HB 317

1
A bill to be entitled
2An act relating to blood testing of persons involved in
3a traffic accident causing serious injury or death;
4amending s. 316.1933, F.S.; requiring a law enforcement
5officer who has a reasonable suspicion that a person was
6driving or in actual physical control of a motor vehicle
7when it was involved in an accident that may have caused
8or contributed to the death or serious bodily injury of
9a human being to require that person to submit to a test
10of the person's blood to determine the alcoholic content
11thereof or the presence of specified substances;
12authorizing the law enforcement officer to use
13reasonable force if necessary; requiring that the blood
14test be performed in a reasonable manner; providing that
15the test need not be incidental to a lawful arrest of
16the person; providing for admissibility of test result
17at trial; providing testing requirements and procedures;
18providing a limitation of liability; providing for
19disposition of charges; limiting use of test results;
20authorizing release of results to certain persons;
21reenacting ss. 316.066(7), 316.1934(2), 322.2616(18),
22and 322.27(1)(a), F.S., relating to written reports of
23crashes; presumption of impairment and testing methods;
24suspension of license, persons under 21 years of age,
25and right to review; and authority of the Department of
26Highway Safety and Motor Vehicles to suspend or revoke
27license; providing an effective date.
28
29Be It Enacted by the Legislature of the State of Florida:
30
31     Section 1.  Section 316.1933, Florida Statutes, is
32amended to read:
33     316.1933  Blood test for impairment or intoxication in
34cases of death or serious bodily injury; right to use
35reasonable force.--
36     (1)(a)  If a law enforcement officer has probable cause
37to believe that a motor vehicle driven by or in the actual
38physical control of a person under the influence of alcoholic
39beverages, any chemical substances, or any controlled
40substances has caused the death or serious bodily injury of a
41human being, a law enforcement officer shall require the
42person driving or in actual physical control of the motor
43vehicle to submit to a test of the person's blood for the
44purpose of determining the alcoholic content thereof or the
45presence of chemical substances as set forth in s. 877.111 or
46any substance controlled under chapter 893. The law
47enforcement officer may use reasonable force if necessary to
48require such person to submit to the administration of the
49blood test. The blood test shall be performed in a reasonable
50manner. Notwithstanding s. 316.1932, the testing required by
51this paragraph need not be incidental to a lawful arrest of
52the person.
53     (b)  If a law enforcement officer has a reasonable
54suspicion that a person was driving or in actual physical
55control of a motor vehicle when it was involved in an accident
56that may have caused or contributed to the death or serious
57bodily injury of a human being, a law enforcement officer
58shall require the person who is suspected of driving or being
59in actual physical control of the motor vehicle to submit to a
60test of the person's blood for the purpose of determining the
61alcoholic content thereof or the presence of chemical
62substances as set forth in s. 877.111 or any substance
63controlled under chapter 893. The law enforcement officer may
64use reasonable force if necessary to require such person to
65submit to the administration of the blood test. The blood test
66shall be performed in a reasonable manner. Notwithstanding s.
67316.1932, the testing required by this paragraph need not be
68incidental to a lawful arrest of the person. The result of the
69test is admissible at trial if the court, after reviewing all
70the evidence, whether gathered prior to, during, or after the
71test, is satisfied that probable cause exists, independent of
72the test result, to believe that the person suspected of
73driving or being in actual physical control of the motor
74vehicle was under the influence of alcohol, any chemical
75substance as set forth in s. 877.111, or any substance
76controlled under chapter 893 at the time of the accident.
77     (c)(b)  The term "serious bodily injury" means an injury
78to any person, including the driver, which consists of a
79physical condition that creates a substantial risk of death,
80serious personal disfigurement, or protracted loss or
81impairment of the function of any bodily member or organ.
82     (2)(a)  Only a physician, certified paramedic, registered
83nurse, licensed practical nurse, other personnel authorized by
84a hospital to draw blood, or duly licensed clinical laboratory
85director, supervisor, technologist, or technician, acting at
86the request of a law enforcement officer, may withdraw blood
87for the purpose of determining the alcoholic content thereof
88or the presence of chemical substances or controlled
89substances therein. However, the failure of a law enforcement
90officer to request the withdrawal of blood shall not affect
91the admissibility of a test of blood withdrawn for medical
92purposes.
