Senate Bill sb2368
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Florida Senate - 2007 SB 2368
By Senator Wilson
33-370-07
1 A bill to be entitled
2 An act relating to the offense of driving under
3 the influence; amending s. 316.193, F.S.;
4 lowering the blood-alcohol level required from
5 0.08 to 0.04 for an individual to be guilty of
6 the offense; amending s. 316.1934, F.S.;
7 conforming provisions relating to presumptions;
8 amending s. 322.2615, F.S.; conforming
9 provisions relating to the suspension of a
10 driver's license; amending s. 322.64, F.S.;
11 conforming provisions relating to commercial
12 driver's licenses; amending s. 322.291, F.S.;
13 conforming provisions relating to required
14 driver improvement schools or DUI programs;
15 amending s. 327.35, F.S.; lowering the
16 blood-alcohol level required for an individual
17 to be guilty of boating under the influence, to
18 conform to the levels for driving under the
19 influence; reenacting s. 316.1932(1)(f), F.S.,
20 relating to tests for alcohol, chemical
21 substances, or controlled substances, to
22 incorporate the amendments made to s. 316.193,
23 F.S., in a reference thereto; reenacting s.
24 316.1933(2)(a), F.S., relating to blood tests
25 for impairment in cases of death or serious
26 bodily injury, to incorporate the amendments
27 made to s. 316.193, F.S., in a reference
28 thereto; providing an effective date.
29
30 Be It Enacted by the Legislature of the State of Florida:
31
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1 Section 1. Subsections (1) and (9) of section 316.193,
2 Florida Statutes, are amended to read:
3 316.193 Driving under the influence; penalties.--
4 (1) A person is guilty of the offense of driving under
5 the influence and is subject to punishment as provided in
6 subsection (2) if the person is driving or in actual physical
7 control of a vehicle within this state and:
8 (a) The person is under the influence of alcoholic
9 beverages, any chemical substance set forth in s. 877.111, or
10 any substance controlled under chapter 893, when affected to
11 the extent that the person's normal faculties are impaired;
12 (b) The person has a blood-alcohol level of 0.04 0.08
13 or more grams of alcohol per 100 milliliters of blood; or
14 (c) The person has a breath-alcohol level of 0.04 0.08
15 or more grams of alcohol per 210 liters of breath.
16 (9) A person who is arrested for a violation of this
17 section may not be released from custody:
18 (a) Until the person is no longer under the influence
19 of alcoholic beverages, any chemical substance set forth in s.
20 877.111, or any substance controlled under chapter 893 and
21 affected to the extent that his or her normal faculties are
22 impaired;
23 (b) Until the person's blood-alcohol level or
24 breath-alcohol level is less than 0.04 0.05; or
25 (c) Until 8 hours have elapsed from the time the
26 person was arrested.
27 Section 2. Subsection (2) of section 316.1934, Florida
28 Statutes, is amended to read:
29 316.1934 Presumption of impairment; testing methods.--
30 (2) At the trial of any civil or criminal action or
31 proceeding arising out of acts alleged to have been committed
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1 by any person while driving, or in actual physical control of,
2 a vehicle while under the influence of alcoholic beverages or
3 controlled substances, when affected to the extent that the
4 person's normal faculties were impaired or to the extent that
5 he or she was deprived of full possession of his or her normal
6 faculties, the results of any test administered in accordance
7 with s. 316.1932 or s. 316.1933 and this section are
8 admissible into evidence when otherwise admissible, and the
9 amount of alcohol in the person's blood or breath at the time
10 alleged, as shown by chemical analysis of the person's blood,
11 or by chemical or physical test of the person's breath, gives
12 rise to the following presumptions:
13 (a) If there was at that time a blood-alcohol level or
14 breath-alcohol level of 0.05 or less than 0.04, it is presumed
15 that the person was not under the influence of alcoholic
16 beverages to the extent that his or her normal faculties were
17 impaired.
18 (b) If there was at that time a blood-alcohol level or
19 breath-alcohol level in excess of 0.05 but less than 0.08,
20 that fact does not give rise to any presumption that the
21 person was or was not under the influence of alcoholic
22 beverages to the extent that his or her normal faculties were
23 impaired but may be considered with other competent evidence
24 in determining whether the person was under the influence of
25 alcoholic beverages to the extent that his or her normal
26 faculties were impaired.
