| 1 | A bill to be entitled |
| 2 | An act relating to driving and boating under the |
| 3 | influence; providing a short title; amending s. 316.193, |
| 4 | F.S.; revising the applicability of sanctions; requiring a |
| 5 | specified period of imprisonment for a fourth or |
| 6 | subsequent conviction of driving under the influence; |
| 7 | prohibiting substitution of treatment alternatives in |
| 8 | certain circumstances; requiring impoundment or |
| 9 | immobilization of all vehicles owned by the defendant for |
| 10 | a specified period; providing for dismissal of an |
| 11 | impoundment order; requiring records of judgments of |
| 12 | guilty to include fingerprints and social security |
| 13 | numbers; amending s. 327.35, F.S.; revising the |
| 14 | applicability of sanctions; requiring a specified period |
| 15 | of imprisonment for a fourth or subsequent conviction of |
| 16 | boating under the influence; prohibiting substitution of |
| 17 | treatment alternatives in certain circumstances; requiring |
| 18 | impoundment or immobilization of the vessel operated by or |
| 19 | in the actual control of the defendant or any one vehicle |
| 20 | registered in the defendant's name at the time of |
| 21 | impoundment or immobilization for a specified period; |
| 22 | providing for dismissal of an order of impoundment or |
| 23 | immobilization under certain circumstances upon request of |
| 24 | an owner who was not operating the vessel; providing for |
| 25 | dismissal of an impoundment order; requiring records of |
| 26 | judgments of guilty to include fingerprints and social |
| 27 | security numbers; providing an effective date. |
| 28 |
|
| 29 | Be It Enacted by the Legislature of the State of Florida: |
| 30 |
|
| 31 | Section 1. This act may be cited as "The Barry and Sydney |
| 32 | Mazer Act." |
| 33 | Section 2. Subsection (6) of section 316.193, Florida |
| 34 | Statutes, is amended, and subsection (13) is added to that |
| 35 | section, to read: |
| 36 | 316.193 Driving under the influence; penalties.-- |
| 37 | (6) With respect to any person convicted of a violation of |
| 38 | this section subsection (1), regardless of any penalty imposed |
| 39 | pursuant to subsection (2), subsection (3), or subsection (4): |
| 40 | (a) For the first conviction, the court shall place the |
| 41 | defendant on probation for a period not to exceed 1 year and, as |
| 42 | a condition of such probation, shall order the defendant to |
| 43 | participate in public service or a community work project for a |
| 44 | minimum of 50 hours; or the court may order instead, that any |
| 45 | defendant pay an additional fine of $10 for each hour of public |
| 46 | service or community work otherwise required, if, after |
| 47 | consideration of the residence or location of the defendant at |
| 48 | the time public service or community work is required, payment |
| 49 | of the fine is in the best interests of the state. However, the |
| 50 | total period of probation and incarceration may not exceed 1 |
| 51 | year. The court must also, as a condition of probation, order |
| 52 | the impoundment or immobilization of the vehicle that was |
| 53 | operated by or in the actual control of the defendant or any one |
| 54 | vehicle registered in the defendant's name at the time of |
| 55 | impoundment or immobilization, for a period of 10 days or for |
| 56 | the unexpired term of any lease or rental agreement that expires |
| 57 | within 10 days. The impoundment or immobilization must not occur |
| 58 | concurrently with the incarceration of the defendant. The |
| 59 | impoundment or immobilization order may be dismissed in |
| 60 | accordance with paragraph (e), paragraph (f), paragraph (g), or |
| 61 | paragraph (h). |
| 62 | (b) For the second conviction for an offense that occurs |
| 63 | within a period of 5 years after the date of a prior conviction |
| 64 | for violation of this section, the court shall order |
| 65 | imprisonment for not less than 10 days. The court must also, as |
| 66 | a condition of probation, order the impoundment or |
| 67 | immobilization of all vehicles owned by the defendant at the |
| 68 | time of impoundment or immobilization, for a period of 30 days |
| 69 | or for the unexpired term of any lease or rental agreement that |
| 70 | expires within 30 days. The impoundment or immobilization must |
| 71 | not occur concurrently with the incarceration of the defendant |
| 72 | and must occur concurrently with the driver's license revocation |
| 73 | imposed under s. 322.28(2)(a)2. The impoundment or |
| 74 | immobilization order may be dismissed in accordance with |