93     1.  Notwithstanding any provision of law pertaining to
94the confidentiality of hospital records or other medical
95records, if a health care provider, who is providing medical
96care in a health care facility to a person injured in a motor
97vehicle crash, becomes aware, as a result of any blood test
98performed in the course of that medical treatment, that the
99person's blood-alcohol level meets or exceeds the blood-
100alcohol level specified in s. 316.193(1)(b), the health care
101provider may notify any law enforcement officer or law
102enforcement agency. Any such notice must be given within a
103reasonable time after the health care provider receives the
104test result. Any such notice shall be used only for the
105purpose of providing the law enforcement officer with
106reasonable cause to request the withdrawal of a blood sample
107pursuant to this section.
108     2.  The notice shall consist only of the name of the
109person being treated, the name of the person who drew the
110blood, the blood-alcohol level indicated by the test, and the
111date and time of the administration of the test.
112     3.  Nothing contained in s. 395.3025(4), s. 456.057, or
113any applicable practice act affects the authority to provide
114notice under this section, and the health care provider is not
115considered to have breached any duty owed to the person under
116s. 395.3025(4), s. 456.057, or any applicable practice act by
117providing notice or failing to provide notice. It shall not be
118a breach of any ethical, moral, or legal duty for a health
119care provider to provide notice or fail to provide notice.
120     4.  A civil, criminal, or administrative action may not
121be brought against any person or health care provider
122participating in good faith in the provision of notice or
123failure to provide notice as provided in this section. Any
124person or health care provider participating in the provision
125of notice or failure to provide notice as provided in this
126section shall be immune from any civil or criminal liability
127and from any professional disciplinary action with respect to
128the provision of notice or failure to provide notice under
129this section. Any such participant has the same immunity with
130respect to participating in any judicial proceedings resulting
131from the notice or failure to provide notice.
132     (b)  A chemical analysis of the person's blood to
133determine the alcoholic content thereof must have been
134performed substantially in accordance with methods approved by
135the Department of Law Enforcement and by an individual
136possessing a valid permit issued by the department for this
137purpose. The Department of Law Enforcement may approve
138satisfactory techniques or methods, ascertain the
139qualifications and competence of individuals to conduct such
140analyses, and issue permits that are subject to termination or
141revocation at the discretion of the department. Any
142insubstantial differences between approved methods or
143techniques and actual testing procedures, or any insubstantial
144defects concerning the permit issued by the department, in any
145individual case, shall not render the test or test results
146invalid.
147     (c)  No hospital, clinical laboratory, medical clinic, or
148similar medical institution or physician, certified paramedic,
149registered nurse, licensed practical nurse, other personnel
150authorized by a hospital to draw blood, or duly licensed
151clinical laboratory director, supervisor, technologist, or
152technician, or other person assisting a law enforcement
153officer shall incur any civil or criminal liability as a
154result of the withdrawal or analysis of a blood specimen
155pursuant to accepted medical standards when requested by a law
156enforcement officer, regardless of whether or not the subject
157resisted administration of the test.
158     (3)(a)  Any criminal charge resulting from the incident
159giving rise to the officer's demand for testing shall be tried
160concurrently with a charge of any violation arising out of the
161same incident, unless, in the discretion of the court, such
162charges should be tried separately. If such charges are tried
163separately, the fact that such person refused, resisted,
164obstructed, or opposed testing shall be admissible at the
165trial of the criminal offense which gave rise to the demand
166for testing.
167     (b)  The results of any test administered pursuant to
168this section for the purpose of detecting the presence of any
169controlled substance shall not be admissible as evidence in a
170criminal prosecution for the possession of a controlled
171substance.
172     (4)  Notwithstanding any provision of law pertaining to
173the confidentiality of hospital records or other medical
174records, information relating to the alcoholic content of the
175blood or the presence of chemical substances or controlled
176substances in the blood obtained pursuant to this section
177shall be released to a court, prosecuting attorney, defense
178attorney, or law enforcement officer in connection with an
179alleged violation of s. 316.193 upon request for such
180information.
181     Section 2.  For the purpose of incorporating the
182amendment made by this act to section 316.1933, Florida
183Statutes, in a reference thereto, subsection (7) of section
184316.066, Florida Statutes, is reenacted to read:
185     316.066  Written reports of crashes.--
186     (7)  Except as specified in this subsection, each crash
187report made by a person involved in a crash and any statement
188made by such person to a law enforcement officer for the
189purpose of completing a crash report required by this section
190shall be without prejudice to the individual so reporting. No
191such report or statement shall be used as evidence in any
192trial, civil or criminal. However, subject to the applicable
193rules of evidence, a law enforcement officer at a criminal
194trial may testify as to any statement made to the officer by
195the person involved in the crash if that person's privilege
196against self-incrimination is not violated. The results of
197breath, urine, and blood tests administered as provided in s.