27 (b)(c) If there was at that time a blood-alcohol level
28 or breath-alcohol level of 0.04 0.08 or higher, that fact is
29 prima facie evidence that the person was under the influence
30 of alcoholic beverages to the extent that his or her normal
31 faculties were impaired. Moreover, such person who has a
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1 blood-alcohol level or breath-alcohol level of 0.04 0.08 or
2 higher is guilty of driving, or being in actual physical
3 control of, a motor vehicle, with an unlawful blood-alcohol
4 level or breath-alcohol level.
5
6 The presumptions provided in this subsection do not limit the
7 introduction of any other competent evidence bearing upon the
8 question of whether the person was under the influence of
9 alcoholic beverages to the extent that his or her normal
10 faculties were impaired.
11 Section 3. Section 322.2615, Florida Statutes, is
12 amended to read:
13 322.2615 Suspension of license; right to review.--
14 (1)(a) A law enforcement officer or correctional
15 officer shall, on behalf of the department, suspend the
16 driving privilege of a person who is driving or in actual
17 physical control of a motor vehicle and who has an unlawful
18 blood-alcohol level or breath-alcohol level of 0.04 0.08 or
19 higher, or of a person who has refused to submit to a urine
20 test or a test of his or her breath-alcohol or blood-alcohol
21 level. The officer shall take the person's driver's license
22 and issue the person a 10-day temporary permit if the person
23 is otherwise eligible for the driving privilege and shall
24 issue the person a notice of suspension. If a blood test has
25 been administered, the officer or the agency employing the
26 officer shall transmit such results to the department within 5
27 days after receipt of the results. If the department then
28 determines that the person had a blood-alcohol level or
29 breath-alcohol level of 0.04 0.08 or higher, the department
30 shall suspend the person's driver's license pursuant to
31 subsection (3).
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1 (b) The suspension under paragraph (a) shall be
2 pursuant to, and the notice of suspension shall inform the
3 driver of, the following:
4 1.a. The driver refused to submit to a lawful breath,
5 blood, or urine test and his or her driving privilege is
6 suspended for a period of 1 year for a first refusal or for a
7 period of 18 months if his or her driving privilege has been
8 previously suspended as a result of a refusal to submit to
9 such a test; or
10 b. The driver was driving or in actual physical
11 control of a motor vehicle and had an unlawful blood-alcohol
12 level or breath-alcohol level of 0.04 0.08 or higher and his
13 or her driving privilege is suspended for a period of 6 months
14 for a first offense or for a period of 1 year if his or her
15 driving privilege has been previously suspended under this
16 section.
17 2. The suspension period shall commence on the date of
18 issuance of the notice of suspension.
19 3. The driver may request a formal or informal review
20 of the suspension by the department within 10 days after the
21 date of issuance of the notice of suspension.
22 4. The temporary permit issued at the time of
23 suspension expires at midnight of the 10th day following the
24 date of issuance of the notice of suspension.
25 5. The driver may submit to the department any
26 materials relevant to the suspension.
27 (2) Except as provided in paragraph (1)(a), the law
28 enforcement officer shall forward to the department, within 5
29 days after issuing the notice of suspension, the driver's
30 license; an affidavit stating the officer's grounds for belief
31 that the person was driving or in actual physical control of a
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1 motor vehicle while under the influence of alcoholic beverages
2 or chemical or controlled substances; the results of any
3 breath or blood test or an affidavit stating that a breath,
4 blood, or urine test was requested by a law enforcement
5 officer or correctional officer and that the person refused to
6 submit; the officer's description of the person's field
7 sobriety test, if any; the notice of suspension; and a copy of
8 the crash report, if any. The failure of the officer to submit
9 materials within the 5-day period specified in this subsection
10 and in subsection (1) does not affect the department's ability
11 to consider any evidence submitted at or prior to the hearing.
12 The officer may also submit a copy of a videotape of the field
13 sobriety test or the attempt to administer such test.
14 Materials submitted to the department by a law enforcement
15 agency or correctional agency shall be considered
16 self-authenticating and shall be in the record for
17 consideration by the hearing officer. Notwithstanding s.
