HB 0297CS

CHAMBER ACTION



1The Justice Council recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to driving and boating under the
7influence; amending s. 316.193, F.S.; providing for
8applicability of sanctions; requiring a specified period
9of imprisonment for a fourth or subsequent conviction of
10driving under the influence; prohibiting substitution of
11treatment alternatives in certain circumstances; requiring
12impoundment or immobilization of all vehicles owned by the
13defendant for a specified period; providing for dismissal
14of an impoundment order; requiring records of judgments of
15guilty to include fingerprints and social security
16numbers; amending s. 327.35, F.S.; requiring a specified
17period of imprisonment for a fourth or subsequent
18conviction of boating under the influence; prohibiting
19substitution of treatment alternatives in certain
20circumstances; requiring impoundment or immobilization of
21the vessel operated by or in the actual control of the
22defendant or any one vehicle registered in the defendant's
23name at the time of impoundment or immobilization for a
24specified period; providing for dismissal of an order of
25impoundment or immobilization under certain circumstances
26upon request of an owner who was not operating the vessel;
27providing for dismissal of an impoundment order; requiring
28records of judgments of guilty to include fingerprints and
29social security numbers; providing applicability;
30providing an effective date.
31
32Be It Enacted by the Legislature of the State of Florida:
33
34     Section 1.  Subsection (6) of section 316.193, Florida
35Statutes, is amended, and subsection (13) is added to that
36section, to read:
37     316.193  Driving under the influence; penalties.--
38     (6)  With respect to any person convicted of a violation of
39this section subsection (1), regardless of any penalty imposed
40pursuant to subsection (2), subsection (3), or subsection (4):
41     (a)  For the first conviction, the court shall place the
42defendant on probation for a period not to exceed 1 year and, as
43a condition of such probation, shall order the defendant to
44participate in public service or a community work project for a
45minimum of 50 hours; or the court may order instead, that any
46defendant pay an additional fine of $10 for each hour of public
47service or community work otherwise required, if, after
48consideration of the residence or location of the defendant at
49the time public service or community work is required, payment
50of the fine is in the best interests of the state. However, the
51total period of probation and incarceration may not exceed 1
52year. The court must also, as a condition of probation, order
53the impoundment or immobilization of the vehicle that was
54operated by or in the actual control of the defendant or any one
55vehicle registered in the defendant's name at the time of
56impoundment or immobilization, for a period of 10 days or for
57the unexpired term of any lease or rental agreement that expires
58within 10 days. The impoundment or immobilization must not occur
59concurrently with the incarceration of the defendant. The
60impoundment or immobilization order may be dismissed in
61accordance with paragraph (e), paragraph (f), paragraph (g), or
62paragraph (h).
63     (b)  For the second conviction for an offense that occurs
64within a period of 5 years after the date of a prior conviction
65for violation of this section, the court shall order
66imprisonment for not less than 10 days. The court must also, as
67a condition of probation, order the impoundment or
68immobilization of all vehicles owned by the defendant at the
69time of impoundment or immobilization, for a period of 30 days
70or for the unexpired term of any lease or rental agreement that
71expires within 30 days. The impoundment or immobilization must
72not occur concurrently with the incarceration of the defendant
73and must occur concurrently with the driver's license revocation
74imposed under s. 322.28(2)(a)2. The impoundment or
75immobilization order may be dismissed in accordance with
76paragraph (e), paragraph (f), paragraph (g), or paragraph (h).
77At least 48 hours of confinement must be consecutive.
78     (c)  For the third or subsequent conviction for an offense
79that occurs within a period of 10 years after the date of a
80prior conviction for violation of this section, the court shall
81order imprisonment for not less than 30 days. The court must
82also, as a condition of probation, order the impoundment or
83immobilization of all vehicles owned by the defendant at the
84time of impoundment or immobilization, for a period of 90 days
85or for the unexpired term of any lease or rental agreement that
86expires within 90 days. The impoundment or immobilization shall
87must not occur concurrently with the incarceration of the
88defendant and shall must occur concurrently with the driver's
89license revocation imposed under s. 322.28(2)(a)3. The
90impoundment or immobilization order may be dismissed in
91accordance with paragraph (e), paragraph (f), paragraph (g), or
92paragraph (h). At least 48 hours of confinement must be
93consecutive.
