Senate Bill sb0232

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    Florida Senate - 2006                                   SB 232

    By Senator Fasano





    11-335-06                                               See HB

  1                      A bill to be entitled

  2         An act relating to lawful testing for alcohol,

  3         chemical substances, or controlled substances;

  4         amending s. 316.1932, F.S.; revising provisions

  5         to notify a person that refusal to submit to a

  6         lawful test of the person's breath, urine, or

  7         blood is a misdemeanor, to conform to changes

  8         made by the act; revising provisions relating

  9         to presumption of consent to submit to a blood

10         test; removing reference to treatment at a

11         medical facility; amending s. 316.1933, F.S.;

12         directing a law enforcement officer to require

13         a person driving or in actual physical control

14         of the motor vehicle to submit to a blood test

15         for the purpose of determining alcoholic

16         content of the blood or the presence of

17         specified chemical or controlled substances if

18         that person has refused or failed to submit to

19         a lawful urine test; amending s. 316.1939,

20         F.S.; removing prior suspension as a condition

21         for the commission of a misdemeanor by refusal

22         to submit to a lawful test of breath, urine, or

23         blood; amending s. 327.352, F.S.; revising

24         provisions to notify a person that refusal to

25         submit to a lawful test of the person's breath,

26         urine, or blood is a misdemeanor, to conform to

27         changes made by the act; revising provisions

28         relating to presumption of consent to submit to

29         a blood test; removing reference to treatment

30         at a medical facility; amending s. 327.353,

31         F.S.; directing a law enforcement officer to

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1         require a person operating or in actual

 2         physical control of a vessel to submit to a

 3         blood test for the purpose of determining

 4         alcoholic content of the blood or the presence

 5         of specified chemical or controlled substances

 6         if that person has refused or failed to submit

 7         to a lawful urine test; amending s. 327.359,

 8         F.S.; removing prior suspension as a condition

 9         for the commission of a misdemeanor by refusal

10         to submit to a lawful test of breath, urine, or

11         blood; providing an effective date.

12  

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

14  

15         Section 1.  Paragraphs (a) and (c) of subsection (1) of

16  section 316.1932, Florida Statutes, are amended to read:

17         316.1932  Tests for alcohol, chemical substances, or

18  controlled substances; implied consent; refusal.--

19         (1)(a)1.a.  Any person who accepts the privilege

20  extended by the laws of this state of operating a motor

21  vehicle within this state is, by so operating such vehicle,

22  deemed to have given his or her consent to submit to an

23  approved chemical test or physical test including, but not

24  limited to, an infrared light test of his or her breath for

25  the purpose of determining the alcoholic content of his or her

26  blood or breath if the person is lawfully arrested for any

27  offense allegedly committed while the person was driving or

28  was in actual physical control of a motor vehicle while under

29  the influence of alcoholic beverages. The chemical or physical

30  breath test must be incidental to a lawful arrest and

31  administered at the request of a law enforcement officer who

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  has reasonable cause to believe such person was driving or was

 2  in actual physical control of the motor vehicle within this

 3  state while under the influence of alcoholic beverages. The

 4  administration of a breath test does not preclude the

 5  administration of another type of test. The person shall be

 6  told that his or her failure to submit to any lawful test of

 7  his or her breath will result in the suspension of the

 8  person's privilege to operate a motor vehicle for a period of

 9  1 year for a first refusal, or for a period of 18 months if

10  the driving privilege of such person has been previously

11  suspended as a result of a refusal to submit to such a test or

12  tests, and shall also be told that if he or she refuses to

13  submit to a lawful test of his or her breath and his or her

14  driving privilege has been previously suspended for a prior

15  refusal to submit to a lawful test of his or her breath,

16  urine, or blood, he or she commits a misdemeanor in addition

17  to any other penalties. The refusal to submit to a chemical or

18  physical breath test upon the request of a law enforcement

19  officer as provided in this section is admissible into

20  evidence in any criminal proceeding.