18 316.066(4), the crash report shall be considered by the
19 hearing officer.
20 (3) If the department determines that the license
21 should be suspended pursuant to this section and if the notice
22 of suspension has not already been served upon the person by a
23 law enforcement officer or correctional officer as provided in
24 subsection (1), the department shall issue a notice of
25 suspension and, unless the notice is mailed pursuant to s.
26 322.251, a temporary permit that expires 10 days after the
27 date of issuance if the driver is otherwise eligible.
28 (4) If the person whose license was suspended requests
29 an informal review pursuant to subparagraph (1)(b)3., the
30 department shall conduct the informal review by a hearing
31 officer employed by the department. Such informal review
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1 hearing shall consist solely of an examination by the
2 department of the materials submitted by a law enforcement
3 officer or correctional officer and by the person whose
4 license was suspended, and the presence of an officer or
5 witness is not required.
6 (5) After completion of the informal review, notice of
7 the department's decision sustaining, amending, or
8 invalidating the suspension of the driver's license of the
9 person whose license was suspended must be provided to such
10 person. Such notice must be mailed to the person at the last
11 known address shown on the department's records, or to the
12 address provided in the law enforcement officer's report if
13 such address differs from the address of record, within 21
14 days after the expiration of the temporary permit issued
15 pursuant to subsection (1) or subsection (3).
16 (6)(a) If the person whose license was suspended
17 requests a formal review, the department must schedule a
18 hearing to be held within 30 days after such request is
19 received by the department and must notify the person of the
20 date, time, and place of the hearing.
21 (b) Such formal review hearing shall be held before a
22 hearing officer employed by the department, and the hearing
23 officer shall be authorized to administer oaths, examine
24 witnesses and take testimony, receive relevant evidence, issue
25 subpoenas for the officers and witnesses identified in
26 documents in subsection (2), regulate the course and conduct
27 of the hearing, question witnesses, and make a ruling on the
28 suspension. The party requesting the presence of a witness
29 shall be responsible for the payment of any witness fees and
30 for notifying in writing the state attorney's office in the
31 appropriate circuit of the issuance of the subpoena. If the
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1 person who requests a formal review hearing fails to appear
2 and the hearing officer finds such failure to be without just
3 cause, the right to a formal hearing is waived and the
4 suspension shall be sustained.
5 (c) A party may seek enforcement of a subpoena under
6 paragraph (b) by filing a petition for enforcement in the
7 circuit court of the judicial circuit in which the person
8 failing to comply with the subpoena resides. A failure to
9 comply with an order of the court shall result in a finding of
10 contempt of court. However, a person is not in contempt while
11 a subpoena is being challenged.
12 (d) The department must, within 7 working days after a
13 formal review hearing, send notice to the person of the
14 hearing officer's decision as to whether sufficient cause
15 exists to sustain, amend, or invalidate the suspension.
16 (7) In a formal review hearing under subsection (6) or
17 an informal review hearing under subsection (4), the hearing
18 officer shall determine by a preponderance of the evidence
19 whether sufficient cause exists to sustain, amend, or
20 invalidate the suspension. The scope of the review shall be
21 limited to the following issues:
22 (a) If the license was suspended for driving with an
23 unlawful blood-alcohol level or breath-alcohol level of 0.04
24 0.08 or higher:
25 1. Whether the law enforcement officer had probable
26 cause to believe that the person whose license was suspended
27 was driving or in actual physical control of a motor vehicle
28 in this state while under the influence of alcoholic beverages
29 or chemical or controlled substances.
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1 2. Whether the person whose license was suspended had
2 an unlawful blood-alcohol level or breath-alcohol level of
3 0.04 0.08 or higher as provided in s. 316.193.
4 (b) If the license was suspended for refusal to submit
5 to a breath, blood, or urine test:
6 1. Whether the law enforcement officer had probable
7 cause to believe that the person whose license was suspended
8 was driving or in actual physical control of a motor vehicle
9 in this state while under the influence of alcoholic beverages
10 or chemical or controlled substances.
11 2. Whether the person whose license was suspended
12 refused to submit to any such test after being requested to do
13 so by a law enforcement officer or correctional officer.
