepts the privilege extended by the |
| 67 | laws of this state of operating a motor vehicle within this |
| 68 | state is, by so operating such vehicle, deemed to have given his |
| 69 | or her consent to submit to a urine test for the purpose of |
| 70 | detecting the presence of chemical substances as set forth in s. |
| 71 | 877.111 or controlled substances if the person is lawfully |
| 72 | arrested for any offense allegedly committed while the person |
| 73 | was driving or was in actual physical control of a motor vehicle |
| 74 | while under the influence of chemical substances or controlled |
| 75 | substances. The urine test must be incidental to a lawful arrest |
| 76 | and administered at a detention facility or any other facility, |
| 77 | mobile or otherwise, which is equipped to administer such tests |
| 78 | at the request of a law enforcement officer who has reasonable |
| 79 | cause to believe such person was driving or was in actual |
| 80 | physical control of a motor vehicle within this state while |
| 81 | under the influence of chemical substances or controlled |
| 82 | substances. The urine test shall be administered at a detention |
| 83 | facility or any other facility, mobile or otherwise, which is |
| 84 | equipped to administer such test in a reasonable manner that |
| 85 | will ensure the accuracy of the specimen and maintain the |
| 86 | privacy of the individual involved. The administration of a |
| 87 | urine test does not preclude the administration of another type |
| 88 | of test. The person shall be told that his or her failure to |
| 89 | submit to any lawful test of his or her urine will result in the |
| 90 | suspension of the person's privilege to operate a motor vehicle |
| 91 | for a period of 1 year for the first refusal, or for a period of |
| 92 | 18 months if the driving privilege of such person has been |
| 93 | previously suspended as a result of a refusal to submit to such |
| 94 | a test or tests, and shall also be told that if he or she |
| 95 | refuses to submit to a lawful test of his or her urine and his |
| 96 | or her driving privilege has been previously suspended for a |
| 97 | prior refusal to submit to a lawful test of his or her breath, |
| 98 | urine, or blood, he or she commits a misdemeanor in addition to |
| 99 | any other penalties. The refusal to submit to a urine test upon |
| 100 | the request of a law enforcement officer as provided in this |
| 101 | section is admissible into evidence in any criminal proceeding. |
| 102 | 2. The Alcohol Testing Program within the Department of |
| 103 | Law Enforcement is responsible for the regulation of the |
| 104 | operation, inspection, and registration of breath test |
| 105 | instruments utilized under the driving and boating under the |
| 106 | influence provisions and related provisions located in this |
| 107 | chapter and chapters 322 and 327. The program is responsible for |
| 108 | the regulation of the individuals who operate, inspect, and |
| 109 | instruct on the breath test instruments utilized in the driving |
| 110 | and boating under the influence provisions and related |
| 111 | provisions located in this chapter and chapters 322 and 327. The |
| 112 | program is further responsible for the regulation of blood |
| 113 | analysts who conduct blood testing to be utilized under the |
| 114 | driving and boating under the influence provisions and related |
| 115 | provisions located in this chapter and chapters 322 and 327. The |
| 116 | program shall: |
| 117 | a. Establish uniform criteria for the issuance of permits |
| 118 | to breath test operators, agency inspectors, instructors, blood |
| 119 | analysts, and instruments. |
| 120 | b. Have the authority to permit breath test operators, |
| 121 | agency inspectors, instructors, blood analysts, and instruments. |
| 122 | c. Have the authority to discipline and suspend, revoke, |
| 123 | or renew the permits of breath test operators, agency |
| 124 | inspectors, instructors, blood analysts, and instruments. |
| 125 | d. Establish uniform requirements for instruction and |
| 126 | curricula for the operation and inspection of approved |
| 127 | instruments. |
| 128 | e. Have the authority to specify one approved curriculum |
| 129 | for the operation and inspection of approved instruments. |
| 130 | f. Establish a procedure for the approval of breath test |
| 131 | operator and agency inspector classes. |
| 132 | g. Have the authority to approve or disapprove breath test |
| 133 | instruments and accompanying paraphernalia for use pursuant to |
| 134 | the driving and boating under the influence provisions and |
| 135 | related provisions located in this chapter and chapters 322 and |
| 136 | 327. |
| 137 | h. With the approval of the executive director of the |
