Senate Bill sb2296c1

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    Florida Senate - 2006                           CS for SB 2296

    By the Committee on Transportation; and Senator Wise





    596-2424-06

  1                      A bill to be entitled

  2         An act relating to driving and boating under

  3         the influence; amending s. 316.193, F.S.;

  4         providing for applicability of sanctions;

  5         requiring a specified period of imprisonment

  6         for a fourth or subsequent conviction of

  7         driving under the influence; prohibiting

  8         substitution of treatment alternatives in

  9         certain circumstances; requiring impoundment or

10         immobilization of all vehicles owned by the

11         defendant for a specified period; providing for

12         dismissal of an impoundment order; requiring

13         records of judgments of guilty to include

14         fingerprints and social security numbers;

15         amending s. 327.35, F.S.; requiring a specified

16         period of imprisonment for a fourth or

17         subsequent conviction of boating under the

18         influence; prohibiting substitution of

19         treatment alternatives in certain

20         circumstances; requiring impoundment or

21         immobilization of the vessel operated by or in

22         the actual control of the defendant or any one

23         vehicle registered in the defendant's name at

24         the time of impoundment or immobilization for a

25         specified period; providing for dismissal of an

26         order of impoundment or immobilization under

27         certain circumstances upon request of an owner

28         who was not operating the vessel; providing for

29         dismissal of an impoundment order; requiring

30         records of judgments of guilty to include

31         fingerprints and social security numbers;

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    Florida Senate - 2006                           CS for SB 2296
    596-2424-06




 1         providing applicability; providing an effective

 2         date.

 3  

 4  Be It Enacted by the Legislature of the State of Florida:

 5  

 6         Section 1.  Subsection (6) of section 316.193, Florida

 7  Statutes, is amended, and subsection (13) is added to that

 8  section, to read:

 9         316.193  Driving under the influence; penalties.--

10         (6)  With respect to any person convicted of a

11  violation of this section subsection (1), regardless of any

12  penalty imposed pursuant to subsection (2), subsection (3), or

13  subsection (4):

14         (a)  For the first conviction, the court shall place

15  the defendant on probation for a period not to exceed 1 year

16  and, as a condition of such probation, shall order the

17  defendant to participate in public service or a community work

18  project for a minimum of 50 hours; or the court may order

19  instead, that any defendant pay an additional fine of $10 for

20  each hour of public service or community work otherwise

21  required, if, after consideration of the residence or location

22  of the defendant at the time public service or community work

23  is required, payment of the fine is in the best interests of

24  the state. However, the total period of probation and

25  incarceration may not exceed 1 year. The court must also, as a

26  condition of probation, order the impoundment or

27  immobilization of the vehicle that was operated by or in the

28  actual control of the defendant or any one vehicle registered

29  in the defendant's name at the time of impoundment or

30  immobilization, for a period of 10 days or for the unexpired

31  term of any lease or rental agreement that expires within 10

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    Florida Senate - 2006                           CS for SB 2296
    596-2424-06




 1  days. The impoundment or immobilization must not occur

 2  concurrently with the incarceration of the defendant. The

 3  impoundment or immobilization order may be dismissed in

 4  accordance with paragraph (e), paragraph (f), paragraph (g),

 5  or paragraph (h).

 6         (b)  For the second conviction for an offense that

 7  occurs within a period of 5 years after the date of a prior

 8  conviction for violation of this section, the court shall

 9  order imprisonment for not less than 10 days. The court must

10  also, as a condition of probation, order the impoundment or

11  immobilization of all vehicles owned by the defendant at the

12  time of impoundment or immobilization, for a period of 30 days

13  or for the unexpired term of any lease or rental agreement

14  that expires within 30 days. The impoundment or immobilization

15  must not occur concurrently with the incarceration of the

16  defendant and must occur concurrently with the driver's

17  license revocation imposed under s. 322.28(2)(a)2. The

18  impoundment or immobilization order may be dismissed in

19  accordance with paragraph (e), paragraph (f), paragraph (g),

20  or paragraph (h). At least 48 hours of confinement must be

21  consecutive.

