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. |