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 |
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29 | Be It Enacted by the Legislature of the State of Florida: |
30 |
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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 |
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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 |
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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 |
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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 |
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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. |