94     (d)  The court must at the time of sentencing the defendant
95issue an order for the impoundment or immobilization of a
96vehicle. Within 7 business days after the date that the court
97issues the order of impoundment or immobilization, the clerk of
98the court must send notice by certified mail, return receipt
99requested, to the registered owner of each vehicle, if the
100registered owner is a person other than the defendant, and to
101each person of record claiming a lien against the vehicle.
102     (e)  A person who owns but was not operating the vehicle
103when the offense occurred may submit to the court a police
104report indicating that the vehicle was stolen at the time of the
105offense or documentation of having purchased the vehicle after
106the offense was committed from an entity other than the
107defendant or the defendant's agent. If the court finds that the
108vehicle was stolen or that the sale was not made to circumvent
109the order and allow the defendant continued access to the
110vehicle, the order must be dismissed and the owner of the
111vehicle will incur no costs. If the court denies the request to
112dismiss the order of impoundment or immobilization, the
113petitioner may request an evidentiary hearing.
114     (f)  A person who owns but was not operating the vehicle
115when the offense occurred, and whose vehicle was stolen or who
116purchased the vehicle after the offense was committed directly
117from the defendant or the defendant's agent, may request an
118evidentiary hearing to determine whether the impoundment or
119immobilization should occur. If the court finds that either the
120vehicle was stolen or the purchase was made without knowledge of
121the offense, that the purchaser had no relationship to the
122defendant other than through the transaction, and that such
123purchase would not circumvent the order and allow the defendant
124continued access to the vehicle, the order must be dismissed and
125the owner of the vehicle will incur no costs.
126     (g)  The court shall also dismiss the order of impoundment
127or immobilization of the vehicle if the court finds that the
128family of the owner of the vehicle has no other private or
129public means of transportation.
130     (h)  The court may also dismiss the order of impoundment or
131immobilization of any vehicles that are owned by the defendant
132but that are operated solely by the employees of the defendant
133or any business owned by the defendant.
134     (i)  All costs and fees for the impoundment or
135immobilization, including the cost of notification, must be paid
136by the owner of the vehicle or, if the vehicle is leased or
137rented, by the person leasing or renting the vehicle, unless the
138impoundment or immobilization order is dismissed. All provisions
139of s. 713.78 shall apply.
140     (j)  The person who owns a vehicle that is impounded or
141immobilized under this paragraph, or a person who has a lien of
142record against such a vehicle and who has not requested a review
143of the impoundment pursuant to paragraph (e), paragraph (f), or
144paragraph (g), may, within 10 days after the date that person
145has knowledge of the location of the vehicle, file a complaint
146in the county in which the owner resides to determine whether
147the vehicle was wrongfully taken or withheld from the owner or
148lienholder. Upon the filing of a complaint, the owner or
149lienholder may have the vehicle released by posting with the
150court a bond or other adequate security equal to the amount of
151the costs and fees for impoundment or immobilization, including
152towing or storage, to ensure the payment of such costs and fees
153if the owner or lienholder does not prevail. When the bond is
154posted and the fee is paid as set forth in s. 28.24, the clerk
155of the court shall issue a certificate releasing the vehicle. At
156the time of release, after reasonable inspection, the owner or
157lienholder must give a receipt to the towing or storage company
158indicating any loss or damage to the vehicle or to the contents
159of the vehicle.
160     (k)  A defendant, in the court's discretion, may be
161required to serve all or any portion of a term of imprisonment
162to which the defendant has been sentenced pursuant to this
163section in a residential alcoholism treatment program or a
164residential drug abuse treatment program. Any time spent in such
165a program must be credited by the court toward the term of
166imprisonment.
167     (l)  For the fourth or subsequent conviction under
168subparagraph (2)(b)3., the court shall order imprisonment for
169not less than 2 years. There shall be no substitution of this
170minimum mandatory term of imprisonment with treatment
171alternatives. However, the court may, with the consent of the
172state, order the defendant to serve a minimum mandatory sentence
173of 1 year and 1 day of incarceration followed by a period of
174probation during which the defendant must attend and
175successfully complete a residential alcohol treatment program, a
176residential drug abuse treatment program, or be placed on
177community control. The court must also, as a condition of
178probation, order the impoundment or immobilization of all
179vehicles owned by the defendant at the time of impoundment or
180immobilization for a period of 120 days or for the unexpired
181term of any lease or rental agreement that expires within 120
182days. The impoundment or immobilization shall not occur
183concurrently with the incarceration of the defendant and shall
184occur concurrently with the driver's license revocation imposed
185under s. 322.28. The impoundment or immobilization order may be
186dismissed in accordance with paragraph (e), paragraph (f),
187paragraph (g), or paragraph (h). At least 48 hours of
188confinement must be consecutive.