198316.1932 or s. 316.1933 are not confidential and shall be
199admissible into evidence in accordance with the provisions of
200s. 316.1934(2). Crash reports made by persons involved in
201crashes shall not be used for commercial solicitation
202purposes; however, the use of a crash report for purposes of
203publication in a newspaper or other news periodical or a radio
204or television broadcast shall not be construed as "commercial
205purpose."
206     Section 3.  For the purpose of incorporating the
207amendment made by this act to section 316.1933, Florida
208Statutes, in a reference thereto, subsection (2) of section
209316.1934, Florida Statutes, is reenacted to read:
210     316.1934  Presumption of impairment; testing methods.--
211     (2)  At the trial of any civil or criminal action or
212proceeding arising out of acts alleged to have been committed
213by any person while driving, or in actual physical control of,
214a vehicle while under the influence of alcoholic beverages or
215controlled substances, when affected to the extent that the
216person's normal faculties were impaired or to the extent that
217he or she was deprived of full possession of his or her normal
218faculties, the results of any test administered in accordance
219with s. 316.1932 or s. 316.1933 and this section are
220admissible into evidence when otherwise admissible, and the
221amount of alcohol in the person's blood or breath at the time
222alleged, as shown by chemical analysis of the person's blood,
223or by chemical or physical test of the person's breath, gives
224rise to the following presumptions:
225     (a)  If there was at that time a blood-alcohol level or
226breath-alcohol level of 0.05 or less, it is presumed that the
227person was not under the influence of alcoholic beverages to
228the extent that his or her normal faculties were impaired.
229     (b)  If there was at that time a blood-alcohol level or
230breath-alcohol level in excess of 0.05 but less than 0.08,
231that fact does not give rise to any presumption that the
232person was or was not under the influence of alcoholic
233beverages to the extent that his or her normal faculties were
234impaired but may be considered with other competent evidence
235in determining whether the person was under the influence of
236alcoholic beverages to the extent that his or her normal
237faculties were impaired.
238     (c)  If there was at that time a blood-alcohol level or
239breath-alcohol level of 0.08 or higher, that fact is prima
240facie evidence that the person was under the influence of
241alcoholic beverages to the extent that his or her normal
242faculties were impaired. Moreover, such person who has a
243blood-alcohol level or breath-alcohol level of 0.08 or higher
244is guilty of driving, or being in actual physical control of,
245a motor vehicle, with an unlawful blood-alcohol level or
246breath-alcohol level.
247
248The presumptions provided in this subsection do not limit the
249introduction of any other competent evidence bearing upon the
250question of whether the person was under the influence of
251alcoholic beverages to the extent that his or her normal
252faculties were impaired.
253     Section 4.  For the purpose of incorporating the
254amendment made by this act to section 316.1933, Florida
255Statutes, in a reference thereto, subsection (18) of section
256322.2616, Florida Statutes, is reenacted to read:
257     322.2616  Suspension of license; persons under 21 years
258of age; right to review.--
259     (18)  The result of a blood test obtained during an
260investigation conducted under s. 316.1932 or s. 316.1933 may
261be used to suspend the driving privilege of a person under
262this section.
263     Section 5.  For the purpose of incorporating the
264amendment made by this act to section 316.1933, Florida
265Statutes, in a reference thereto, paragraph (a) of subsection
266(1) of section 322.27, Florida Statutes, is reenacted to read:
267     322.27  Authority of department to suspend or revoke
268license.--
269     (1)  Notwithstanding any provisions to the contrary in
270chapter 120, the department is hereby authorized to suspend
271the license of any person without preliminary hearing upon a
272showing of its records or other sufficient evidence that the
273licensee:
274     (a)  Has committed an offense for which mandatory
275revocation of license is required upon conviction. A law
276enforcement agency must provide information to the department
277within 24 hours after any traffic fatality or when the law
278enforcement agency initiates action pursuant to s. 316.1933;
279     Section 6.  This act shall take effect July 1, 2008.


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