22         (c)  For the third or subsequent conviction for an

23  offense that occurs within a period of 10 years after the date

24  of a prior conviction for violation of this section, the court

25  shall order imprisonment for not less than 30 days. The court

26  must also, as a condition of probation, order the impoundment

27  or immobilization of all vehicles owned by the defendant at

28  the time of impoundment or immobilization, for a period of 90

29  days or for the unexpired term of any lease or rental

30  agreement that expires within 90 days. The impoundment or

31  immobilization shall must not occur concurrently with the

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    Florida Senate - 2006                           CS for SB 2296
    596-2424-06




 1  incarceration of the defendant and shall must occur

 2  concurrently with the driver's license revocation imposed

 3  under s. 322.28(2)(a)3. The impoundment or immobilization

 4  order may be dismissed in accordance with paragraph (e),

 5  paragraph (f), paragraph (g), or paragraph (h). At least 48

 6  hours of confinement must be consecutive.

 7         (d)  The court must at the time of sentencing the

 8  defendant issue an order for the impoundment or immobilization

 9  of a vehicle. Within 7 business days after the date that the

10  court issues the order of impoundment or immobilization, the

11  clerk of the court must send notice by certified mail, return

12  receipt requested, to the registered owner of each vehicle, if

13  the registered owner is a person other than the defendant, and

14  to each person of record claiming a lien against the vehicle.

15         (e)  A person who owns but was not operating the

16  vehicle when the offense occurred may submit to the court a

17  police report indicating that the vehicle was stolen at the

18  time of the offense or documentation of having purchased the

19  vehicle after the offense was committed from an entity other

20  than the defendant or the defendant's agent. If the court

21  finds that the vehicle was stolen or that the sale was not

22  made to circumvent the order and allow the defendant continued

23  access to the vehicle, the order must be dismissed and the

24  owner of the vehicle will incur no costs. If the court denies

25  the request to dismiss the order of impoundment or

26  immobilization, the petitioner may request an evidentiary

27  hearing.

28         (f)  A person who owns but was not operating the

29  vehicle when the offense occurred, and whose vehicle was

30  stolen or who purchased the vehicle after the offense was

31  committed directly from the defendant or the defendant's

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    Florida Senate - 2006                           CS for SB 2296
    596-2424-06




 1  agent, may request an evidentiary hearing to determine whether

 2  the impoundment or immobilization should occur. If the court

 3  finds that either the vehicle was stolen or the purchase was

 4  made without knowledge of the offense, that the purchaser had

 5  no relationship to the defendant other than through the

 6  transaction, and that such purchase would not circumvent the

 7  order and allow the defendant continued access to the vehicle,

 8  the order must be dismissed and the owner of the vehicle will

 9  incur no costs.

10         (g)  The court shall also dismiss the order of

11  impoundment or immobilization of the vehicle if the court

12  finds that the family of the owner of the vehicle has no other

13  private or public means of transportation.

14         (h)  The court may also dismiss the order of

15  impoundment or immobilization of any vehicles that are owned

16  by the defendant but that are operated solely by the employees

17  of the defendant or any business owned by the defendant.

18         (i)  All costs and fees for the impoundment or

19  immobilization, including the cost of notification, must be

20  paid by the owner of the vehicle or, if the vehicle is leased

21  or rented, by the person leasing or renting the vehicle,

22  unless the impoundment or immobilization order is dismissed.