| 138 | Department of Law Enforcement, make and enter into contracts and |
| 139 | agreements with other agencies, organizations, associations, |
| 140 | corporations, individuals, or federal agencies as are necessary, |
| 141 | expedient, or incidental to the performance of duties. |
| 142 | i. Issue final orders which include findings of fact and |
| 143 | conclusions of law and which constitute final agency action for |
| 144 | the purpose of chapter 120. |
| 145 | j. Enforce compliance with the provisions of this section |
| 146 | through civil or administrative proceedings. |
| 147 | k. Make recommendations concerning any matter within the |
| 148 | purview of this section, this chapter, chapter 322, or chapter |
| 149 | 327. |
| 150 | l. Promulgate rules for the administration and |
| 151 | implementation of this section, including definitions of terms. |
| 152 | m. Consult and cooperate with other entities for the |
| 153 | purpose of implementing the mandates of this section. |
| 154 | n. Have the authority to approve the type of blood test |
| 155 | utilized under the driving and boating under the influence |
| 156 | provisions and related provisions located in this chapter and |
| 157 | chapters 322 and 327. |
| 158 | o. Have the authority to specify techniques and methods |
| 159 | for breath alcohol testing and blood testing utilized under the |
| 160 | driving and boating under the influence provisions and related |
| 161 | provisions located in this chapter and chapters 322 and 327. |
| 162 | p. Have the authority to approve repair facilities for the |
| 163 | approved breath test instruments, including the authority to set |
| 164 | criteria for approval. |
| 165 |
|
| 166 | Nothing in this section shall be construed to supersede |
| 167 | provisions in this chapter and chapters 322 and 327. The |
| 168 | specifications in this section are derived from the power and |
| 169 | authority previously and currently possessed by the Department |
| 170 | of Law Enforcement and are enumerated to conform with the |
| 171 | mandates of chapter 99-379, Laws of Florida. |
| 172 | (c) Any person who accepts the privilege extended by the |
| 173 | laws of this state of operating a motor vehicle within this |
| 174 | state is, by operating such vehicle, deemed to have given his or |
| 175 | her consent to submit to an approved blood test for the purpose |
| 176 | of determining the alcoholic content of the blood or a blood |
| 177 | test for the purpose of determining the presence of chemical |
| 178 | substances or controlled substances as provided in this section |
| 179 | if there is reasonable cause to believe the person was driving |
| 180 | or in actual physical control of a motor vehicle while under the |
| 181 | influence of alcoholic beverages or chemical or controlled |
| 182 | substances and the person appears for treatment at a hospital, |
| 183 | clinic, or other medical facility and the administration of a |
| 184 | breath or urine test is impractical or impossible. As used in |
| 185 | this paragraph, the term "other medical facility" includes an |
| 186 | ambulance or other medical emergency vehicle. The blood test |
| 187 | shall be performed in a reasonable manner. Any person who is |
| 188 | incapable of refusal by reason of unconsciousness or other |
| 189 | mental or physical condition is deemed not to have withdrawn his |
| 190 | or her consent to such test. A blood test may be administered |
| 191 | whether or not the person is told that his or her failure to |
| 192 | submit to such a blood test will result in the suspension of the |
| 193 | person's privilege to operate a motor vehicle upon the public |
| 194 | highways of this state and that a refusal to submit to a lawful |
| 195 | test of his or her blood, if his or her driving privilege has |
| 196 | been previously suspended for refusal to submit to a lawful test |
| 197 | of his or her breath, urine, or blood, is a misdemeanor. Any |
| 198 | person who is capable of refusal shall be told that his or her |
| 199 | failure to submit to such a blood test will result in the |
| 200 | suspension of the person's privilege to operate a motor vehicle |
| 201 | for a period of 1 year for a first refusal, or for a period of |
| 202 | 18 months if the driving privilege of the person has been |
| 203 | suspended previously as a result of a refusal to submit to such |
| 204 | a test or tests, and that a refusal to submit to a lawful test |
| 205 | of his or her blood, if his or her driving privilege has been |
| 206 | previously suspended for a prior refusal to submit to a lawful |
| 207 | test of his or her breath, urine, or blood, is a misdemeanor. |
| 208 | The refusal to submit to a blood test upon the request of a law |