14 3. Whether the person whose license was suspended was
15 told that if he or she refused to submit to such test his or
16 her privilege to operate a motor vehicle would be suspended
17 for a period of 1 year or, in the case of a second or
18 subsequent refusal, for a period of 18 months.
19 (8) Based on the determination of the hearing officer
20 pursuant to subsection (7) for both informal hearings under
21 subsection (4) and formal hearings under subsection (6), the
22 department shall:
23 (a) Sustain the suspension of the person's driving
24 privilege for a period of 1 year for a first refusal, or for a
25 period of 18 months if the driving privilege of such person
26 has been previously suspended as a result of a refusal to
27 submit to such tests, if the person refused to submit to a
28 lawful breath, blood, or urine test. The suspension period
29 commences on the date of issuance of the notice of suspension.
30 (b) Sustain the suspension of the person's driving
31 privilege for a period of 6 months for a blood-alcohol level
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1 or breath-alcohol level of 0.04 0.08 or higher, or for a
2 period of 1 year if the driving privilege of such person has
3 been previously suspended under this section as a result of
4 driving with an unlawful alcohol level. The suspension period
5 commences on the date of issuance of the notice of suspension.
6 (9) A request for a formal review hearing or an
7 informal review hearing shall not stay the suspension of the
8 person's driver's license. If the department fails to schedule
9 the formal review hearing to be held within 30 days after
10 receipt of the request therefor, the department shall
11 invalidate the suspension. If the scheduled hearing is
12 continued at the department's initiative, the department shall
13 issue a temporary driving permit that shall be valid until the
14 hearing is conducted if the person is otherwise eligible for
15 the driving privilege. Such permit may not be issued to a
16 person who sought and obtained a continuance of the hearing.
17 The permit issued under this subsection shall authorize
18 driving for business or employment use only.
19 (10) A person whose driver's license is suspended
20 under subsection (1) or subsection (3) may apply for issuance
21 of a license for business or employment purposes only if the
22 person is otherwise eligible for the driving privilege
23 pursuant to s. 322.271.
24 (a) If the suspension of the driver's license of the
25 person for failure to submit to a breath, urine, or blood test
26 is sustained, the person is not eligible to receive a license
27 for business or employment purposes only, pursuant to s.
28 322.271, until 90 days have elapsed after the expiration of
29 the last temporary permit issued. If the driver is not issued
30 a 10-day permit pursuant to this section or s. 322.64 because
31 he or she is ineligible for the permit and the suspension for
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1 failure to submit to a breath, urine, or blood test is not
2 invalidated by the department, the driver is not eligible to
3 receive a business or employment license pursuant to s.
4 322.271 until 90 days have elapsed from the date of the
5 suspension.
6 (b) If the suspension of the driver's license of the
7 person relating to unlawful blood-alcohol level or
8 breath-alcohol level of 0.04 0.08 or higher is sustained, the
9 person is not eligible to receive a license for business or
10 employment purposes only pursuant to s. 322.271 until 30 days
11 have elapsed after the expiration of the last temporary permit
12 issued. If the driver is not issued a 10-day permit pursuant
13 to this section or s. 322.64 because he or she is ineligible
14 for the permit and the suspension relating to unlawful
15 blood-alcohol level or breath-alcohol level of 0.04 0.08 or
16 higher is not invalidated by the department, the driver is not
17 eligible to receive a business or employment license pursuant
18 to s. 322.271 until 30 days have elapsed from the date of the
19 suspension.
20 (11) The formal review hearing may be conducted upon a
21 review of the reports of a law enforcement officer or a
22 correctional officer, including documents relating to the
23 administration of a breath test or blood test or the refusal
24 to take either test or the refusal to take a urine test.
25 However, as provided in subsection (6), the driver may
26 subpoena the officer or any person who administered or
27 analyzed a breath or blood test.
28 (12) The formal review hearing and the informal review
29 hearing are exempt from the provisions of chapter 120. The
30 department may adopt rules for the conduct of reviews under
31 this section.
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1 (13) A person may appeal any decision of the
2 department sustaining a suspension of his or her driver's
3 license by a petition for writ of certiorari to the circuit
4 court in the county wherein such person resides or wherein a
5 formal or informal review was conducted pursuant to s. 322.31.