21         b.  Any person who accepts the privilege extended by

22  the laws of this state of operating a motor vehicle within

23  this state is, by so operating such vehicle, deemed to have

24  given his or her consent to submit to a urine test for the

25  purpose of detecting the presence of chemical substances as

26  set forth in s. 877.111 or controlled substances if the person

27  is lawfully arrested for any offense allegedly committed while

28  the person was driving or was in actual physical control of a

29  motor vehicle while under the influence of chemical substances

30  or controlled substances. The urine test must be incidental to

31  a lawful arrest and administered at a detention facility or

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  any other facility, mobile or otherwise, which is equipped to

 2  administer such tests at the request of a law enforcement

 3  officer who has reasonable cause to believe such person was

 4  driving or was in actual physical control of a motor vehicle

 5  within this state while under the influence of chemical

 6  substances or controlled substances. The urine test shall be

 7  administered at a detention facility or any other facility,

 8  mobile or otherwise, which is equipped to administer such test

 9  in a reasonable manner that will ensure the accuracy of the

10  specimen and maintain the privacy of the individual involved.

11  The administration of a urine test does not preclude the

12  administration of another type of test. The person shall be

13  told that his or her failure to submit to any lawful test of

14  his or her urine will result in the suspension of the person's

15  privilege to operate a motor vehicle for a period of 1 year

16  for the first refusal, or for a period of 18 months if the

17  driving privilege of such person has been previously suspended

18  as a result of a refusal to submit to such a test or tests,

19  and shall also be told that if he or she refuses to submit to

20  a lawful test of his or her urine and his or her driving

21  privilege has been previously suspended for a prior refusal to

22  submit to a lawful test of his or her breath, urine, or blood,

23  he or she commits a misdemeanor in addition to any other

24  penalties. The refusal to submit to a urine test upon the

25  request of a law enforcement officer as provided in this

26  section is admissible into evidence in any criminal

27  proceeding.

28         2.  The Alcohol Testing Program within the Department

29  of Law Enforcement is responsible for the regulation of the

30  operation, inspection, and registration of breath test

31  instruments utilized under the driving and boating under the

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  influence provisions and related provisions located in this

 2  chapter and chapters 322 and 327. The program is responsible

 3  for the regulation of the individuals who operate, inspect,

 4  and instruct on the breath test instruments utilized in the

 5  driving and boating under the influence provisions and related

 6  provisions located in this chapter and chapters 322 and 327.

 7  The program is further responsible for the regulation of blood

 8  analysts who conduct blood testing to be utilized under the

 9  driving and boating under the influence provisions and related

10  provisions located in this chapter and chapters 322 and 327.

11  The program shall:

12         a.  Establish uniform criteria for the issuance of

13  permits to breath test operators, agency inspectors,

14  instructors, blood analysts, and instruments.

15         b.  Have the authority to permit breath test operators,

16  agency inspectors, instructors, blood analysts, and

17  instruments.

18         c.  Have the authority to discipline and suspend,

19  revoke, or renew the permits of breath test operators, agency

20  inspectors, instructors, blood analysts, and instruments.

21         d.  Establish uniform requirements for instruction and

22  curricula for the operation and inspection of approved

23  instruments.

24         e.  Have the authority to specify one approved

25  curriculum for the operation and inspection of approved

26  instruments.

27         f.  Establish a procedure for the approval of breath

28  test operator and agency inspector classes.

29         g.  Have the authority to approve or disapprove breath

30  test instruments and accompanying paraphernalia for use

31  pursuant to the driving and boating under the influence

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  provisions and related provisions located in this chapter and

 2  chapters 322 and 327.

 3         h.  With the approval of the executive director of the

 4  Department of Law Enforcement, make and enter into contracts

 5  and agreements with other agencies, organizations,

 6  associations, corporations, individuals, or federal agencies

 7  as are necessary, expedient, or incidental to the performance

 8  of duties.

 9         i.  Issue final orders which include findings of fact

10  and conclusions of law and which constitute final agency

11  action for the purpose of chapter 120.

12         j.  Enforce compliance with the provisions of this

13  section through civil or administrative proceedings.

14         k.  Make recommendations concerning any matter within

15  the purview of this section, this chapter, chapter 322, or

16  chapter 327.

17         l.  Promulgate rules for the administration and

18  implementation of this section, including definitions of

19  terms.

20         m.  Consult and cooperate with other entities for the

21  purpose of implementing the mandates of this section.

22         n.  Have the authority to approve the type of blood

23  test utilized under the driving and boating under the

24  influence provisions and related provisions located in this

25  chapter and chapters 322 and 327.

26         o.  Have the authority to specify techniques and

27  methods for breath alcohol testing and blood testing utilized

28  under the driving and boating under the influence provisions

29  and related provisions located in this chapter and chapters

30  322 and 327.