23  All provisions of s. 713.78 shall apply.

24         (j)  The person who owns a vehicle that is impounded or

25  immobilized under this paragraph, or a person who has a lien

26  of record against such a vehicle and who has not requested a

27  review of the impoundment pursuant to paragraph (e), paragraph

28  (f), or paragraph (g), may, within 10 days after the date that

29  person has knowledge of the location of the vehicle, file a

30  complaint in the county in which the owner resides to

31  determine whether the vehicle was wrongfully taken or withheld

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    Florida Senate - 2006                           CS for SB 2296
    596-2424-06




 1  from the owner or lienholder. Upon the filing of a complaint,

 2  the owner or lienholder may have the vehicle released by

 3  posting with the court a bond or other adequate security equal

 4  to the amount of the costs and fees for impoundment or

 5  immobilization, including towing or storage, to ensure the

 6  payment of such costs and fees if the owner or lienholder does

 7  not prevail. When the bond is posted and the fee is paid as

 8  set forth in s. 28.24, the clerk of the court shall issue a

 9  certificate releasing the vehicle. At the time of release,

10  after reasonable inspection, the owner or lienholder must give

11  a receipt to the towing or storage company indicating any loss

12  or damage to the vehicle or to the contents of the vehicle.

13         (k)  A defendant, in the court's discretion, may be

14  required to serve all or any portion of a term of imprisonment

15  to which the defendant has been sentenced pursuant to this

16  section in a residential alcoholism treatment program or a

17  residential drug abuse treatment program. Any time spent in

18  such a program must be credited by the court toward the term

19  of imprisonment.

20         (l)  For the fourth or subsequent conviction under

21  subparagraph (2)(b)3., the court shall order imprisonment for

22  not less than 2 years. There shall be no substitution of this

23  minimum mandatory term of imprisonment with treatment

24  alternatives. However, the court may, with the consent of the

25  state, order the defendant to serve a minimum mandatory

26  sentence of 1 year and 1 day of incarceration followed by a

27  period of probation during which the defendant must attend and

28  successfully complete a residential alcohol treatment program,

29  a residential drug abuse treatment program, or be placed on

30  community control. The court must also, as a condition of

31  probation, order the impoundment or immobilization of all

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    Florida Senate - 2006                           CS for SB 2296
    596-2424-06




 1  vehicles owned by the defendant at the time of impoundment or

 2  immobilization for a period of 120 days or for the unexpired

 3  term of any lease or rental agreement that expires within 120

 4  days. The impoundment or immobilization shall not occur

 5  concurrently with the incarceration of the defendant and shall

 6  occur concurrently with the driver's license revocation

 7  imposed under s. 322.28. The impoundment or immobilization

 8  order may be dismissed in accordance with paragraph (e),

 9  paragraph (f), paragraph (g), or paragraph (h). At least 48

10  hours of confinement must be consecutive.

11  

12  For the purposes of this section, any conviction for a

13  violation of s. 327.35; a previous conviction for the

14  violation of former s. 316.1931, former s. 860.01, or former

15  s. 316.028; or a previous conviction outside this state for

16  driving under the influence, driving while intoxicated,

17  driving with an unlawful blood-alcohol level, driving with an

18  unlawful breath-alcohol level, or any other similar

19  alcohol-related or drug-related traffic offense, is also

20  considered a previous conviction for violation of this

21  section. However, in satisfaction of the fine imposed pursuant

22  to this section, the court may, upon a finding that the

23  defendant is financially unable to pay either all or part of

24  the fine, order that the defendant participate for a specified

25  additional period of time in public service or a community

26  work project in lieu of payment of that portion of the fine

27  which the court determines the defendant is unable to pay. In

28  determining such additional sentence, the court shall consider

29  the amount of the unpaid portion of the fine and the

30  reasonable value of the services to be ordered; however, the

31  court may not compute the reasonable value of services at a

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    Florida Senate - 2006                           CS for SB 2296
    596-2424-06




 1  rate less than the federal minimum wage at the time of

 2  sentencing.