6 However, an appeal shall not stay the suspension. A law
7 enforcement agency may appeal any decision of the department
8 invalidating a suspension by a petition for writ of certiorari
9 to the circuit court in the county wherein a formal or
10 informal review was conducted. This subsection shall not be
11 construed to provide for a de novo appeal.
12 (14)(a) The decision of the department under this
13 section or any circuit court review thereof may not be
14 considered in any trial for a violation of s. 316.193, and a
15 written statement submitted by a person in his or her request
16 for departmental review under this section may not be admitted
17 into evidence against him or her in any such trial.
18 (b) The disposition of any related criminal
19 proceedings does not affect a suspension for refusal to submit
20 to a blood, breath, or urine test imposed under this section.
21 (15) If the department suspends a person's license
22 under s. 322.2616, it may not also suspend the person's
23 license under this section for the same episode that was the
24 basis for the suspension under s. 322.2616.
25 (16) The department shall invalidate a suspension for
26 driving with an unlawful blood-alcohol level or breath-alcohol
27 level imposed under this section if the suspended person is
28 found not guilty at trial of an underlying violation of s.
29 316.193.
30 Section 4. Subsection (1) of section 322.64, Florida
31 Statutes, is amended to read:
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1 322.64 Holder of commercial driver's license; driving
2 with unlawful blood-alcohol level; refusal to submit to
3 breath, urine, or blood test.--
4 (1)(a) A law enforcement officer or correctional
5 officer shall, on behalf of the department, disqualify from
6 operating any commercial motor vehicle a person who while
7 operating or in actual physical control of a commercial motor
8 vehicle is arrested for a violation of s. 316.193, relating to
9 unlawful blood-alcohol level or breath-alcohol level, or a
10 person who has refused to submit to a breath, urine, or blood
11 test authorized by s. 322.63 arising out of the operation or
12 actual physical control of a commercial motor vehicle. Upon
13 disqualification of the person, the officer shall take the
14 person's driver's license and issue the person a 10-day
15 temporary permit for the operation of noncommercial vehicles
16 only if the person is otherwise eligible for the driving
17 privilege and shall issue the person a notice of
18 disqualification. If the person has been given a blood,
19 breath, or urine test, the results of which are not available
20 to the officer at the time of the arrest, the agency employing
21 the officer shall transmit such results to the department
22 within 5 days after receipt of the results. If the department
23 then determines that the person was arrested for a violation
24 of s. 316.193 and that the person had a blood-alcohol level or
25 breath-alcohol level of 0.04 0.08 or higher, the department
26 shall disqualify the person from operating a commercial motor
27 vehicle pursuant to subsection (3).
28 (b) The disqualification under paragraph (a) shall be
29 pursuant to, and the notice of disqualification shall inform
30 the driver of, the following:
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1 1.a. The driver refused to submit to a lawful breath,
2 blood, or urine test and he or she is disqualified from
3 operating a commercial motor vehicle for a period of 1 year,
4 for a first refusal, or permanently, if he or she has
5 previously been disqualified as a result of a refusal to
6 submit to such a test; or
7 b. The driver violated s. 316.193 by driving with an
8 unlawful blood-alcohol level and he or she is disqualified
9 from operating a commercial motor vehicle for a period of 6
10 months for a first offense or for a period of 1 year if he or
11 she has previously been disqualified, or his or her driving
12 privilege has been previously suspended, for a violation of s.
13 316.193.
14 2. The disqualification period for operating
15 commercial vehicles shall commence on the date of arrest or
16 issuance of notice of disqualification, whichever is later.
17 3. The driver may request a formal or informal review
18 of the disqualification by the department within 10 days after
19 the date of arrest or issuance of notice of disqualification,
20 whichever is later.
21 4. The temporary permit issued at the time of arrest
22 or disqualification will expire at midnight of the 10th day
23 following the date of disqualification.
24 5. The driver may submit to the department any
25 materials relevant to the arrest.
26 Section 5. Section 322.291, Florida Statutes, is
27 amended to read:
28 322.291 Driver improvement schools or DUI programs;
29 required in certain suspension and revocation cases.--Except
30 as provided in s. 322.03(2), any person:
31 (1) Whose driving privilege has been revoked:
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1 (a) Upon conviction for:
2 1. Driving, or being in actual physical control of,
3 any vehicle while under the influence of alcoholic beverages,
4 any chemical substance set forth in s. 877.111, or any
5 substance controlled under chapter 893, in violation of s.