31  

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1         p.  Have the authority to approve repair facilities for

 2  the approved breath test instruments, including the authority

 3  to set criteria for approval.

 4  

 5  Nothing in this section shall be construed to supersede

 6  provisions in this chapter and chapters 322 and 327. The

 7  specifications in this section are derived from the power and

 8  authority previously and currently possessed by the Department

 9  of Law Enforcement and are enumerated to conform with the

10  mandates of chapter 99-379, Laws of Florida.

11         (c)  Any person who accepts the privilege extended by

12  the laws of this state of operating a motor vehicle within

13  this state is, by operating such vehicle, deemed to have given

14  his or her consent to submit to an approved blood test for the

15  purpose of determining the alcoholic content of the blood or a

16  blood test for the purpose of determining the presence of

17  chemical substances or controlled substances as provided in

18  this section if there is reasonable cause to believe the

19  person was driving or in actual physical control of a motor

20  vehicle while under the influence of alcoholic beverages or

21  chemical or controlled substances and the person appears for

22  treatment at a hospital, clinic, or other medical facility and

23  the administration of a breath or urine test is impractical or

24  impossible. As used in this paragraph, the term "other medical

25  facility" includes an ambulance or other medical emergency

26  vehicle. The blood test shall be performed in a reasonable

27  manner. Any person who is incapable of refusal by reason of

28  unconsciousness or other mental or physical condition is

29  deemed not to have withdrawn his or her consent to such test.

30  A blood test may be administered whether or not the person is

31  told that his or her failure to submit to such a blood test

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  will result in the suspension of the person's privilege to

 2  operate a motor vehicle upon the public highways of this state

 3  and that a refusal to submit to a lawful test of his or her

 4  blood, if his or her driving privilege has been previously

 5  suspended for refusal to submit to a lawful test of his or her

 6  breath, urine, or blood, is a misdemeanor. Any person who is

 7  capable of refusal shall be told that his or her failure to

 8  submit to such a blood test will result in the suspension of

 9  the person's privilege to operate a motor vehicle for a period

10  of 1 year for a first refusal, or for a period of 18 months if

11  the driving privilege of the person has been suspended

12  previously as a result of a refusal to submit to such a test

13  or tests, and that a refusal to submit to a lawful test of his

14  or her blood, if his or her driving privilege has been

15  previously suspended for a prior refusal to submit to a lawful

16  test of his or her breath, urine, or blood, is a misdemeanor.

17  The refusal to submit to a blood test upon the request of a

18  law enforcement officer is admissible in evidence in any

19  criminal proceeding.

20         Section 2.  Section 316.1933, Florida Statutes, is

21  amended to read:

22         316.1933  Blood test for alcohol, chemical substances,

23  or controlled substances impairment or intoxication in cases

24  of death or serious bodily injury; right to use reasonable

25  force.--

26         (1)(a)  If a law enforcement officer has probable cause

27  to believe that a motor vehicle driven by or in the actual

28  physical control of a person under the influence of alcoholic

29  beverages, any chemical substances, or any controlled

30  substances has caused the death or serious bodily injury of a

31  human being, or if the person driving or in actual physical

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  control of a motor vehicle has refused or failed to submit to

 2  a urine test requested pursuant to s. 316.1932(1)(a)1.b., a

 3  law enforcement officer shall require the person driving or in

 4  actual physical control of the motor vehicle to submit to a

 5  test of the person's blood for the purpose of determining the

 6  alcoholic content thereof or the presence of chemical

 7  substances as set forth in s. 877.111 or any substance

 8  controlled under chapter 893. The law enforcement officer may

 9  use reasonable force if necessary to require such person to

10  submit to the administration of the blood test. The blood test

11  shall be performed in a reasonable manner. Notwithstanding s.

12  316.1932, the testing required by this paragraph need not be

13  incidental to a lawful arrest of the person unless the testing

14  is required because the person refused or failed to submit to

15  a urine test requested pursuant to s. 316.1932(1)(a)1.b.

16         (b)  The term "serious bodily injury" means an injury

17  to any person, including the driver, which consists of a

18  physical condition that creates a substantial risk of death,

19  serious personal disfigurement, or protracted loss or

20  impairment of the function of any bodily member or organ.