| 209 | enforcement officer is admissible in evidence in any criminal |
| 210 | proceeding. |
| 211 | (f)1. The tests determining the weight of alcohol in the |
| 212 | defendant's blood or breath shall be administered at the request |
| 213 | of a law enforcement officer substantially in accordance with |
| 214 | rules of the Department of Law Enforcement. Such rules must |
| 215 | specify precisely the test or tests that are approved by the |
| 216 | Department of Law Enforcement for reliability of result and ease |
| 217 | of administration, and must provide an approved method of |
| 218 | administration which must be followed in all such tests given |
| 219 | under this section. However, the failure of a law enforcement |
| 220 | officer to request the withdrawal of blood does not affect the |
| 221 | admissibility of a test of blood withdrawn for medical purposes. |
| 222 | 2.a. Only a physician, certified paramedic, registered |
| 223 | nurse, licensed practical nurse, other personnel authorized by a |
| 224 | hospital to draw blood, or duly licensed clinical laboratory |
| 225 | director, supervisor, technologist, or technician, acting at the |
| 226 | request of a law enforcement officer, may withdraw blood for the |
| 227 | purpose of determining its alcoholic content or the presence of |
| 228 | chemical substances or controlled substances therein. However, |
| 229 | the failure of a law enforcement officer to request the |
| 230 | withdrawal of blood does not affect the admissibility of a test |
| 231 | of blood withdrawn for medical purposes. |
| 232 | b. Notwithstanding any provision of law pertaining to the |
| 233 | confidentiality of hospital records or other medical records, if |
| 234 | a health care provider, who is providing medical care in a |
| 235 | health care facility to a person injured in a motor vehicle |
| 236 | crash, becomes aware, as a result of any blood test performed in |
| 237 | the course of that medical treatment, that the person's blood- |
| 238 | alcohol level meets or exceeds the blood-alcohol level specified |
| 239 | in s. 316.193(1)(b), the health care provider may notify any law |
| 240 | enforcement officer or law enforcement agency. Any such notice |
| 241 | must be given within a reasonable time after the health care |
| 242 | provider receives the test result. Any such notice shall be used |
| 243 | only for the purpose of providing the law enforcement officer |
| 244 | with reasonable cause to request the withdrawal of a blood |
| 245 | sample pursuant to this section. |
| 246 | c. The notice shall consist only of the name of the person |
| 247 | being treated, the name of the person who drew the blood, the |
| 248 | blood-alcohol level indicated by the test, and the date and time |
| 249 | of the administration of the test. |
| 250 | d. Nothing contained in s. 395.3025(4), s. 456.057, or any |
| 251 | applicable practice act affects the authority to provide notice |
| 252 | under this section, and the health care provider is not |
| 253 | considered to have breached any duty owed to the person under s. |
| 254 | 395.3025(4), s. 456.057, or any applicable practice act by |
| 255 | providing notice or failing to provide notice. It shall not be a |
| 256 | breach of any ethical, moral, or legal duty for a health care |
| 257 | provider to provide notice or fail to provide notice. |
| 258 | e. A civil, criminal, or administrative action may not be |
| 259 | brought against any person or health care provider participating |
| 260 | in good faith in the provision of notice or failure to provide |
| 261 | notice as provided in this section. Any person or health care |
| 262 | provider participating in the provision of notice or failure to |
| 263 | provide notice as provided in this section shall be immune from |
| 264 | any civil or criminal liability and from any professional |
| 265 | disciplinary action with respect to the provision of notice or |
| 266 | failure to provide notice under this section. Any such |
| 267 | participant has the same immunity with respect to participating |
| 268 | in any judicial proceedings resulting from the notice or failure |
| 269 | to provide notice. |
| 270 | 3. The person tested may, at his or her own expense, have |
| 271 | a physician, registered nurse, other personnel authorized by a |
| 272 | hospital to draw blood, or duly licensed clinical laboratory |
| 273 | director, supervisor, technologist, or technician, or other |
| 274 | person of his or her own choosing administer an independent test |
| 275 | in addition to the test administered at the direction of the law |
| 276 | enforcement officer for the purpose of determining the amount of |
| 277 | alcohol in the person's blood or breath or the presence of |