6 316.193;
7 2. Driving with an unlawful blood- or breath-alcohol
8 level;
9 3. Manslaughter resulting from the operation of a
10 motor vehicle;
11 4. Failure to stop and render aid as required under
12 the laws of this state in the event of a motor vehicle crash
13 resulting in the death or personal injury of another;
14 5. Reckless driving; or
15 (b) As an habitual offender;
16 (c) Upon direction of the court, if the court feels
17 that the seriousness of the offense and the circumstances
18 surrounding the conviction warrant the revocation of the
19 licensee's driving privilege; or
20 (2) Whose license was suspended under the point
21 system, was suspended for driving with an unlawful
22 blood-alcohol level of 0.10 percent or higher before January
23 1, 1994, was suspended for driving with an unlawful
24 blood-alcohol level of 0.08 percent or higher after December
25 31, 1993, but before July 1, 2007, was suspended for a
26 violation of s. 316.193(1), or was suspended for refusing to
27 submit to a lawful breath, blood, or urine test as provided in
28 s. 322.2615
29
30 shall, before the driving privilege may be reinstated, present
31 to the department proof of enrollment in a department-approved
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1 advanced driver improvement course operating pursuant to s.
2 318.1451 or a substance abuse education course conducted by a
3 DUI program licensed pursuant to s. 322.292, which shall
4 include a psychosocial evaluation and treatment, if referred.
5 If the person fails to complete such course or evaluation
6 within 90 days after reinstatement, or subsequently fails to
7 complete treatment, if referred, the DUI program shall notify
8 the department of the failure. Upon receipt of the notice, the
9 department shall cancel the offender's driving privilege,
10 notwithstanding the expiration of the suspension or revocation
11 of the driving privilege. The department may temporarily
12 reinstate the driving privilege upon verification from the DUI
13 program that the offender has completed the education course
14 and evaluation requirement and has reentered and is currently
15 participating in treatment. If the DUI program notifies the
16 department of the second failure to complete treatment, the
17 department shall reinstate the driving privilege only after
18 notice of completion of treatment from the DUI program.
19 Section 6. Subsections (1) and (8) of section 327.35,
20 Florida Statutes, are amended to read:
21 327.35 Boating under the influence; penalties;
22 "designated drivers".--
23 (1) A person is guilty of the offense of boating under
24 the influence and is subject to punishment as provided in
25 subsection (2) if the person is operating a vessel within this
26 state and:
27 (a) The person is under the influence of alcoholic
28 beverages, any chemical substance set forth in s. 877.111, or
29 any substance controlled under chapter 893, when affected to
30 the extent that the person's normal faculties are impaired;
31
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1 (b) The person has a blood-alcohol level of 0.04 0.08
2 or more grams of alcohol per 100 milliliters of blood; or
3 (c) The person has a breath-alcohol level of 0.04 0.08
4 or more grams of alcohol per 210 liters of breath.
5 (8) A person who is arrested for a violation of this
6 section may not be released from custody:
7 (a) Until the person is no longer under the influence
8 of alcoholic beverages, any chemical substance set forth in s.
9 877.111, or any substance controlled under chapter 893 and
10 affected to the extent that his or her normal faculties are
11 impaired;
12 (b) Until the person's blood-alcohol level or
13 breath-alcohol level is less than 0.04 0.05; or
14 (c) Until 8 hours have elapsed from the time the
15 person was arrested.
16 Section 7. For the purpose of incorporating the
17 amendments made by this act to section 316.193, Florida
18 Statutes, in a reference thereto, paragraph (f) of subsection
19 (1) of section 316.1932, Florida Statutes, is reenacted to
20 read:
21 316.1932 Tests for alcohol, chemical substances, or
22 controlled substances; implied consent; refusal.--
23 (1)
24 (f)1. The tests determining the weight of alcohol in
25 the defendant's blood or breath shall be administered at the
26 request of a law enforcement officer substantially in
27 accordance with rules of the Department of Law Enforcement.