21         (2)(a)  Only a physician, certified paramedic,

22  registered nurse, licensed practical nurse, other personnel

23  authorized by a hospital to draw blood, or duly licensed

24  clinical laboratory director, supervisor, technologist, or

25  technician, acting at the request of a law enforcement

26  officer, may withdraw blood for the purpose of determining the

27  alcoholic content thereof or the presence of chemical

28  substances or controlled substances therein. However, the

29  failure of a law enforcement officer to request the withdrawal

30  of blood shall not affect the admissibility of a test of blood

31  withdrawn for medical purposes.

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1         1.  Notwithstanding any provision of law pertaining to

 2  the confidentiality of hospital records or other medical

 3  records, if a health care provider, who is providing medical

 4  care in a health care facility to a person injured in a motor

 5  vehicle crash, becomes aware, as a result of any blood test

 6  performed in the course of that medical treatment, that the

 7  person's blood-alcohol level meets or exceeds the

 8  blood-alcohol level specified in s. 316.193(1)(b), the health

 9  care provider may notify any law enforcement officer or law

10  enforcement agency. Any such notice must be given within a

11  reasonable time after the health care provider receives the

12  test result. Any such notice shall be used only for the

13  purpose of providing the law enforcement officer with

14  reasonable cause to request the withdrawal of a blood sample

15  pursuant to this section.

16         2.  The notice shall consist only of the name of the

17  person being treated, the name of the person who drew the

18  blood, the blood-alcohol level indicated by the test, and the

19  date and time of the administration of the test.

20         3.  Nothing contained in s. 395.3025(4), s. 456.057, or

21  any applicable practice act affects the authority to provide

22  notice under this section, and the health care provider is not

23  considered to have breached any duty owed to the person under

24  s. 395.3025(4), s. 456.057, or any applicable practice act by

25  providing notice or failing to provide notice. It shall not be

26  a breach of any ethical, moral, or legal duty for a health

27  care provider to provide notice or fail to provide notice.

28         4.  A civil, criminal, or administrative action may not

29  be brought against any person or health care provider

30  participating in good faith in the provision of notice or

31  failure to provide notice as provided in this section. Any

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  person or health care provider participating in the provision

 2  of notice or failure to provide notice as provided in this

 3  section shall be immune from any civil or criminal liability

 4  and from any professional disciplinary action with respect to

 5  the provision of notice or failure to provide notice under

 6  this section. Any such participant has the same immunity with

 7  respect to participating in any judicial proceedings resulting

 8  from the notice or failure to provide notice.

 9         (b)  A chemical analysis of the person's blood to

10  determine the alcoholic content thereof must have been

11  performed substantially in accordance with methods approved by

12  the Department of Law Enforcement and by an individual

13  possessing a valid permit issued by the department for this

14  purpose.  The Department of Law Enforcement may approve

15  satisfactory techniques or methods, ascertain the

16  qualifications and competence of individuals to conduct such

17  analyses, and issue permits that are subject to termination or

18  revocation at the discretion of the department.  Any

19  insubstantial differences between approved methods or

20  techniques and actual testing procedures, or any insubstantial

21  defects concerning the permit issued by the department, in any

22  individual case, shall not render the test or test results

23  invalid.

24         (c)  No hospital, clinical laboratory, medical clinic,

25  or similar medical institution or physician, certified

26  paramedic, registered nurse, licensed practical nurse, other

27  personnel authorized by a hospital to draw blood, or duly

28  licensed clinical laboratory director, supervisor,

29  technologist, or technician, or other person assisting a law

30  enforcement officer shall incur any civil or criminal

31  liability as a result of the withdrawal or analysis of a blood

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  specimen pursuant to accepted medical standards when requested

 2  by a law enforcement officer, regardless of whether or not the

 3  subject resisted administration of the test.

 4         (3)(a)  Any criminal charge resulting from the incident

 5  giving rise to the officer's demand for testing shall be tried

 6  concurrently with a charge of any violation arising out of the

 7  same incident, unless, in the discretion of the court, such

 8  charges should be tried separately.  If such charges are tried

 9  separately, the fact that such person refused, resisted,

10  obstructed, or opposed testing shall be admissible at the

11  trial of the criminal offense which gave rise to the demand

12  for testing.

13         (b)  The results of any test administered pursuant to

14  this section for the purpose of detecting the presence of any

15  controlled substance shall not be admissible as evidence in a

16  criminal prosecution for the possession of a controlled

17  substance.

18         (4)  Notwithstanding any provision of law pertaining to

19  the confidentiality of hospital records or other medical

20  records, information relating to the alcoholic content of the

21  blood or the presence of chemical substances or controlled

22  substances in the blood obtained pursuant to this section

23  shall be released to a court, prosecuting attorney, defense

24  attorney, or law enforcement officer in connection with an

25  alleged violation of s. 316.193 upon request for such

26  information.

