1

A bill to be entitled

2

An act relating to blood testing of persons involved in a

3

traffic accident causing serious injury or death; amending

4

s. 316.1933, F.S.; requiring a law enforcement officer who

5

has a reasonable suspicion that a person was driving or in

6

actual physical control of a motor vehicle when it was

7

involved in an accident that may have caused or

8

contributed to the death or serious bodily injury of a

9

human being to require that person to submit to a test of

10

the person's blood to determine the alcoholic content

11

thereof or the presence of specified substances;

12

authorizing the law enforcement officer to use reasonable

13

force if necessary; requiring that the blood test be

14

performed in a reasonable manner; providing that the test

15

need not be incidental to a lawful arrest of the person;

16

providing for admissibility of test result at trial;

17

providing testing requirements and procedures; providing a

18

limitation of liability; providing for disposition of

19

charges; limiting use of test results; authorizing release

20

of results to certain persons; reenacting ss. 316.066(7),

21

316.1934(2), 322.2616(18), and 322.27(1), F.S., relating

22

to written reports of crashes, presumption of impairment

23

and testing methods, suspension of license, persons under

24

21 years of age and right to review, and authority of the

25

Department of Highway Safety and Motor Vehicles to suspend

26

or revoke a license; providing an effective date.

27

28

Be It Enacted by the Legislature of the State of Florida:

29

30

     Section 1.  Section 316.1933, Florida Statutes, is amended

31

to read:

32

     316.1933  Blood test for impairment or intoxication in cases

33

of death or serious bodily injury; right to use reasonable

34

force.--

35

     (1)(a)  If a law enforcement officer has probable cause to

36

believe that a motor vehicle driven by or in the actual physical

37

control of a person under the influence of alcoholic beverages,

38

any chemical substances, or any controlled substances has caused

39

the death or serious bodily injury of a human being, a law

40

enforcement officer shall require the person driving or in actual

41

physical control of the motor vehicle to submit to a test of the

42

person's blood for the purpose of determining the alcoholic

43

content thereof or the presence of chemical substances as set

44

forth in s. 877.111 or any substance controlled under chapter

45

893. The law enforcement officer may use reasonable force if

46

necessary to require such person to submit to the administration

47

of the blood test. The blood test shall be performed in a

48

reasonable manner. Notwithstanding s. 316.1932, the testing

49

required by this paragraph need not be incidental to a lawful

50

arrest of the person.

51

     (b) If a law enforcement officer has a reasonable suspicion

52

that a person was driving or in actual physical control of a

53

motor vehicle when it was involved in an accident that may have

54

caused or contributed to the death or serious bodily injury of a

55

human being, a law enforcement officer shall require the person

56

who is suspected of driving or being in actual physical control

57

of the motor vehicle to submit to a test of the person's blood

58

for the purpose of determining the alcoholic content thereof or

59

the presence of chemical substances as set forth in s. 877.111 or

60

any substance controlled under chapter 893. The law enforcement

61

officer may use reasonable force if necessary to require such

62

person to submit to the administration of the blood test. The

63

blood test shall be performed in a reasonable manner.

64

Notwithstanding s. 316.1932, the testing required by this

65

paragraph need not be incidental to a lawful arrest of the

66

person. The result of the test is admissible at trial if the

67

court, after reviewing all the evidence, whether gathered prior

68

to, during, or after the test, is satisfied that probable cause

69

exists, independent of the test result, to believe that the

70

person suspected of driving or being in actual physical control

71

of the motor vehicle was under the influence of alcohol, any

72

chemical substance as set forth in s. 877.111, or any substance

73

controlled under chapter 893 at the time of the accident.

74

     (c)(b) The term "serious bodily injury" means an injury to

75

any person, including the driver, which consists of a physical

76

condition that creates a substantial risk of death, serious

77

personal disfigurement, or protracted loss or impairment of the

78

function of any bodily member or organ.

79

     (2)(a)  Only a physician, certified paramedic, registered

80

nurse, licensed practical nurse, other personnel authorized by a

81

hospital to draw blood, or duly licensed clinical laboratory

82

director, supervisor, technologist, or technician, acting at the

83

request of a law enforcement officer, may withdraw blood for the

84

purpose of determining the alcoholic content thereof or the

85

presence of chemical substances or controlled substances therein.

86

However, the failure of a law enforcement officer to request the

87

withdrawal of blood shall not affect the admissibility of a test

88

of blood withdrawn for medical purposes.

89

     1.  Notwithstanding any provision of law pertaining to the

90

confidentiality of hospital records or other medical records, if

91

a health care provider, who is providing medical care in a health

92

care facility to a person injured in a motor vehicle crash,

93

becomes aware, as a result of any blood test performed in the

94

course of that medical treatment, that the person's blood-alcohol

95

level meets or exceeds the blood-alcohol level specified in s.