28 Such rules must specify precisely the test or tests that are
29 approved by the Department of Law Enforcement for reliability
30 of result and ease of administration, and must provide an
31 approved method of administration which must be followed in
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1 all such tests given under this section. However, the failure
2 of a law enforcement officer to request the withdrawal of
3 blood does not affect the admissibility of a test of blood
4 withdrawn for medical purposes.
5 2.a. Only a physician, certified paramedic, registered
6 nurse, licensed practical nurse, other personnel authorized by
7 a hospital to draw blood, or duly licensed clinical laboratory
8 director, supervisor, technologist, or technician, acting at
9 the request of a law enforcement officer, may withdraw blood
10 for the purpose of determining its alcoholic content or the
11 presence of chemical substances or controlled substances
12 therein. However, the failure of a law enforcement officer to
13 request the withdrawal of blood does not affect the
14 admissibility of a test of blood withdrawn for medical
15 purposes.
16 b. Notwithstanding any provision of law pertaining to
17 the confidentiality of hospital records or other medical
18 records, if a health care provider, who is providing medical
19 care in a health care facility to a person injured in a motor
20 vehicle crash, becomes aware, as a result of any blood test
21 performed in the course of that medical treatment, that the
22 person's blood-alcohol level meets or exceeds the
23 blood-alcohol level specified in s. 316.193(1)(b), the health
24 care provider may notify any law enforcement officer or law
25 enforcement agency. Any such notice must be given within a
26 reasonable time after the health care provider receives the
27 test result. Any such notice shall be used only for the
28 purpose of providing the law enforcement officer with
29 reasonable cause to request the withdrawal of a blood sample
30 pursuant to this section.
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1 c. The notice shall consist only of the name of the
2 person being treated, the name of the person who drew the
3 blood, the blood-alcohol level indicated by the test, and the
4 date and time of the administration of the test.
5 d. Nothing contained in s. 395.3025(4), s. 456.057, or
6 any applicable practice act affects the authority to provide
7 notice under this section, and the health care provider is not
8 considered to have breached any duty owed to the person under
9 s. 395.3025(4), s. 456.057, or any applicable practice act by
10 providing notice or failing to provide notice. It shall not be
11 a breach of any ethical, moral, or legal duty for a health
12 care provider to provide notice or fail to provide notice.
13 e. A civil, criminal, or administrative action may not
14 be brought against any person or health care provider
15 participating in good faith in the provision of notice or
16 failure to provide notice as provided in this section. Any
17 person or health care provider participating in the provision
18 of notice or failure to provide notice as provided in this
19 section shall be immune from any civil or criminal liability
20 and from any professional disciplinary action with respect to
21 the provision of notice or failure to provide notice under
22 this section. Any such participant has the same immunity with
23 respect to participating in any judicial proceedings resulting
24 from the notice or failure to provide notice.
25 3. The person tested may, at his or her own expense,
26 have a physician, registered nurse, other personnel authorized
27 by a hospital to draw blood, or duly licensed clinical
28 laboratory director, supervisor, technologist, or technician,
29 or other person of his or her own choosing administer an
30 independent test in addition to the test administered at the
31 direction of the law enforcement officer for the purpose of
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1 determining the amount of alcohol in the person's blood or
2 breath or the presence of chemical substances or controlled
3 substances at the time alleged, as shown by chemical analysis
4 of his or her blood or urine, or by chemical or physical test
5 of his or her breath. The failure or inability to obtain an
6 independent test by a person does not preclude the
7 admissibility in evidence of the test taken at the direction
8 of the law enforcement officer. The law enforcement officer
9 shall not interfere with the person's opportunity to obtain
10 the independent test and shall provide the person with timely
11 telephone access to secure the test, but the burden is on the
12 person to arrange and secure the test at the person's own
13 expense.
14 4. Upon the request of the person tested, full
15 information concerning the results of the test taken at the
16 direction of the law enforcement officer shall be made
17 available to the person or his or her attorney. Full
18 information is limited to the following:
19 a. The type of test administered and the procedures
20 followed.
21 b. The time of the collection of the blood or breath
22 sample analyzed.
23 c. The numerical results of the test indicating the
24 alcohol content of the blood and breath.