27         Section 3.  Section 316.1939, Florida Statutes, is

28  amended to read:

29         316.1939  Refusal to submit to testing; penalties.--

30         (1)  Any person who has refused to submit to a chemical

31  or physical test of his or her breath, blood, or urine, as

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  described in s. 316.1932, and whose driving privilege was

 2  previously suspended for a prior refusal to submit to a lawful

 3  test of his or her breath, urine, or blood, and:

 4         (a)  Who the arresting law enforcement officer had

 5  probable cause to believe was driving or in actual physical

 6  control of a motor vehicle in this state while under the

 7  influence of alcoholic beverages, chemical substances, or

 8  controlled substances;

 9         (b)  Who was placed under lawful arrest for a violation

10  of s. 316.193 unless such test was requested pursuant to s.

11  316.1932(1)(c);

12         (c)  Who was informed that, if he or she refused to

13  submit to such test, his or her privilege to operate a motor

14  vehicle would be suspended for a period of 1 year or, in the

15  case of a second or subsequent refusal, for a period of 18

16  months;

17         (d)  Who was informed that a refusal to submit to a

18  lawful test of his or her breath, urine, or blood, if his or

19  her driving privilege has been previously suspended for a

20  prior refusal to submit to a lawful test of his or her breath,

21  urine, or blood, is a misdemeanor; and

22         (e)  Who, after having been so informed, refused to

23  submit to any such test when requested to do so by a law

24  enforcement officer or correctional officer

25  

26  commits a misdemeanor of the first degree, punishable and is

27  subject to punishment as provided in s. 775.082 or s. 775.083.

28         (2)  The disposition of any administrative proceeding

29  that relates to the suspension of a person's driving privilege

30  does not affect a criminal action under this section.

31  

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1         (3)  The disposition of a criminal action under this

 2  section does not affect any administrative proceeding that

 3  relates to the suspension of a person's driving privilege. The

 4  department's records showing that a person's license has been

 5  previously suspended for a prior refusal to submit to a lawful

 6  test of his or her breath, urine, or blood shall be admissible

 7  and shall create a rebuttable presumption of such suspension.

 8         Section 4.  Paragraphs (a) and (c) of subsection (1) of

 9  section 327.352, Florida Statutes, are amended to read:

10         327.352  Tests for alcohol, chemical substances, or

11  controlled substances; implied consent; refusal.--

12         (1)(a)1.  The Legislature declares that the operation

13  of a vessel is a privilege that must be exercised in a

14  reasonable manner. In order to protect the public health and

15  safety, it is essential that a lawful and effective means of

16  reducing the incidence of boating while impaired or

17  intoxicated be established. Therefore, any person who accepts

18  the privilege extended by the laws of this state of operating

19  a vessel within this state is, by so operating such vessel,

20  deemed to have given his or her consent to submit to an

21  approved chemical test or physical test including, but not

22  limited to, an infrared light test of his or her breath for

23  the purpose of determining the alcoholic content of his or her

24  blood or breath if the person is lawfully arrested for any

25  offense allegedly committed while the person was operating a

26  vessel while under the influence of alcoholic beverages. The

27  chemical or physical breath test must be incidental to a

28  lawful arrest and administered at the request of a law

29  enforcement officer who has reasonable cause to believe such

30  person was operating the vessel within this state while under

31  the influence of alcoholic beverages. The administration of a

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  breath test does not preclude the administration of another

 2  type of test. The person shall be told that his or her failure

 3  to submit to any lawful test of his or her breath will result

 4  in a civil penalty of $500, and shall also be told that if he

 5  or she refuses to submit to a lawful test of his or her breath

 6  and he or she has been previously fined for refusal to submit

 7  to any lawful test of his or her breath, urine, or blood, he

 8  or she commits a misdemeanor in addition to any other

 9  penalties. The refusal to submit to a chemical or physical

10  breath test upon the request of a law enforcement officer as

11  provided in this section is admissible into evidence in any

12  criminal proceeding.

