Florida Senate - 2009 SB 1588 By Senator Altman 24-01653-09 20091588__ 1 A bill to be entitled 2 An act relating to the impoundment or immobilization 3 of vehicles; amending s. 316.193, F.S.; providing that 4 for a first conviction for driving under the influence 5 of alcohol or a controlled substance, in addition to 6 other penalties imposed by the court, the court must 7 order that the person's vehicle be impounded or 8 immobilized for 10 days and that the person pay an 9 impoundment or immobilization fee of $200 per vehicle; 10 providing that for a second conviction for driving 11 under the influence of alcohol or a controlled 12 substance, the court must order that the person's 13 vehicle be impounded or immobilized for 30 days and 14 that the offender pay an impoundment or immobilization 15 fee of $300 per vehicle; providing that for a third or 16 subsequent conviction for driving under the influence 17 of alcohol or a controlled substance, the court must 18 order that the person's vehicle be impounded or 19 immobilized for 90 days and that the offender pay an 20 impoundment or immobilization fee of $400 per vehicle; 21 requiring the court to include the name and address of 22 the impound or immobilization agency in the order 23 impounding or immobilizing the vehicle; requiring the 24 person whose vehicle is impounded or immobilized to 25 pay an administration fee to the impoundment agency; 26 establishing professional criteria for persons who are 27 engaged in the business of impounding or immobilizing 28 vehicles in judicial circuits where personnel of the 29 court or sheriff do not impound or immobilize 30 vehicles; providing that a person commits a 31 misdemeanor of the first degree if he or she violates 32 the provisions to qualify a person to impound or 33 immobilize a vehicle; authorizing a person to initiate 34 a civil suit against a person who fails to comply with 35 requirements for qualifying to impound or immobilize a 36 vehicle; providing for attorney's fees and costs; 37 defining the terms “immobilization,” “immobilize,” and 38 “immobilizing,” and “impound,” “impounding,” and 39 “impoundment"; providing an effective date. 40 41 Be It Enacted by the Legislature of the State of Florida: 42 43 Section 1. Paragraphs (a), (b), (c), (d), and (i) of 44 subsection (6) of section 316.193, Florida Statutes, are 45 amended, and subsections (13) and (14) are added to that 46 section, to read: 47 316.193 Driving under the influence; penalties.— 48 (6) With respect to any person convicted of a violation of 49 subsection (1), regardless of any penalty imposed pursuant to 50 subsection (2), subsection (3), or subsection (4): 51 (a) For the first conviction, the court shall place the 52 defendant on probation for a period not to exceed 1 year and, as 53 a condition of such probation, shall order the defendant to 54 participate in public service or a community work project for a 55 minimum of 50 hours; or the court may order instead, that any 56 defendant pay an additional fine of $10 for each hour of public 57 service or community work otherwise required, if, after 58 consideration of the residence or location of the defendant at 59 the time public service or community work is required, payment 60 of the fine is in the best interests of the state. However, the 61 total period of probation and incarceration may not exceed 1 62 year. The court must also, as a condition of probation, order 63 the impoundment or immobilization of the vehicle that was 64 operated by or in the actual control of the defendant or any one 65 vehicle registered in the defendant's name at the time of 66 impoundment or immobilization, for a period of 10 days or for 67 the unexpired term of any lease or rental agreement that expires 68 within 10 days. The fee for a 10-day period of impoundment or 69 immobilization shall be $200, plus an annual percentage increase 70 based on the Annual Consumer Price Index compiled by the United 71 States Department of Labor, beginning with the Annual Consumer 72 Price Index announced by the United States Department of Labor 73 for 2010. The impoundment or immobilization must not occur 74 concurrently with the incarceration of the defendant. The 75 impoundment or immobilization order may be dismissed in 76 accordance with paragraph (e), paragraph (f), paragraph (g), or 77 paragraph (h). 78 (b) For the second conviction for an offense that occurs 79 within a period of 5 years after the date of a prior conviction 80 for violation of this section, the court shall order 81 imprisonment for not less than 10 days. The court must also, as 82 a condition of probation, order the impoundment or 83 immobilization of all vehicles owned by the defendant at the 84 time of impoundment or immobilization, for a period of 30 days 85 or for the unexpired term of any lease or rental agreement that 86 expires within 30 days. The fee for a 30-day period of 87 impoundment or immobilization shall be $300 per vehicle, plus an 88 annual percentage increase based on the Annual Consumer Price 89 Index compiled by the United States Department of Labor, 90 beginning with the Annual Consumer Price Index announced by the 91 United States Department of Labor for 2010. The impoundment or 92 immobilization must not occur concurrently with the 93 incarceration of the defendant and must occur concurrently with 94 the driver's license revocation imposed under s. 322.28(2)(a)2. 95 The impoundment or immobilization order may be dismissed in 96 accordance with paragraph (e), paragraph (f), paragraph (g), or 97 paragraph (h). At least 48 hours of confinement must be 98 consecutive. 