| 75 | paragraph (e), paragraph (f), paragraph (g), or paragraph (h). |
| 76 | At least 48 hours of confinement must be consecutive. |
| 77 | (c) For the third or subsequent conviction for an offense |
| 78 | that occurs within a period of 10 years after the date of a |
| 79 | prior conviction for violation of this section, the court shall |
| 80 | order imprisonment for not less than 30 days. The court must |
| 81 | also, as a condition of probation, order the impoundment or |
| 82 | immobilization of all vehicles owned by the defendant at the |
| 83 | time of impoundment or immobilization, for a period of 90 days |
| 84 | or for the unexpired term of any lease or rental agreement that |
| 85 | expires within 90 days. The impoundment or immobilization may |
| 86 | must not occur concurrently with the incarceration of the |
| 87 | defendant and shall must occur concurrently with the driver's |
| 88 | license revocation imposed under s. 322.28(2)(a)3. The |
| 89 | impoundment or immobilization order may be dismissed in |
| 90 | accordance with paragraph (e), paragraph (f), paragraph (g), or |
| 91 | paragraph (h). At least 48 hours of confinement must be |
| 92 | consecutive. |
| 93 | (d) The court must at the time of sentencing the defendant |
| 94 | issue an order for the impoundment or immobilization of a |
| 95 | vehicle. Within 7 business days after the date that the court |
| 96 | issues the order of impoundment or immobilization, the clerk of |
| 97 | the court must send notice by certified mail, return receipt |
| 98 | requested, to the registered owner of each vehicle, if the |
| 99 | registered owner is a person other than the defendant, and to |
| 100 | each person of record claiming a lien against the vehicle. |
| 101 | (e) A person who owns but was not operating the vehicle |
| 102 | when the offense occurred may submit to the court a police |
| 103 | report indicating that the vehicle was stolen at the time of the |
| 104 | offense or documentation of having purchased the vehicle after |
| 105 | the offense was committed from an entity other than the |
| 106 | defendant or the defendant's agent. If the court finds that the |
| 107 | vehicle was stolen or that the sale was not made to circumvent |
| 108 | the order and allow the defendant continued access to the |
| 109 | vehicle, the order must be dismissed and the owner of the |
| 110 | vehicle will incur no costs. If the court denies the request to |
| 111 | dismiss the order of impoundment or immobilization, the |
| 112 | petitioner may request an evidentiary hearing. |
| 113 | (f) A person who owns but was not operating the vehicle |
| 114 | when the offense occurred, and whose vehicle was stolen or who |
| 115 | purchased the vehicle after the offense was committed directly |
| 116 | from the defendant or the defendant's agent, may request an |
| 117 | evidentiary hearing to determine whether the impoundment or |
| 118 | immobilization should occur. If the court finds that either the |
| 119 | vehicle was stolen or the purchase was made without knowledge of |
| 120 | the offense, that the purchaser had no relationship to the |
| 121 | defendant other than through the transaction, and that such |
| 122 | purchase would not circumvent the order and allow the defendant |
| 123 | continued access to the vehicle, the order must be dismissed and |
| 124 | the owner of the vehicle will incur no costs. |
| 125 | (g) The court shall also dismiss the order of impoundment |
| 126 | or immobilization of the vehicle if the court finds that the |
| 127 | family of the owner of the vehicle has no other private or |
| 128 | public means of transportation. |
| 129 | (h) The court may also dismiss the order of impoundment or |
| 130 | immobilization of any vehicles that are owned by the defendant |
| 131 | but that are operated solely by the employees of the defendant |
| 132 | or any business owned by the defendant. |
| 133 | (i) All costs and fees for the impoundment or |
| 134 | immobilization, including the cost of notification, must be paid |
| 135 | by the owner of the vehicle or, if the vehicle is leased or |
| 136 | rented, by the person leasing or renting the vehicle, unless the |
| 137 | impoundment or immobilization order is dismissed. All provisions |
| 138 | of s. 713.78 shall apply. |
| 139 | (j) The person who owns a vehicle that is impounded or |
| 140 | immobilized under this paragraph, or a person who has a lien of |
| 141 | record against such a vehicle and who has not requested a review |
| 142 | of the impoundment pursuant to paragraph (e), paragraph (f), or |
| 143 | paragraph (g), may, within 10 days after the date that person |