189
190For the purposes of this section, any conviction for a violation
191of s. 327.35; a previous conviction for the violation of former
192s. 316.1931, former s. 860.01, or former s. 316.028; or a
193previous conviction outside this state for driving under the
194influence, driving while intoxicated, driving with an unlawful
195blood-alcohol level, driving with an unlawful breath-alcohol
196level, or any other similar alcohol-related or drug-related
197traffic offense, is also considered a previous conviction for
198violation of this section. However, in satisfaction of the fine
199imposed pursuant to this section, the court may, upon a finding
200that the defendant is financially unable to pay either all or
201part of the fine, order that the defendant participate for a
202specified additional period of time in public service or a
203community work project in lieu of payment of that portion of the
204fine which the court determines the defendant is unable to pay.
205In determining such additional sentence, the court shall
206consider the amount of the unpaid portion of the fine and the
207reasonable value of the services to be ordered; however, the
208court may not compute the reasonable value of services at a rate
209less than the federal minimum wage at the time of sentencing.
210     (13)(a)  Notwithstanding s. 921.241, every judgment of
211guilty with respect to any offense governed by this section
212shall comply with this subsection. Each judgment shall be in
213writing, signed by the judge, and recorded by the clerk of the
214circuit court. The judge shall cause to be affixed to every such
215written judgment of guilty, in open court and in the presence of
216such judge, the fingerprints of the defendant against whom such
217judgment is rendered. Such fingerprints shall be affixed beneath
218the judge's signature to any such judgment. Beneath such
219fingerprints shall be appended a certificate in substantially
220the following form:
221
222"I hereby certify that the above and foregoing fingerprints are
223of the defendant,  (name) , and that they were placed thereon by
224said defendant in my presence, in open court, this the ___ day
225of _(month)_________  (year) ."
226
227Such certificate shall be signed by the judge, whose signature
228thereto shall be followed by the word "Judge."
229     (b)  Any such written judgment of guilty, or a certified
230copy thereof, shall be admissible in evidence in the courts of
231this state as prima facie evidence that the fingerprints
232appearing thereon and certified by the judge are the
233fingerprints of the defendant against whom such judgment of
234guilty was rendered.
235     (c)  At the time the defendant's fingerprints are taken,
236the judge shall also cause the defendant's social security
237number to be taken. The defendant's social security number shall
238be affixed to every written judgment of guilty, in open court,
239in the presence of such judge, and at the time the judgment is
240rendered. If the defendant is unable or unwilling to provide his
241or her social security number, the reason for its absence shall
242be indicated on the written judgment.
243     Section 2.  Paragraphs (a) and (c) of subsection (6) of
244section 327.35, Florida Statutes, are amended, paragraphs (j)
245and (k) are added to that subsection, and subsection (11) is
246added to that section, to read:
247     327.35  Boating under the influence; penalties; "designated
248drivers".--
249     (6)  With respect to any person convicted of a violation of
250subsection (1), regardless of any other penalty imposed:
251     (a)  For the first conviction, the court shall place the
252defendant on probation for a period not to exceed 1 year and, as
253a condition of such probation, shall order the defendant to
254participate in public service or a community work project for a
255minimum of 50 hours. The court must also, as a condition of
256probation, order the impoundment or immobilization of the vessel
257that was operated by or in the actual control of the defendant
258or any one vehicle registered in the defendant's name at the
259time of impoundment or immobilization, for a period of 10 days
260or for the unexpired term of any lease or rental agreement that
261expires within 10 days. The impoundment or immobilization must
262not occur concurrently with the incarceration of the defendant.
263The impoundment or immobilization order may be dismissed in
264accordance with paragraph (e) or paragraph (f). The total period
265of probation and incarceration may not exceed 1 year.