99 (c) For the third or subsequent conviction for an offense 100 that occurs within a period of 10 years after the date of a 101 prior conviction for violation of this section, the court shall 102 order imprisonment for not less than 30 days. The court must 103 also, as a condition of probation, order the impoundment or 104 immobilization of all vehicles owned by the defendant at the 105 time of impoundment or immobilization, for a period of 90 days 106 or for the unexpired term of any lease or rental agreement that 107 expires within 90 days. The fee for a 90-day period of 108 impoundment or immobilization shall be $400 per vehicle, plus an 109 annual percentage increase based on the Annual Consumer Price 110 Index compiled by the United States Department of Labor, 111 beginning with the Annual Consumer Price Index announced by the 112 United States Department of Labor for 2010. The impoundment or 113 immobilization must not occur concurrently with the 114 incarceration of the defendant and must occur concurrently with 115 the driver's license revocation imposed under s. 322.28(2)(a)3. 116 The impoundment or immobilization order may be dismissed in 117 accordance with paragraph (e), paragraph (f), paragraph (g), or 118 paragraph (h). At least 48 hours of confinement must be 119 consecutive. 120 (d) The court must at the time of sentencing the defendant 121 issue an order for the impoundment or immobilization of a 122 vehicle which must include the name and telephone number of the 123 impoundment or immobilization agency. Within 7 business days 124 after the date that the court issues the order of impoundment or 125 immobilization, the clerk of the court must send notice by 126 certified mail, return receipt requested, to the registered 127 owner of each vehicle, if the registered owner is a person other 128 than the defendant, and to each person of record claiming a lien 129 against the vehicle. 130 (i) All costs and fees for the impoundment or 131 immobilization, including the cost of notification and a $50 132 administrative cost payable to the impoundment agency, must be 133 paid by the owner of the vehicle or, if the vehicle is leased or 134 rented, by the person leasing or renting the vehicle, unless the 135 impoundment or immobilization order is dismissed. All provisions 136 of s. 713.78 shall apply. 137 For the purposes of this section, any conviction for a violation 138 of s. 327.35; a previous conviction for the violation of former 139 s. 316.1931, former s. 860.01, or former s. 316.028; or a 140 previous conviction outside this state for driving under the 141 influence, driving while intoxicated, driving with an unlawful 142 blood-alcohol level, driving with an unlawful breath-alcohol 143 level, or any other similar alcohol-related or drug-related 144 traffic offense, is also considered a previous conviction for 145 violation of this section. However, in satisfaction of the fine 146 imposed pursuant to this section, the court may, upon a finding 147 that the defendant is financially unable to pay either all or 148 part of the fine, order that the defendant participate for a 149 specified additional period of time in public service or a 150 community work project in lieu of payment of that portion of the 151 fine which the court determines the defendant is unable to pay. 152 In determining such additional sentence, the court shall 153 consider the amount of the unpaid portion of the fine and the 154 reasonable value of the services to be ordered; however, the 155 court may not compute the reasonable value of services at a rate 156 less than the federal minimum wage at the time of sentencing. 157 (13) If personnel of the circuit court or the sheriff do 158 not impound or immobilize vehicles, the person responsible for 159 impounding or immobilizing vehicles in that judicial circuit is 160 subject to strict compliance with the following conditions and 161 restrictions: 162 (a) Any person engaged in the business of impounding or 163 immobilizing vehicles shall: 164 1. Have a class “R” license issued pursuant to part IV of 165 chapter 493; 166 2. Have at least 1 year of verifiable experience in 167 immobilizing or impounding vehicles; 168 3. Have a storage facility within the judicial circuit of 169 not less than 10,000 square feet. However, if a judicial circuit 170 has fewer than 1,000 convictions for driving under the influence 171 based on the Florida Uniform Traffic Citations Statistic Report, 172 beginning with the 2008 Florida Uniform Traffic Citations 173 Statistic Report, the storage facility must be not less than 174 5,000 square feet. The storage facility must be licensed in the 175 name of the person who impounds or immobilizes vehicles by the 176 local government where the storage facility is located; and 177 4. Maintain accurate and complete records of all payments 178 for the impoundment or immobilization, copies of all documents 179 pertaining to the court’s order of impoundment or 180 immobilization, and any other documents relevant to each 181 impoundment or immobilization. These records must be maintained 182 by the impoundment or immobilization operator for at least 3 183 years. 184 (b) The individual who impounds or immobilizes a vehicle 185 must not have been convicted of any felony or of driving or 186 boating under the influence of alcohol or controlled substances. 187 (c) A person who violates paragraph (a) or paragraph (b) 188 commits a misdemeanor of the first degree, punishable as 189 provided in s. 775.082 or s. 775.083. 190 (d) Any person who is aggrieved by a person’s violation of 191 paragraph (a) may bring a civil action against the person 192 seeking injunctive relief, actual damages, reasonable attorney's 193 fees and costs, and any other remedy available at law or in 194 equity. 195 (14) As used in this chapter, the terms: 196 (a) “Immobilization,” “immobilizing,” or “immobilize” mean 197 the act of installing a vehicle antitheft device on the steering 198 wheel of a vehicle to prevent any person from operating the 199 vehicle. 200 (b) “Impoundment,” “impounding,” or “impound” means the act 201 of storing a vehicle at a storage facility where the person 202 impounding the vehicle exercises control, supervision, and 203 responsibility over the vehicle. 204 Section 2. This act shall take effect July 1, 2009.