| 144 | has knowledge of the location of the vehicle, file a complaint |
| 145 | in the county in which the owner resides to determine whether |
| 146 | the vehicle was wrongfully taken or withheld from the owner or |
| 147 | lienholder. Upon the filing of a complaint, the owner or |
| 148 | lienholder may have the vehicle released by posting with the |
| 149 | court a bond or other adequate security equal to the amount of |
| 150 | the costs and fees for impoundment or immobilization, including |
| 151 | towing or storage, to ensure the payment of such costs and fees |
| 152 | if the owner or lienholder does not prevail. When the bond is |
| 153 | posted and the fee is paid as set forth in s. 28.24, the clerk |
| 154 | of the court shall issue a certificate releasing the vehicle. At |
| 155 | the time of release, after reasonable inspection, the owner or |
| 156 | lienholder must give a receipt to the towing or storage company |
| 157 | indicating any loss or damage to the vehicle or to the contents |
| 158 | of the vehicle. |
| 159 | (k) A defendant, in the court's discretion, may be |
| 160 | required to serve all or any portion of a term of imprisonment |
| 161 | to which the defendant has been sentenced pursuant to this |
| 162 | section in a residential alcoholism treatment program or a |
| 163 | residential drug abuse treatment program. Any time spent in such |
| 164 | a program must be credited by the court toward the term of |
| 165 | imprisonment. |
| 166 | (l) For the fourth or subsequent conviction under |
| 167 | subparagraph (2)(b)3., the court shall order imprisonment for |
| 168 | not less than 2 years. Another punishment may not be substituted |
| 169 | for this minimum mandatory term of imprisonment with treatment |
| 170 | alternatives. However, the court may, with the consent of the |
| 171 | state, order the defendant to serve a minimum mandatory sentence |
| 172 | of 1 year and 1 day of incarceration followed by a period of |
| 173 | probation during which the defendant must attend and |
| 174 | successfully complete a residential alcohol treatment program or |
| 175 | a residential drug abuse treatment program or be placed on |
| 176 | community control. The court must also, as a condition of |
| 177 | probation, order the impoundment or immobilization of all |
| 178 | vehicles owned by the defendant at the time of impoundment or |
| 179 | immobilization for a period of 120 days or for the unexpired |
| 180 | term of any lease or rental agreement that expires within 120 |
| 181 | days. The impoundment or immobilization may not occur |
| 182 | concurrently with the incarceration of the defendant and shall |
| 183 | occur concurrently with the driver's license revocation imposed |
| 184 | under s. 322.28. The impoundment or immobilization order may be |
| 185 | dismissed in accordance with paragraph (e), paragraph (f), |
| 186 | paragraph (g), or paragraph (h). At least 48 hours of |
| 187 | confinement must be consecutive. |
| 188 |
|
| 189 | For the purposes of this section, any conviction for a violation |
| 190 | of s. 327.35; a previous conviction for the violation of former |
| 191 | s. 316.1931, former s. 860.01, or former s. 316.028; or a |
| 192 | previous conviction outside this state for driving under the |
| 193 | influence, driving while intoxicated, driving with an unlawful |
| 194 | blood-alcohol level, driving with an unlawful breath-alcohol |
| 195 | level, or any other similar alcohol-related or drug-related |
| 196 | traffic offense, is also considered a previous conviction for |
| 197 | violation of this section. However, in satisfaction of the fine |
| 198 | imposed pursuant to this section, the court may, upon a finding |
| 199 | that the defendant is financially unable to pay either all or |
| 200 | part of the fine, order that the defendant participate for a |
| 201 | specified additional period of time in public service or a |
| 202 | community work project in lieu of payment of that portion of the |
| 203 | fine which the court determines the defendant is unable to pay. |
| 204 | In determining such additional sentence, the court shall |
| 205 | consider the amount of the unpaid portion of the fine and the |
| 206 | reasonable value of the services to be ordered; however, the |
| 207 | court may not compute the reasonable value of services at a rate |
| 208 | less than the federal minimum wage at the time of sentencing. |
| 209 | (13)(a) Notwithstanding s. 921.241, every judgment of |
| 210 | guilty with respect to any offense governed by this section |
| 211 | shall comply with this subsection. Each judgment shall be in |
| 212 | writing, signed by the judge, and recorded by the clerk of the |