| 278 | chemical substances or controlled substances at the time |
| 279 | alleged, as shown by chemical analysis of his or her blood or |
| 280 | urine, or by chemical or physical test of his or her breath. The |
| 281 | failure or inability to obtain an independent test by a person |
| 282 | does not preclude the admissibility in evidence of the test |
| 283 | taken at the direction of the law enforcement officer. The law |
| 284 | enforcement officer shall not interfere with the person's |
| 285 | opportunity to obtain the independent test and shall provide the |
| 286 | person with timely telephone access to secure the test, but the |
| 287 | burden is on the person to arrange and secure the test at the |
| 288 | person's own expense. |
| 289 | 4. Upon the request of the person tested, full information |
| 290 | concerning the results of the test taken at the direction of the |
| 291 | law enforcement officer shall be made available to the person or |
| 292 | his or her attorney. Full information is limited to the |
| 293 | following: |
| 294 | a. The type of test administered and the procedures |
| 295 | followed. |
| 296 | b. The time of the collection of the blood or breath |
| 297 | sample analyzed. |
| 298 | c. The numerical results of the test indicating the |
| 299 | alcohol content of the blood and breath. |
| 300 | d. The type and status of any permit issued by the |
| 301 | Department of Law Enforcement which was held by the person who |
| 302 | performed the test. |
| 303 | e. If the test was administered by means of a breath |
| 304 | testing instrument, the date of performance of the most recent |
| 305 | required inspection of such instrument. |
| 306 |
|
| 307 | Full information does not include manuals, schematics, or |
| 308 | software of the instrument used to test the person or any other |
| 309 | material that is not in the actual possession of the state. |
| 310 | Additionally, full information does not include information in |
| 311 | the possession of the manufacturer of the test instrument. |
| 312 | 5. A hospital, clinical laboratory, medical clinic, or |
| 313 | similar medical institution or physician, certified paramedic, |
| 314 | registered nurse, licensed practical nurse, other personnel |
| 315 | authorized by a hospital to draw blood, or duly licensed |
| 316 | clinical laboratory director, supervisor, technologist, or |
| 317 | technician, or other person assisting a law enforcement officer |
| 318 | does not incur any civil or criminal liability as a result of |
| 319 | the withdrawal or analysis of a blood or urine specimen, or the |
| 320 | chemical or physical test of a person's breath pursuant to |
| 321 | accepted medical standards when requested by a law enforcement |
| 322 | officer, regardless of whether or not the subject resisted |
| 323 | administration of the test. |
| 324 | Section 2. Section 316.1939, Florida Statutes, is amended |
| 325 | to read: |
| 326 | 316.1939 Refusal to submit to testing; penalties.-- |
| 327 | (1) Any person who has refused to submit to a chemical or |
| 328 | physical test of his or her breath, blood, or urine, as |
| 329 | described in s. 316.1932, and whose driving privilege was |
| 330 | previously suspended for a prior refusal to submit to a lawful |
| 331 | test of his or her breath, urine, or blood, and: |
| 332 | (a) Who the arresting law enforcement officer had probable |
| 333 | cause to believe was driving or in actual physical control of a |
| 334 | motor vehicle in this state while under the influence of |
| 335 | alcoholic beverages, chemical substances, or controlled |
| 336 | substances; |
| 337 | (b) Who was placed under lawful arrest for a violation of |
| 338 | s. 316.193 unless such test was requested pursuant to s. |
| 339 | 316.1932(1)(c); |
| 340 | (c) Who was informed that, if he or she refused to submit |
| 341 | to such test, his or her privilege to operate a motor vehicle |
| 342 | would be suspended for a period of 1 year or, in the case of a |
| 343 | second or subsequent refusal, for a period of 18 months; |
| 344 | (d) Who was informed that a refusal to submit to a lawful |
| 345 | test of his or her breath, urine, or blood, if his or her |
| 346 | driving privilege has been previously suspended for a prior |
| 347 | refusal to submit to a lawful test of his or her breath, urine, |
| 348 | or blood, is a misdemeanor; and |
| 349 | (e) Who, after having been so informed, refused to submit |
| 350 | to any such test when requested to do so by a law enforcement |
| 351 | officer or correctional officer, |
| 352 |
|
| 353 | commits the offense of refusal to submit to testing. If such |
| 354 | person's driving privilege was previously suspended for a prior |
| 355 | refusal to submit to a lawful test of his or her breath, urine, |