96

316.193(1)(b), the health care provider may notify any law

97

enforcement officer or law enforcement agency. Any such notice

98

must be given within a reasonable time after the health care

99

provider receives the test result. Any such notice shall be used

100

only for the purpose of providing the law enforcement officer

101

with reasonable cause to request the withdrawal of a blood sample

102

pursuant to this section.

103

     2.  The notice shall consist only of the name of the person

104

being treated, the name of the person who drew the blood, the

105

blood-alcohol level indicated by the test, and the date and time

106

of the administration of the test.

107

     3.  Nothing contained in s. 395.3025(4), s. 456.057, or any

108

applicable practice act affects the authority to provide notice

109

under this section, and the health care provider is not

110

considered to have breached any duty owed to the person under s.

111

395.3025(4), s. 456.057, or any applicable practice act by

112

providing notice or failing to provide notice. It shall not be a

113

breach of any ethical, moral, or legal duty for a health care

114

provider to provide notice or fail to provide notice.

115

     4.  A civil, criminal, or administrative action may not be

116

brought against any person or health care provider participating

117

in good faith in the provision of notice or failure to provide

118

notice as provided in this section. Any person or health care

119

provider participating in the provision of notice or failure to

120

provide notice as provided in this section shall be immune from

121

any civil or criminal liability and from any professional

122

disciplinary action with respect to the provision of notice or

123

failure to provide notice under this section. Any such

124

participant has the same immunity with respect to participating

125

in any judicial proceedings resulting from the notice or failure

126

to provide notice.

127

     (b)  A chemical analysis of the person's blood to determine

128

the alcoholic content thereof must have been performed

129

substantially in accordance with methods approved by the

130

Department of Law Enforcement and by an individual possessing a

131

valid permit issued by the department for this purpose. The

132

Department of Law Enforcement may approve satisfactory techniques

133

or methods, ascertain the qualifications and competence of

134

individuals to conduct such analyses, and issue permits that are

135

subject to termination or revocation at the discretion of the

136

department. Any insubstantial differences between approved

137

methods or techniques and actual testing procedures, or any

138

insubstantial defects concerning the permit issued by the

139

department, in any individual case, shall not render the test or

140

test results invalid.

141

     (c)  No hospital, clinical laboratory, medical clinic, or

142

similar medical institution or physician, certified paramedic,

143

registered nurse, licensed practical nurse, other personnel

144

authorized by a hospital to draw blood, or duly licensed clinical

145

laboratory director, supervisor, technologist, or technician, or

146

other person assisting a law enforcement officer shall incur any

147

civil or criminal liability as a result of the withdrawal or

148

analysis of a blood specimen pursuant to accepted medical

149

standards when requested by a law enforcement officer, regardless

150

of whether or not the subject resisted administration of the

151

test.

152

     (3)(a)  Any criminal charge resulting from the incident

153

giving rise to the officer's demand for testing shall be tried

154

concurrently with a charge of any violation arising out of the

155

same incident, unless, in the discretion of the court, such

156

charges should be tried separately. If such charges are tried

157

separately, the fact that such person refused, resisted,

158

obstructed, or opposed testing shall be admissible at the trial

159

of the criminal offense which gave rise to the demand for

160

testing.

161

     (b)  The results of any test administered pursuant to this

162

section for the purpose of detecting the presence of any

163

controlled substance shall not be admissible as evidence in a

164

criminal prosecution for the possession of a controlled

165

substance.

166

     (4)  Notwithstanding any provision of law pertaining to the

167

confidentiality of hospital records or other medical records,

168

information relating to the alcoholic content of the blood or the

169

presence of chemical substances or controlled substances in the

170

blood obtained pursuant to this section shall be released to a

171

court, prosecuting attorney, defense attorney, or law enforcement

172

officer in connection with an alleged violation of s. 316.193

173

upon request for such information.

174

     Section 2.  For the purpose of incorporating the amendment

175

made by this act to section 316.1933, Florida Statutes, in a

176

reference thereto, subsection (7) of section 316.066, Florida

177

Statutes, is reenacted to read:

178

     316.066  Written reports of crashes.--

179

     (7)  Except as specified in this subsection, each crash

180

report made by a person involved in a crash and any statement

181

made by such person to a law enforcement officer for the purpose

182

of completing a crash report required by this section shall be

183

without prejudice to the individual so reporting. No such report

184

or statement shall be used as evidence in any trial, civil or

185

criminal. However, subject to the applicable rules of evidence, a

186

law enforcement officer at a criminal trial may testify as to any

187

statement made to the officer by the person involved in the crash

188

if that person's privilege against self-incrimination is not

189

violated. The results of breath, urine, and blood tests

190

administered as provided in s. 316.1932 or s. 316.1933 are not

191

confidential and shall be admissible into evidence in accordance

192

with the provisions of s. 316.1934(2). Crash reports made by

193

persons involved in crashes shall not be used for commercial

194

solicitation purposes; however, the use of a crash report for

195

purposes of publication in a newspaper or other news periodical

196

or a radio or television broadcast shall not be construed as

197

"commercial purpose."

