HB 187

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

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