266     (c)  For the third or subsequent conviction for an offense
267that occurs within a period of 10 years after the date of a
268prior conviction for violation of this section, the court shall
269order imprisonment for not less than 30 days. The court must
270also, as a condition of probation, order the impoundment or
271immobilization of the vessel that was operated by or in the
272actual control of the defendant or any one vehicle registered in
273the defendant's name at the time of impoundment or
274immobilization, for a period of 90 days or for the unexpired
275term of any lease or rental agreement that expires within 90
276days. The impoundment or immobilization shall must not occur
277concurrently with the incarceration of the defendant. The
278impoundment or immobilization order may be dismissed in
279accordance with paragraph (e) or paragraph (f). At least 48
280hours of confinement must be consecutive.
281     (j)  For the fourth or subsequent conviction under
282subparagraph (2)(b)3., the court shall order imprisonment for
283not less than 2 years. There shall be no substitution of this
284minimum mandatory term of imprisonment with treatment
285alternatives. However, the court may, with the consent of the
286state, order the defendant to serve a minimum mandatory sentence
287of 1 year and 1 day of incarceration followed by a period of
288probation during which the defendant must attend and
289successfully complete a residential alcohol treatment program, a
290residential drug abuse treatment program, or be placed on
291community control. The court must also, as a condition of
292probation, order the impoundment or immobilization of the vessel
293that was operated by or in the actual control of the defendant
294or any one vehicle registered in the defendant's name at the
295time of impoundment or immobilization for a period of 120 days
296or for the unexpired term of any lease or rental agreement that
297expires within 120 days. The impoundment or immobilization shall
298not occur concurrently with the incarceration of the defendant.
299The impoundment or immobilization order may be dismissed in
300accordance with paragraph (e) or paragraph (f). At least 48
301hours of confinement must be consecutive.
302     (k)  A person who owns but was not operating the vessel
303when an offense under this section occurred may request an
304evidentiary hearing to determine whether the impoundment or
305immobilization should occur. If the court finds that the owner
306was unaware of the defendant's prior conviction and sentence
307under paragraph (a), paragraph (b), paragraph (c), or paragraph
308(j) or if the court finds that there are other mitigating
309circumstances that should allow the owner of the vessel to
310secure the release of the vessel to the owner's possession, the
311court may do so by dismissing the order of impoundment or
312immobilization with or without cost to the vessel owner.
313
314For the purposes of this section, any conviction for a violation
315of s. 316.193, a previous conviction for the violation of former
316s. 316.1931, former s. 860.01, or former s. 316.028, or a
317previous conviction outside this state for driving under the
318influence, driving while intoxicated, driving with an unlawful
319blood-alcohol level, driving with an unlawful breath-alcohol
320level, or any other similar alcohol-related or drug-related
321traffic offense, is also considered a previous conviction for
322violation of this section.
323     (11)(a)  Notwithstanding s. 921.241, every judgment of
324guilty with respect to any offense governed by this section
325shall comply with this subsection. Each judgment shall be in
326writing, signed by the judge, and recorded by the clerk of the
327circuit court. The judge shall cause to be affixed to every such
328written judgment of guilty, in open court and in the presence of
329such judge, the fingerprints of the defendant against whom such
330judgment is rendered. Such fingerprints shall be affixed beneath
331the judge's signature to any such judgment. Beneath such
332fingerprints shall be appended a certificate in substantially
333the following form:
334
335"I hereby certify that the above and foregoing fingerprints are
336of the defendant,  (name) , and that they were placed thereon by
337said defendant in my presence, in open court, this the ___ day
338of _(month)_________  (year) ."
339
340Such certificate shall be signed by the judge, whose signature
341thereto shall be followed by the word "Judge."
342     (b)  Any such written judgment of guilty, or a certified
343copy thereof, shall be admissible in evidence in the courts of
344this state as prima facie evidence that the fingerprints
345appearing thereon and certified by the judge are the
346fingerprints of the defendant against whom such judgment of
347guilty was rendered.
348     (c)  At the time the defendant's fingerprints are taken,
349the judge shall also cause the defendant's social security
350number to be taken. The defendant's social security number shall
351be affixed to every written judgment of guilty, in open court,
352in the presence of such judge, and at the time the judgment is
353rendered. If the defendant is unable or unwilling to provide his
354or her social security number, the reason for its absence shall
355be indicated on the written judgment.
356     Section 3.  This act shall take effect October 1, 2006, and
357shall apply to offenses committed on or after that date.


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