| 356 | or blood, such offense is a misdemeanor of the first degree, |
| 357 | punishable and is subject to punishment as provided in s. |
| 358 | 775.082 or s. 775.083. If such person's driving privilege was |
| 359 | not previously suspended for a prior refusal to submit to a |
| 360 | lawful test of his or her breath, urine, or blood, such offense |
| 361 | shall be punished by imprisonment for not more than 6 months and |
| 362 | by a fine of up to $500. |
| 363 | (2) The disposition of any administrative proceeding that |
| 364 | relates to the suspension of a person's driving privilege does |
| 365 | not affect a criminal action under this section. |
| 366 | (3) The disposition of a criminal action under this |
| 367 | section does not affect any administrative proceeding that |
| 368 | relates to the suspension of a person's driving privilege. The |
| 369 | department's records showing that a person's license has been |
| 370 | previously suspended for a prior refusal to submit to a lawful |
| 371 | test of his or her breath, urine, or blood shall be admissible |
| 372 | and shall create a rebuttable presumption of such suspension. |
| 373 | Section 3. Paragraphs (a), (c), and (e) of subsection (1) |
| 374 | of section 327.352, Florida Statutes, are amended to read: |
| 375 | 327.352 Tests for alcohol, chemical substances, or |
| 376 | controlled substances; implied consent; refusal.-- |
| 377 | (1)(a)1. The Legislature declares that the operation of a |
| 378 | vessel is a privilege that must be exercised in a reasonable |
| 379 | manner. In order to protect the public health and safety, it is |
| 380 | essential that a lawful and effective means of reducing the |
| 381 | incidence of boating while impaired or intoxicated be |
| 382 | established. Therefore, any person who accepts the privilege |
| 383 | extended by the laws of this state of operating a vessel within |
| 384 | this state is, by so operating such vessel, deemed to have given |
| 385 | his or her consent to submit to an approved chemical test or |
| 386 | physical test including, but not limited to, an infrared light |
| 387 | test of his or her breath for the purpose of determining the |
| 388 | alcoholic content of his or her blood or breath if the person is |
| 389 | lawfully arrested for any offense allegedly committed while the |
| 390 | person was operating a vessel while under the influence of |
| 391 | alcoholic beverages. The chemical or physical breath test must |
| 392 | be incidental to a lawful arrest and administered at the request |
| 393 | of a law enforcement officer who has reasonable cause to believe |
| 394 | such person was operating the vessel within this state while |
| 395 | under the influence of alcoholic beverages. The administration |
| 396 | of a breath test does not preclude the administration of another |
| 397 | type of test. The person shall be told that his or her failure |
| 398 | to submit to any lawful test of his or her breath will result in |
| 399 | a civil penalty of $500, and shall also be told that if he or |
| 400 | she refuses to submit to a lawful test of his or her breath and |
| 401 | he or she has been previously fined for refusal to submit to any |
| 402 | lawful test of his or her breath, urine, or blood, he or she |
| 403 | commits a misdemeanor in addition to any other penalties. The |
| 404 | refusal to submit to a chemical or physical breath test upon the |
| 405 | request of a law enforcement officer as provided in this section |
| 406 | is admissible into evidence in any criminal proceeding. |
| 407 | 2. Any person who accepts the privilege extended by the |
| 408 | laws of this state of operating a vessel within this state is, |
| 409 | by so operating such vessel, deemed to have given his or her |
| 410 | consent to submit to a urine test for the purpose of detecting |
| 411 | the presence of chemical substances as set forth in s. 877.111 |
| 412 | or controlled substances if the person is lawfully arrested for |
| 413 | any offense allegedly committed while the person was operating a |
| 414 | vessel while under the influence of chemical substances or |
| 415 | controlled substances. The urine test must be incidental to a |
| 416 | lawful arrest and administered at a detention facility or any |
| 417 | other facility, mobile or otherwise, which is equipped to |
| 418 | administer such tests at the request of a law enforcement |
| 419 | officer who has reasonable cause to believe such person was |
| 420 | operating a vessel within this state while under the influence |
| 421 | of chemical substances or controlled substances. The urine test |
| 422 | shall be administered at a detention facility or any other |
| 423 | facility, mobile or otherwise, which is equipped to administer |