25 d. The type and status of any permit issued by the
26 Department of Law Enforcement which was held by the person who
27 performed the test.
28 e. If the test was administered by means of a breath
29 testing instrument, the date of performance of the most recent
30 required inspection of such instrument.
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1 Full information does not include manuals, schematics, or
2 software of the instrument used to test the person or any
3 other material that is not in the actual possession of the
4 state. Additionally, full information does not include
5 information in the possession of the manufacturer of the test
6 instrument.
7 5. A hospital, clinical laboratory, medical clinic, or
8 similar medical institution or physician, certified paramedic,
9 registered nurse, licensed practical nurse, other personnel
10 authorized by a hospital to draw blood, or duly licensed
11 clinical laboratory director, supervisor, technologist, or
12 technician, or other person assisting a law enforcement
13 officer does not incur any civil or criminal liability as a
14 result of the withdrawal or analysis of a blood or urine
15 specimen, or the chemical or physical test of a person's
16 breath pursuant to accepted medical standards when requested
17 by a law enforcement officer, regardless of whether or not the
18 subject resisted administration of the test.
19 Section 8. For the purpose of incorporating the
20 amendments made by this act to section 316.193, Florida
21 Statutes, in a reference thereto, paragraph (a) of subsection
22 (2) of section 316.1933, Florida Statutes, is reenacted to
23 read:
24 316.1933 Blood test for impairment or intoxication in
25 cases of death or serious bodily injury; right to use
26 reasonable force.--
27 (2)(a) Only a physician, certified paramedic,
28 registered nurse, licensed practical nurse, other personnel
29 authorized by a hospital to draw blood, or duly licensed
30 clinical laboratory director, supervisor, technologist, or
31 technician, acting at the request of a law enforcement
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1 officer, may withdraw blood for the purpose of determining the
2 alcoholic content thereof or the presence of chemical
3 substances or controlled substances therein. However, the
4 failure of a law enforcement officer to request the withdrawal
5 of blood shall not affect the admissibility of a test of blood
6 withdrawn for medical purposes.
7 1. Notwithstanding any provision of law pertaining to
8 the confidentiality of hospital records or other medical
9 records, if a health care provider, who is providing medical
10 care in a health care facility to a person injured in a motor
11 vehicle crash, becomes aware, as a result of any blood test
12 performed in the course of that medical treatment, that the
13 person's blood-alcohol level meets or exceeds the
14 blood-alcohol level specified in s. 316.193(1)(b), the health
15 care provider may notify any law enforcement officer or law
16 enforcement agency. Any such notice must be given within a
17 reasonable time after the health care provider receives the
18 test result. Any such notice shall be used only for the
19 purpose of providing the law enforcement officer with
20 reasonable cause to request the withdrawal of a blood sample
21 pursuant to this section.
22 2. The notice shall consist only of the name of the
23 person being treated, the name of the person who drew the
24 blood, the blood-alcohol level indicated by the test, and the
25 date and time of the administration of the test.
26 3. Nothing contained in s. 395.3025(4), s. 456.057, or
27 any applicable practice act affects the authority to provide
28 notice under this section, and the health care provider is not
29 considered to have breached any duty owed to the person under
30 s. 395.3025(4), s. 456.057, or any applicable practice act by
31 providing notice or failing to provide notice. It shall not be
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1 a breach of any ethical, moral, or legal duty for a health
2 care provider to provide notice or fail to provide notice.
3 4. A civil, criminal, or administrative action may not
4 be brought against any person or health care provider
5 participating in good faith in the provision of notice or
6 failure to provide notice as provided in this section. Any
7 person or health care provider participating in the provision
8 of notice or failure to provide notice as provided in this
9 section shall be immune from any civil or criminal liability
10 and from any professional disciplinary action with respect to
11 the provision of notice or failure to provide notice under
12 this section. Any such participant has the same immunity with
13 respect to participating in any judicial proceedings resulting
14 from the notice or failure to provide notice.
15 Section 9. This act shall take effect July 1, 2007.
16
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18 SENATE SUMMARY
19 Lowers the blood-alcohol level from 0.08 to 0.04 for an
individual to be guilty of driving under the influence.
20 Conforms related provisions. Conforms provisions related
to boating under the influence to conform.
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