13         2.  Any person who accepts the privilege extended by

14  the laws of this state of operating a vessel within this state

15  is, by so operating such vessel, deemed to have given his or

16  her consent to submit to a urine test for the purpose of

17  detecting the presence of chemical substances as set forth in

18  s. 877.111 or controlled substances if the person is lawfully

19  arrested for any offense allegedly committed while the person

20  was operating a vessel while under the influence of chemical

21  substances or controlled substances. The urine test must be

22  incidental to a lawful arrest and administered at a detention

23  facility or any other facility, mobile or otherwise, which is

24  equipped to administer such tests at the request of a law

25  enforcement officer who has reasonable cause to believe such

26  person was operating a vessel within this state while under

27  the influence of chemical substances or controlled substances.

28  The urine test shall be administered at a detention facility

29  or any other facility, mobile or otherwise, which is equipped

30  to administer such test in a reasonable manner that will

31  ensure the accuracy of the specimen and maintain the privacy

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  of the individual involved. The administration of a urine test

 2  does not preclude the administration of another type of test.

 3  The person shall be told that his or her failure to submit to

 4  any lawful test of his or her urine will result in a civil

 5  penalty of $500, and shall also be told that if he or she

 6  refuses to submit to a lawful test of his or her urine and he

 7  or she has been previously fined for refusal to submit to any

 8  lawful test of his or her breath, urine, or blood, he or she

 9  commits a misdemeanor in addition to any other penalties. The

10  refusal to submit to a urine test upon the request of a law

11  enforcement officer as provided in this section is admissible

12  into evidence in any criminal proceeding.

13         (c)  Any person who accepts the privilege extended by

14  the laws of this state of operating a vessel within this state

15  is, by operating such vessel, deemed to have given his or her

16  consent to submit to an approved blood test for the purpose of

17  determining the alcoholic content of the blood or a blood test

18  for the purpose of determining the presence of chemical

19  substances or controlled substances as provided in this

20  section if there is reasonable cause to believe the person was

21  operating a vessel while under the influence of alcoholic

22  beverages or chemical or controlled substances and the person

23  appears for treatment at a hospital, clinic, or other medical

24  facility and the administration of a breath or urine test is

25  impractical or impossible. As used in this paragraph, the term

26  "other medical facility" includes an ambulance or other

27  medical emergency vehicle. The blood test shall be performed

28  in a reasonable manner. Any person who is incapable of refusal

29  by reason of unconsciousness or other mental or physical

30  condition is deemed not to have withdrawn his or her consent

31  to such test. Any person who is capable of refusal shall be

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  told that his or her failure to submit to such a blood test

 2  will result in a civil penalty of $500 and that a refusal to

 3  submit to a lawful test of his or her blood, if he or she has

 4  previously been fined for refusal to submit to any lawful test

 5  of his or her breath, urine, or blood, is a misdemeanor. The

 6  refusal to submit to a blood test upon the request of a law

 7  enforcement officer shall be admissible in evidence in any

 8  criminal proceeding.

 9         Section 5.  Section 327.353, Florida Statutes, is

10  amended to read:

11         327.353  Blood test for alcohol, chemical substances,

12  or controlled substances impairment or intoxication in cases

13  of death or serious bodily injury; right to use reasonable

14  force.--

15         (1)(a)  If a law enforcement officer has probable cause

16  to believe that a vessel operated by a person under the

17  influence of alcoholic beverages, any chemical substances, or

18  any controlled substances has caused the death or serious

19  bodily injury of a human being, or if the person operating or

20  in actual physical control of a vessel has refused or failed

21  to submit to a urine test requested pursuant to s.

22  327.352(1)(a)2., a law enforcement officer shall require the

23  person operating or in actual physical control of the vessel

24  to submit to a test of the person's blood for the purpose of

25  determining the alcoholic content thereof or the presence of

26  chemical substances as set forth in s. 877.111 or any

27  substance controlled under chapter 893. The law enforcement

28  officer may use reasonable force if necessary to require the

29  person to submit to the administration of the blood test. The

30  blood test shall be performed in a reasonable manner.

31  Notwithstanding s. 327.352, the testing required by this

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  paragraph need not be incidental to a lawful arrest of the

 2  person unless the testing is required because the person

 3  refused or failed to submit to a urine test requested pursuant

 4  to s. 327.352(1)(a)2.

 5         (b)  The term "serious bodily injury" means an injury

 6  to any person, including the operator, which consists of a

 7  physical condition that creates a substantial risk of death,

 8  serious personal disfigurement, or protracted loss or

 9  impairment of the function of any bodily member or organ.

