HB 1243

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


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