| 213 | circuit court. The judge shall cause to be affixed to every such |
| 214 | written judgment of guilty, in open court and in the presence of |
| 215 | such judge, the fingerprints of the defendant against whom such |
| 216 | judgment is rendered. Such fingerprints shall be affixed beneath |
| 217 | the judge's signature to any such judgment. Beneath such |
| 218 | fingerprints shall be appended a certificate in substantially |
| 219 | the following form: |
| 220 |
|
| 221 | "I hereby certify that the above and foregoing fingerprints |
| 222 | are of the defendant, (name) , and that they were placed |
| 223 | thereon by said defendant in my presence, in open court, |
| 224 | this the ___ day of _(month)_________ (year) ." |
| 225 |
|
| 226 | Such certificate shall be signed by the judge, whose signature |
| 227 | thereto shall be followed by the word "Judge." |
| 228 | (b) Any such written judgment of guilty, or a certified |
| 229 | copy thereof, is admissible in evidence in the courts of this |
| 230 | state as prima facie evidence that the fingerprints appearing |
| 231 | thereon and certified by the judge are the fingerprints of the |
| 232 | defendant against whom such judgment of guilty was rendered. |
| 233 | (c) At the time the defendant's fingerprints are taken, |
| 234 | the judge shall also cause the defendant's social security |
| 235 | number to be taken. The defendant's social security number shall |
| 236 | be affixed to every written judgment of guilty, in open court, |
| 237 | in the presence of such judge, and at the time the judgment is |
| 238 | rendered. If the defendant is unable or unwilling to provide his |
| 239 | or her social security number, the reason for its absence shall |
| 240 | be indicated on the written judgment. |
| 241 | Section 3. Paragraphs (a) and (c) of subsection (6) of |
| 242 | section 327.35, Florida Statutes, are amended, paragraphs (j) |
| 243 | and (k) are added to that subsection, and subsection (11) is |
| 244 | added to that section, to read: |
| 245 | 327.35 Boating under the influence; penalties; "designated |
| 246 | drivers".-- |
| 247 | (6) With respect to any person convicted of a violation of |
| 248 | subsection (1), regardless of any other penalty imposed: |
| 249 | (a) For the first conviction, the court shall place the |
| 250 | defendant on probation for a period not to exceed 1 year and, as |
| 251 | a condition of such probation, shall order the defendant to |
| 252 | participate in public service or a community work project for a |
| 253 | minimum of 50 hours. The court must also, as a condition of |
| 254 | probation, order the impoundment or immobilization of the vessel |
| 255 | that was operated by or in the actual control of the defendant |
| 256 | or any one vehicle registered in the defendant's name at the |
| 257 | time of impoundment or immobilization, for a period of 10 days |
| 258 | or for the unexpired term of any lease or rental agreement that |
| 259 | expires within 10 days. The impoundment or immobilization must |
| 260 | not occur concurrently with the incarceration of the defendant. |
| 261 | The impoundment or immobilization order may be dismissed in |
| 262 | accordance with paragraph (e) or paragraph (f). The total period |
| 263 | of probation and incarceration may not exceed 1 year. |
| 264 | (c) For the third or subsequent conviction for an offense |
| 265 | that occurs within a period of 10 years after the date of a |
| 266 | prior conviction for violation of this section, the court shall |
| 267 | order imprisonment for not less than 30 days. The court must |
| 268 | also, as a condition of probation, order the impoundment or |
| 269 | immobilization of the vessel that was operated by or in the |
| 270 | actual control of the defendant or any one vehicle registered in |
| 271 | the defendant's name at the time of impoundment or |
| 272 | immobilization, for a period of 90 days or for the unexpired |
| 273 | term of any lease or rental agreement that expires within 90 |
| 274 | days. The impoundment or immobilization may must not occur |
| 275 | concurrently with the incarceration of the defendant. The |
| 276 | impoundment or immobilization order may be dismissed in |
| 277 | accordance with paragraph (e) or paragraph (f). At least 48 |
| 278 | hours of confinement must be consecutive. |
| 279 | (j) For the fourth or subsequent conviction under |
| 280 | subparagraph (2)(b)3., the court shall order imprisonment for |
| 281 | not less than 2 years. Another punishment may not be substituted |
| 282 | for this minimum mandatory term of imprisonment with treatment |