| 424 | such test in a reasonable manner that will ensure the accuracy |
| 425 | of the specimen and maintain the privacy of the individual |
| 426 | involved. The administration of a urine test does not preclude |
| 427 | the administration of another type of test. The person shall be |
| 428 | told that his or her failure to submit to any lawful test of his |
| 429 | or her urine will result in a civil penalty of $500, and shall |
| 430 | also be told that if he or she refuses to submit to a lawful |
| 431 | test of his or her urine and he or she has been previously fined |
| 432 | for refusal to submit to any lawful test of his or her breath, |
| 433 | urine, or blood, he or she commits a misdemeanor in addition to |
| 434 | any other penalties. The refusal to submit to a urine test upon |
| 435 | the request of a law enforcement officer as provided in this |
| 436 | section is admissible into evidence in any criminal proceeding. |
| 437 | (c) Any person who accepts the privilege extended by the |
| 438 | laws of this state of operating a vessel within this state is, |
| 439 | by operating such vessel, deemed to have given his or her |
| 440 | consent to submit to an approved blood test for the purpose of |
| 441 | determining the alcoholic content of the blood or a blood test |
| 442 | for the purpose of determining the presence of chemical |
| 443 | substances or controlled substances as provided in this section |
| 444 | if there is reasonable cause to believe the person was operating |
| 445 | a vessel while under the influence of alcoholic beverages or |
| 446 | chemical or controlled substances and the person appears for |
| 447 | treatment at a hospital, clinic, or other medical facility and |
| 448 | the administration of a breath or urine test is impractical or |
| 449 | impossible. As used in this paragraph, the term "other medical |
| 450 | facility" includes an ambulance or other medical emergency |
| 451 | vehicle. The blood test shall be performed in a reasonable |
| 452 | manner. Any person who is incapable of refusal by reason of |
| 453 | unconsciousness or other mental or physical condition is deemed |
| 454 | not to have withdrawn his or her consent to such test. Any |
| 455 | person who is capable of refusal shall be told that his or her |
| 456 | failure to submit to such a blood test will result in a civil |
| 457 | penalty of $500 and that a refusal to submit to a lawful test of |
| 458 | his or her blood, if he or she has previously been fined for |
| 459 | refusal to submit to any lawful test of his or her breath, |
| 460 | urine, or blood, is a misdemeanor. The refusal to submit to a |
| 461 | blood test upon the request of a law enforcement officer shall |
| 462 | be admissible in evidence in any criminal proceeding. |
| 463 | (e)1. The tests determining the weight of alcohol in the |
| 464 | defendant's blood or breath shall be administered at the request |
| 465 | of a law enforcement officer substantially in accordance with |
| 466 | rules of the Department of Law Enforcement. However, the failure |
| 467 | of a law enforcement officer to request the withdrawal of blood |
| 468 | does not affect the admissibility of a test of blood withdrawn |
| 469 | for medical purposes. |
| 470 | 2. Only a physician, certified paramedic, registered |
| 471 | nurse, licensed practical nurse, other personnel authorized by a |
| 472 | hospital to draw blood, or duly licensed clinical laboratory |
| 473 | director, supervisor, technologist, or technician, acting at the |
| 474 | request of a law enforcement officer, may withdraw blood for the |
| 475 | purpose of determining its alcoholic content or the presence of |
| 476 | chemical substances or controlled substances therein. However, |
| 477 | the failure of a law enforcement officer to request the |
| 478 | withdrawal of blood does not affect the admissibility of a test |
| 479 | of blood withdrawn for medical purposes. |
| 480 | 3. The person tested may, at his or her own expense, have |
| 481 | a physician, registered nurse, other personnel authorized by a |
| 482 | hospital to draw blood, or duly licensed clinical laboratory |
| 483 | director, supervisor, technologist, or technician, or other |
| 484 | person of his or her own choosing administer an independent test |
| 485 | in addition to the test administered at the direction of the law |
| 486 | enforcement officer for the purpose of determining the amount of |
| 487 | alcohol in the person's blood or breath or the presence of |
| 488 | chemical substances or controlled substances at the time |
| 489 | alleged, as shown by chemical analysis of his or her blood or |
| 490 | urine, or by chemical or physical test of his or her breath. The |
| 491 | failure or inability to obtain an independent test by a person |