 3         (13)(a)  Notwithstanding s. 921.241, every judgment of

 4  guilty with respect to any offense governed by this section

 5  shall comply with this subsection. Each judgment shall be in

 6  writing, signed by the judge, and recorded by the clerk of the

 7  circuit court. The judge shall cause to be affixed to every

 8  such written judgment of guilty, in open court and in the

 9  presence of such judge, the fingerprints of the defendant

10  against whom such judgment is rendered. Such fingerprints

11  shall be affixed beneath the judge's signature to any such

12  judgment. Beneath such fingerprints shall be appended a

13  certificate in substantially the following form:

14  

15  "I hereby certify that the above and foregoing fingerprints

16  are of the defendant,  (name) , and that they were placed

17  thereon by said defendant in my presence, in open court, this

18  the ___ day of _(month)_________  (year) ."

19  

20  Such certificate shall be signed by the judge, whose signature

21  thereto shall be followed by the word "Judge."

22         (b)  Any such written judgment of guilty, or a

23  certified copy thereof, shall be admissible in evidence in the

24  courts of this state as prima facie evidence that the

25  fingerprints appearing thereon and certified by the judge are

26  the fingerprints of the defendant against whom such judgment

27  of guilty was rendered.

28         (c)  At the time the defendant's fingerprints are

29  taken, the judge shall also cause the defendant's social

30  security number to be taken. The defendant's social security

31  number shall be affixed to every written judgment of guilty,

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    Florida Senate - 2006                           CS for SB 2296
    596-2424-06




 1  in open court, in the presence of such judge, and at the time

 2  the judgment is rendered. If the defendant is unable or

 3  unwilling to provide his or her social security number, the

 4  reason for its absence shall be indicated on the written

 5  judgment.

 6         Section 2.  Paragraphs (a) and (c) of subsection (6) of

 7  section 327.35, Florida Statutes, are amended, paragraphs (j)

 8  and (k) are added to that subsection, and subsection (11) is

 9  added to that section, to read:

10         327.35  Boating under the influence; penalties;

11  "designated drivers".--

12         (6)  With respect to any person convicted of a

13  violation of subsection (1), regardless of any other penalty

14  imposed:

15         (a)  For the first conviction, the court shall place

16  the defendant on probation for a period not to exceed 1 year

17  and, as a condition of such probation, shall order the

18  defendant to participate in public service or a community work

19  project for a minimum of 50 hours. The court must also, as a

20  condition of probation, order the impoundment or

21  immobilization of the vessel that was operated by or in the

22  actual control of the defendant or any one vehicle registered

23  in the defendant's name at the time of impoundment or

24  immobilization, for a period of 10 days or for the unexpired

25  term of any lease or rental agreement that expires within 10

26  days. The impoundment or immobilization must not occur

27  concurrently with the incarceration of the defendant. The

28  impoundment or immobilization order may be dismissed in

29  accordance with paragraph (e) or paragraph (f). The total

30  period of probation and incarceration may not exceed 1 year.

31  

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    Florida Senate - 2006                           CS for SB 2296
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 1         (c)  For the third or subsequent conviction for an

 2  offense that occurs within a period of 10 years after the date

 3  of a prior conviction for violation of this section, the court

 4  shall order imprisonment for not less than 30 days. The court

 5  must also, as a condition of probation, order the impoundment

 6  or immobilization of the vessel that was operated by or in the

 7  actual control of the defendant or any one vehicle registered

 8  in the defendant's name at the time of impoundment or

 9  immobilization, for a period of 90 days or for the unexpired

10  term of any lease or rental agreement that expires within 90

11  days. The impoundment or immobilization shall must not occur

12  concurrently with the incarceration of the defendant. The

13  impoundment or immobilization order may be dismissed in

14  accordance with paragraph (e) or paragraph (f). At least 48

15  hours of confinement must be consecutive.