| 283 | alternatives. However, the court may, with the consent of the |
| 284 | state, order the defendant to serve a minimum mandatory sentence |
| 285 | of 1 year and 1 day of incarceration followed by a period of |
| 286 | probation during which the defendant must attend and |
| 287 | successfully complete a residential alcohol treatment program or |
| 288 | a residential drug abuse treatment program or be placed on |
| 289 | community control. The court must also, as a condition of |
| 290 | probation, order the impoundment or immobilization of the vessel |
| 291 | that was operated by or in the actual control of the defendant |
| 292 | or any one vehicle registered in the defendant's name at the |
| 293 | time of impoundment or immobilization for a period of 120 days |
| 294 | or for the unexpired term of any lease or rental agreement that |
| 295 | expires within 120 days. The impoundment or immobilization may |
| 296 | not occur concurrently with the incarceration of the defendant. |
| 297 | The impoundment or immobilization order may be dismissed in |
| 298 | accordance with paragraph (e) or paragraph (f). At least 48 |
| 299 | hours of confinement must be consecutive. |
| 300 | (k) A person who owns but was not operating the vessel |
| 301 | when an offense under this section occurred may request an |
| 302 | evidentiary hearing to determine whether the impoundment or |
| 303 | immobilization should occur. If the court finds that the owner |
| 304 | was unaware of the defendant's prior conviction and sentence |
| 305 | under paragraph (a), paragraph (b), paragraph (c), or paragraph |
| 306 | (j) or if the court finds that there are other mitigating |
| 307 | circumstances that should allow the owner of the vessel to |
| 308 | secure the release of the vessel to the owner's possession, the |
| 309 | court may do so by dismissing the order of impoundment or |
| 310 | immobilization with or without cost to the vessel owner. |
| 311 |
|
| 312 | For the purposes of this section, any conviction for a violation |
| 313 | of s. 316.193, a previous conviction for the violation of former |
| 314 | s. 316.1931, former s. 860.01, or former s. 316.028, or a |
| 315 | previous conviction outside this state for driving under the |
| 316 | influence, driving while intoxicated, driving with an unlawful |
| 317 | blood-alcohol level, driving with an unlawful breath-alcohol |
| 318 | level, or any other similar alcohol-related or drug-related |
| 319 | traffic offense, is also considered a previous conviction for |
| 320 | violation of this section. |
| 321 | (11)(a) Notwithstanding s. 921.241, every judgment of |
| 322 | guilty with respect to any offense governed by this section |
| 323 | shall comply with this subsection. Each judgment shall be in |
| 324 | writing, signed by the judge, and recorded by the clerk of the |
| 325 | circuit court. The judge shall cause to be affixed to every such |
| 326 | written judgment of guilty, in open court and in the presence of |
| 327 | such judge, the fingerprints of the defendant against whom such |
| 328 | judgment is rendered. Such fingerprints shall be affixed beneath |
| 329 | the judge's signature to any such judgment. Beneath such |
| 330 | fingerprints shall be appended a certificate in substantially |
| 331 | the following form: |
| 332 |
|
| 333 | "I hereby certify that the above and foregoing fingerprints |
| 334 | are of the defendant, (name) , and that they were placed |
| 335 | thereon by said defendant in my presence, in open court, |
| 336 | this the ___ day of _(month)_________ (year) ." |
| 337 |
|
| 338 | Such certificate shall be signed by the judge, whose signature |
| 339 | thereto shall be followed by the word "Judge." |
| 340 | (b) Any such written judgment of guilty, or a certified |
| 341 | copy thereof, is admissible in evidence in the courts of this |
| 342 | state as prima facie evidence that the fingerprints appearing |
| 343 | thereon and certified by the judge are the fingerprints of the |
| 344 | defendant against whom such judgment of guilty was rendered. |
| 345 | (c) At the time the defendant's fingerprints are taken, |
| 346 | the judge shall also cause the defendant's social security |
| 347 | number to be taken. The defendant's social security number shall |
| 348 | be affixed to every written judgment of guilty, in open court, |
| 349 | in the presence of such judge, and at the time the judgment is |
| 350 | rendered. If the defendant is unable or unwilling to provide his |
| 351 | or her social security number, the reason for its absence shall |
| 352 | be indicated on the written judgment. |
| 353 | Section 4. This act shall take effect October 1, 2007. |