| 492 | does not preclude the admissibility in evidence of the test |
| 493 | taken at the direction of the law enforcement officer. The law |
| 494 | enforcement officer shall not interfere with the person's |
| 495 | opportunity to obtain the independent test and shall provide the |
| 496 | person with timely telephone access to secure the test, but the |
| 497 | burden is on the person to arrange and secure the test at the |
| 498 | person's own expense. |
| 499 | 4. Upon the request of the person tested, full information |
| 500 | concerning the results of the test taken at the direction of the |
| 501 | law enforcement officer shall be made available to the person or |
| 502 | his or her attorney. Full information is limited to the |
| 503 | following: |
| 504 | a. The type of test administered and the procedures |
| 505 | followed. |
| 506 | b. The time of the collection of the blood or breath |
| 507 | sample analyzed. |
| 508 | c. The numerical results of the test indicating the |
| 509 | alcohol content of the blood and breath. |
| 510 | d. The type and status of any permit issued by the |
| 511 | Department of Law Enforcement which was held by the person who |
| 512 | performed the test. |
| 513 | e. If the test was administered by means of a breath |
| 514 | testing instrument, the date of performance of the most recent |
| 515 | required inspection of such instrument. |
| 516 |
|
| 517 | Full information does not include manuals, schematics, or |
| 518 | software of the instrument used to test the person or any other |
| 519 | material that is not in the actual possession of the state. |
| 520 | Additionally, full information does not include information in |
| 521 | the possession of the manufacturer of the test instrument. |
| 522 | 5. A hospital, clinical laboratory, medical clinic, or |
| 523 | similar medical institution or physician, certified paramedic, |
| 524 | registered nurse, licensed practical nurse, other personnel |
| 525 | authorized by a hospital to draw blood, or duly licensed |
| 526 | clinical laboratory director, supervisor, technologist, or |
| 527 | technician, or other person assisting a law enforcement officer |
| 528 | does not incur any civil or criminal liability as a result of |
| 529 | the withdrawal or analysis of a blood or urine specimen, or the |
| 530 | chemical or physical test of a person's breath pursuant to |
| 531 | accepted medical standards when requested by a law enforcement |
| 532 | officer, regardless of whether or not the subject resisted |
| 533 | administration of the test. |
| 534 | Section 4. Section 327.359, Florida Statutes, is amended |
| 535 | to read: |
| 536 | 327.359 Refusal to submit to testing; penalties.--Any |
| 537 | person who has refused to submit to a chemical or physical test |
| 538 | of his or her breath, blood, or urine, as described in s. |
| 539 | 327.352, and who has been previously fined for refusal to submit |
| 540 | to a lawful test of his or her breath, urine, or blood, and: |
| 541 | (1) Who the arresting law enforcement officer had probable |
| 542 | cause to believe was operating or in actual physical control of |
| 543 | a vessel in this state while under the influence of alcoholic |
| 544 | beverages, chemical substances, or controlled substances; |
| 545 | (2) Who was placed under lawful arrest for a violation of |
| 546 | s. 327.35 unless such test was requested pursuant to s. |
| 547 | 327.352(1)(c); |
| 548 | (3) Who was informed that if he or she refused to submit |
| 549 | to such test he or she is subject to a fine of $500; |
| 550 | (4) Who was informed that a refusal to submit to a lawful |
| 551 | test of his or her breath, urine, or blood, if he or she has |
| 552 | been previously fined for refusal to submit to a lawful test of |
| 553 | his or her breath, urine, or blood, is a misdemeanor; and |
| 554 | (5) Who, after having been so informed, refused to submit |
| 555 | to any such test when requested to do so by a law enforcement |
| 556 | officer or correctional officer, |
| 557 |
|
| 558 | commits the offense of refusal to submit to testing. If such |
| 559 | person has previously been fined for a prior refusal to submit |
| 560 | to a lawful test of his or her breath, urine, or blood, such |
| 561 | offense is a misdemeanor of the first degree, punishable and is |
| 562 | subject to punishment as provided in s. 775.082 or s. 775.083. |
| 563 | If such person has not previously been fined for a prior refusal |
| 564 | to submit to a lawful test of his or her breath, urine, or |
| 565 | blood, such offense shall be punished by imprisonment for not |
| 566 | more than 6 months and by a fine of up to $500. |
| 567 | Section 5. This act shall take effect October 1, 2006. |