10         (2)(a)  Only a physician, certified paramedic,

11  registered nurse, licensed practical nurse, other personnel

12  authorized by a hospital to draw blood, or duly licensed

13  clinical laboratory director, supervisor, technologist, or

14  technician, acting at the request of a law enforcement

15  officer, may withdraw blood for the purpose of determining the

16  alcoholic content thereof or the presence of chemical

17  substances or controlled substances therein. However, the

18  failure of a law enforcement officer to request the withdrawal

19  of blood shall not affect the admissibility of a test of blood

20  withdrawn for medical purposes.

21         (b)  A chemical analysis of the person's blood to

22  determine the alcoholic content thereof must have been

23  performed substantially in accordance with methods approved by

24  the Department of Law Enforcement and by an individual

25  possessing a valid permit issued by the department for this

26  purpose.  The Department of Law Enforcement may approve

27  satisfactory techniques or methods, ascertain the

28  qualifications and competence of individuals to conduct such

29  analyses, and issue permits that are subject to termination or

30  revocation at the discretion of the department.  Insubstantial

31  differences between approved methods or techniques and actual

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  testing procedures, or any insubstantial defects concerning

 2  the permit issued by the department, in any individual case,

 3  do not render the test or test results invalid.

 4         (c)  A hospital, clinical laboratory, medical clinic,

 5  or similar medical institution or physician, certified

 6  paramedic, registered nurse, licensed practical nurse, other

 7  personnel authorized by a hospital to draw blood, or duly

 8  licensed clinical laboratory director, supervisor,

 9  technologist, or technician, or other person assisting a law

10  enforcement officer shall not incur any civil or criminal

11  liability as a result of the withdrawal or analysis of a blood

12  specimen pursuant to accepted medical standards when requested

13  by a law enforcement officer, regardless of whether or not the

14  subject resisted administration of the test.

15         (3)(a)  Any criminal charge resulting from the incident

16  giving rise to the officer's demand for testing shall be tried

17  concurrently with a charge of any violation arising out of the

18  same incident, unless, in the discretion of the court, such

19  charges should be tried separately.  If the charges are tried

20  separately, the fact that the person refused, resisted,

21  obstructed, or opposed testing is admissible at the trial of

22  the criminal offense which gave rise to the demand for

23  testing.

24         (b)  The results of any test administered pursuant to

25  this section for the purpose of detecting the presence of any

26  controlled substance are not admissible as evidence in a

27  criminal prosecution for the possession of a controlled

28  substance.

29         (4)  Notwithstanding any provision of law pertaining to

30  the confidentiality of hospital records or other medical

31  records, information relating to the alcoholic content of the

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1  blood or the presence of chemical substances or controlled

 2  substances in the blood obtained pursuant to this section

 3  shall be released to a court, prosecuting attorney, defense

 4  attorney, or law enforcement officer in connection with an

 5  alleged violation of s. 327.35 upon request for such

 6  information.

 7         Section 6.  Section 327.359, Florida Statutes, is

 8  amended to read:

 9         327.359  Refusal to submit to testing; penalties.--Any

10  person who has refused to submit to a chemical or physical

11  test of his or her breath, blood, or urine, as described in s.

12  327.352, and who has been previously fined for refusal to

13  submit to a lawful test of his or her breath, urine, or blood,

14  and:

15         (1)  Who the arresting law enforcement officer had

16  probable cause to believe was operating or in actual physical

17  control of a vessel in this state while under the influence of

18  alcoholic beverages, chemical substances, or controlled

19  substances;

20         (2)  Who was placed under lawful arrest for a violation

21  of s. 327.35 unless such test was requested pursuant to s.

22  327.352(1)(c);

23         (3)  Who was informed that if he or she refused to

24  submit to such test he or she is subject to a fine of $500;

25         (4)  Who was informed that a refusal to submit to a

26  lawful test of his or her breath, urine, or blood, if he or

27  she has been previously fined for refusal to submit to a

28  lawful test of his or her breath, urine, or blood, is a

29  misdemeanor; and

30  

31  

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    Florida Senate - 2006                                   SB 232
    11-335-06                                               See HB




 1         (5)  Who, after having been so informed, refused to

 2  submit to any such test when requested to do so by a law

 3  enforcement officer or correctional officer

 4  

 5  commits a misdemeanor of the first degree, punishable and is

 6  subject to punishment as provided in s. 775.082 or s. 775.083.

 7         Section 7.  This act shall take effect October 1, 2006.

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