198

     Section 3.  For the purpose of incorporating the amendment

199

made by this act to section 316.1933, Florida Statutes, in a

200

reference thereto, subsection (2) of section 316.1934, Florida

201

Statutes, is reenacted to read:

202

     316.1934  Presumption of impairment; testing methods.--

203

     (2)  At the trial of any civil or criminal action or

204

proceeding arising out of acts alleged to have been committed by

205

any person while driving, or in actual physical control of, a

206

vehicle while under the influence of alcoholic beverages or

207

controlled substances, when affected to the extent that the

208

person's normal faculties were impaired or to the extent that he

209

or she was deprived of full possession of his or her normal

210

faculties, the results of any test administered in accordance

211

with s. 316.1932 or s. 316.1933 and this section are admissible

212

into evidence when otherwise admissible, and the amount of

213

alcohol in the person's blood or breath at the time alleged, as

214

shown by chemical analysis of the person's blood, or by chemical

215

or physical test of the person's breath, gives rise to the

216

following presumptions:

217

     (a)  If there was at that time a blood-alcohol level or

218

breath-alcohol level of 0.05 or less, it is presumed that the

219

person was not under the influence of alcoholic beverages to the

220

extent that his or her normal faculties were impaired.

221

     (b)  If there was at that time a blood-alcohol level or

222

breath-alcohol level in excess of 0.05 but less than 0.08, that

223

fact does not give rise to any presumption that the person was or

224

was not under the influence of alcoholic beverages to the extent

225

that his or her normal faculties were impaired but may be

226

considered with other competent evidence in determining whether

227

the person was under the influence of alcoholic beverages to the

228

extent that his or her normal faculties were impaired.

229

     (c)  If there was at that time a blood-alcohol level or

230

breath-alcohol level of 0.08 or higher, that fact is prima facie

231

evidence that the person was under the influence of alcoholic

232

beverages to the extent that his or her normal faculties were

233

impaired. Moreover, such person who has a blood-alcohol level or

234

breath-alcohol level of 0.08 or higher is guilty of driving, or

235

being in actual physical control of, a motor vehicle, with an

236

unlawful blood-alcohol level or breath-alcohol level.

237

238

The presumptions provided in this subsection do not limit the

239

introduction of any other competent evidence bearing upon the

240

question of whether the person was under the influence of

241

alcoholic beverages to the extent that his or her normal

242

faculties were impaired.

243

     Section 4.  For the purpose of incorporating the amendment

244

made by this act to section 316.1933, Florida Statutes, in a

245

reference thereto, subsection (18) of section 322.2616, Florida

246

Statutes, is reenacted to read:

247

     322.2616  Suspension of license; persons under 21 years of

248

age; right to review.--

249

     (18)  The result of a blood test obtained during an

250

investigation conducted under s. 316.1932 or s. 316.1933 may be

251

used to suspend the driving privilege of a person under this

252

section.

253

     Section 5.  For the purpose of incorporating the amendment

254

made by this act to section 316.1933, Florida Statutes, in a

255

reference thereto, subsection (1) of section 322.27, Florida

256

Statutes, is reenacted to read:

257

     322.27  Authority of department to suspend or revoke

258

license.--

259

     (1)  Notwithstanding any provisions to the contrary in

260

chapter 120, the department is hereby authorized to suspend the

261

license of any person without preliminary hearing upon a showing

262

of its records or other sufficient evidence that the licensee:

263

     (a)  Has committed an offense for which mandatory revocation

264

of license is required upon conviction. A law enforcement agency

265

must provide information to the department within 24 hours after

266

any traffic fatality or when the law enforcement agency initiates

267

action pursuant to s. 316.1933;

268

     (b)  Has been convicted of a violation of any traffic law

269

which resulted in a crash that caused the death or personal

270

injury of another or property damage in excess of $500;

271

     (c)  Is incompetent to drive a motor vehicle;

272

     (d)  Has permitted an unlawful or fraudulent use of such

273

license or has knowingly been a party to the obtaining of a

274

license by fraud or misrepresentation or to display, or represent

275

as one's own, any driver's license not issued him or her.

276

Provided, however, no provision of this section shall be

277

construed to include the provisions of s. 322.32(1);

278

     (e)  Has committed an offense in another state which if

279

committed in this state would be grounds for suspension or

280

revocation; or

281

     (f)  Has committed a second or subsequent violation of s.

282

316.172(1) within a 5-year period of any previous violation.

283

     Section 6.  This act shall take effect July 1, 2008.