16         (j)  For the fourth or subsequent conviction under

17  subparagraph (2)(b)3., the court shall order imprisonment for

18  not less than 2 years. There shall be no substitution of this

19  minimum mandatory term of imprisonment with treatment

20  alternatives. However, the court may, with the consent of the

21  state, order the defendant to serve a minimum mandatory

22  sentence of 1 year and 1 day of incarceration followed by a

23  period of probation during which the defendant must attend and

24  successfully complete a residential alcohol treatment program,

25  a residential drug abuse treatment program, or be placed on

26  community control. The court must also, as a condition of

27  probation, order the impoundment or immobilization of the

28  vessel that was operated by or in the actual control of the

29  defendant or any one vehicle registered in the defendant's

30  name at the time of impoundment or immobilization for a period

31  of 120 days or for the unexpired term of any lease or rental

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    Florida Senate - 2006                           CS for SB 2296
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 1  agreement that expires within 120 days. The impoundment or

 2  immobilization shall not occur concurrently with the

 3  incarceration of the defendant. The impoundment or

 4  immobilization order may be dismissed in accordance with

 5  paragraph (e) or paragraph (f). At least 48 hours of

 6  confinement must be consecutive.

 7         (k)  A person who owns but was not operating the vessel

 8  when an offense under this section occurred may request an

 9  evidentiary hearing to determine whether the impoundment or

10  immobilization should occur. If the court finds that the owner

11  was unaware of the defendant's prior conviction and sentence

12  under paragraph (a), paragraph (b), paragraph (c), or

13  paragraph (j) or if the court finds that there are other

14  mitigating circumstances that should allow the owner of the

15  vessel to secure the release of the vessel to the owner's

16  possession, the court may do so by dismissing the order of

17  impoundment or immobilization with or without cost to the

18  vessel owner.

19  

20  For the purposes of this section, any conviction for a

21  violation of s. 316.193, a previous conviction for the

22  violation of former s. 316.1931, former s. 860.01, or former

23  s. 316.028, or a previous conviction outside this state for

24  driving under the influence, driving while intoxicated,

25  driving with an unlawful blood-alcohol level, driving with an

26  unlawful breath-alcohol level, or any other similar

27  alcohol-related or drug-related traffic offense, is also

28  considered a previous conviction for violation of this

29  section.

30         (11)(a)  Notwithstanding s. 921.241, every judgment of

31  guilty with respect to any offense governed by this section

                                  11

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    Florida Senate - 2006                           CS for SB 2296
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 1  shall comply with this subsection. Each judgment shall be in

 2  writing, signed by the judge, and recorded by the clerk of the

 3  circuit court. The judge shall cause to be affixed to every

 4  such written judgment of guilty, in open court and in the

 5  presence of such judge, the fingerprints of the defendant

 6  against whom such judgment is rendered. Such fingerprints

 7  shall be affixed beneath the judge's signature to any such

 8  judgment. Beneath such fingerprints shall be appended a

 9  certificate in substantially the following form:

10  

11  "I hereby certify that the above and foregoing fingerprints

12  are of the defendant,  (name) , and that they were placed

13  thereon by said defendant in my presence, in open court, this

14  the ___ day of _(month)_________  (year)."

15  

16  Such certificate shall be signed by the judge, whose signature

17  thereto shall be followed by the word "Judge."

18         (b)  Any such written judgment of guilty, or a

19  certified copy thereof, shall be admissible in evidence in the

20  courts of this state as prima facie evidence that the

21  fingerprints appearing thereon and certified by the judge are

22  the fingerprints of the defendant against whom such judgment

23  of guilty was rendered.

24         (c)  At the time the defendant's fingerprints are

25  taken, the judge shall also cause the defendant's social

26  security number to be taken. The defendant's social security

27  number shall be affixed to every written judgment of guilty,

28  in open court, in the presence of such judge, and at the time

29  the judgment is rendered. If the defendant is unable or

30  unwilling to provide his or her social security number, the

31  

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    Florida Senate - 2006                           CS for SB 2296
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 1  reason for its absence shall be indicated on the written

 2  judgment.

 3         Section 3.  This act shall take effect October 1, 2006,

 4  and shall apply to offenses committed on or after that date.

 5  

 6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 7                         Senate Bill 2296

 8                                 

 9  This CS states the term of imprisonment for the fourth DUI or
    BUI offense must be at least one day and one year. This will
10  clarify this term of incarceration is to be served in state
    prison and not in county jail.
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