Florida Senate - 2009 SB 486
By Senator Gaetz
4-00511-09 2009486__
1 A bill to be entitled
2 An act relating to driving while the operator's
3 license is suspended or revoked; amending s. 322.34,
4 F.S.; removing provisions requiring a law enforcement
5 officer to immediately impound or immobilize a motor
6 vehicle under certain circumstances if the operator's
7 driver's license or driving privilege is suspended or
8 revoked; removing a requirement that the arresting
9 agency or towing service in possession of the
10 impounded or immobilized vehicle send notice to any
11 coregistered owner of the vehicle and to each person
12 of record claiming a lien against the vehicle;
13 requiring that a vehicle be impounded or immobilized
14 for specified periods depending on the seriousness of
15 the violation committed; prohibiting the court from
16 ordering that the impoundment or immobilization run
17 concurrently with the defendant's incarceration;
18 requiring that all costs of impounding or immobilizing
19 a vehicle be borne by the defendant; providing for a
20 person who owns or coowns a motor vehicle when a
21 violation of law was committed to petition the
22 sentencing court for an order setting aside the
23 impoundment or immobilization order; requiring that
24 the court set aside an impoundment or immobilization
25 order under certain circumstances; amending s.
26 932.701, F.S., relating to the Florida Contraband
27 Forfeiture Act; conforming a cross-reference;
28 providing an effective date.
29
30 Be It Enacted by the Legislature of the State of Florida:
31
32 Section 1. Section 322.34, Florida Statutes, is amended to
33 read:
34 322.34 Driving while license suspended, revoked, canceled,
35 or disqualified.—
36 (1) Except as provided in subsection (2), any person whose
37 driver's license or driving privilege has been canceled,
38 suspended, or revoked, except a “habitual traffic offender” as
39 defined in s. 322.264, who drives a vehicle upon the highways of
40 this state while the such license or privilege is canceled,
41 suspended, or revoked commits is guilty of a moving violation,
42 punishable as provided in chapter 318.
43 (2) Except as provided in subsection (9), any person whose
44 driver's license or driving privilege has been canceled,
45 suspended, or revoked as provided by law, except persons defined
46 in s. 322.264, who, knowing of such cancellation, suspension, or
47 revocation, drives any motor vehicle upon the highways of this
48 state while the such license or privilege is canceled,
49 suspended, or revoked, upon:
50 (a) A first conviction commits is guilty of a misdemeanor
51 of the second degree, punishable as provided in s. 775.082 or s.
52 775.083.
53 (b) A second conviction commits is guilty of a misdemeanor
54 of the first degree, punishable as provided in s. 775.082 or s.
55 775.083.
56 (c) A third or subsequent conviction commits is guilty of a
57 felony of the third degree, punishable as provided in s.
58 775.082, s. 775.083, or s. 775.084.
59 The element of knowledge is satisfied if the person has been
60 previously cited as provided in subsection (1); or the person
61 admits to knowledge of the cancellation, suspension, or
62 revocation; or the person received notice as provided in
63 subsection (4). There is shall be a rebuttable presumption that
64 the knowledge requirement is satisfied if a judgment or order as
65 provided in subsection (4) appears in the department's records
66 for any case except for one involving a suspension by the
67 department for failure to pay a traffic fine or for a financial
68 responsibility violation.
69 (3) In any proceeding for a violation of this section, a
70 court may consider evidence, other than that specified in
71 subsection (2), that the person knowingly violated this section.
72 (4) Any judgment or order rendered by a court or
73 adjudicatory body or any uniform traffic citation that cancels,
74 suspends, or revokes a person's driver's license must contain a
75 provision notifying the person that his or her driver's license
76 has been canceled, suspended, or revoked.
77 (5) Except as provided in subsection (9), any person whose
78 driver's license has been revoked pursuant to s. 322.264
79 (habitual offender) and who drives any motor vehicle upon the
80 highways of this state while the such license is revoked commits
81 is guilty of a felony of the third degree, punishable as
82 provided in s. 775.082, s. 775.083, or s. 775.084.
83 (6) Any person who operates a motor vehicle:
84 (a) Without having a driver's license as required under s.
85 322.03; or
86 (b) While his or her driver's license or driving privilege
87 is canceled, suspended, or revoked pursuant to s. 316.655, s.
88 322.26(8), s. 322.27(2), or s. 322.28(2) or (4),
89 and who by careless or negligent operation of the motor vehicle
90 causes the death of or serious bodily injury to another human
91 being commits is guilty of a felony of the third degree,
92 punishable as provided in s. 775.082 or s. 775.083.
93 (7) Any person whose driver's license or driving privilege
94 has been canceled, suspended, revoked, or disqualified and who
95 drives a commercial motor vehicle on the highways of this state
96 while the such license or privilege is canceled, suspended,
97 revoked, or disqualified, upon:
98 (a) A first conviction commits is guilty of a misdemeanor
99 of the first degree, punishable as provided in s. 775.082 or s.
100 775.083.
101 (b) A second or subsequent conviction commits is guilty of
102 a felony of the third degree, punishable as provided in s.
103 775.082, s. 775.083, or s. 775.084.
104 (8)(a) Upon the arrest of a person for the offense of
105 driving while the person's driver's license or driving privilege
106 is suspended or revoked, the arresting officer shall determine:
107 1. Whether the person's driver's license is suspended or
108 revoked.
109 2. Whether the person's driver's license has remained
110 suspended or revoked since a conviction for the offense of
111 driving with a suspended or revoked license.
112 3. Whether the suspension or revocation was made under s.
113 316.646 or s. 627.733, relating to failure to maintain required
114 security, or under s. 322.264, relating to habitual traffic
115 offenders.
116 4. Whether the driver is the registered owner or coowner of
117 the vehicle.
118 (b) If the arresting officer finds in the affirmative as to
119 all of the criteria in paragraph (a), the officer shall
120 immediately impound or immobilize the vehicle.
121 (c) Within 7 business days after the date the arresting
122 agency impounds or immobilizes the vehicle, either the arresting
123 agency or the towing service, whichever is in possession of the
124 vehicle, shall send notice by certified mail, return receipt
125 requested, to any coregistered owners of the vehicle other than
126 the person arrested and to each person of record claiming a lien
127 against the vehicle. All costs and fees for the impoundment or
128 immobilization, including the cost of notification, must be paid
129 by the owner of the vehicle or, if the vehicle is leased, by the
130 person leasing the vehicle.
131 (d) Either the arresting agency or the towing service,
132 whichever is in possession of the vehicle, shall determine
133 whether any vehicle impounded or immobilized under this section
134 has been leased or rented or if there are any persons of record
135 with a lien upon the vehicle. Either the arresting agency or the
136 towing service, whichever is in possession of the vehicle, shall
137 notify by express courier service with receipt or certified
138 mail, return receipt requested, within 7 business days after the
139 date of the immobilization or impoundment of the vehicle, the
140 registered owner and all persons having a recorded lien against
141 the vehicle that the vehicle has been impounded or immobilized.
142 A lessor, rental car company, or lienholder may then obtain the
143 vehicle, upon payment of any lawful towing or storage charges.
144 If the vehicle is a rental vehicle subject to a written
145 contract, the charges may be separately charged to the renter,
146 in addition to the rental rate, along with other separate fees,
147 charges, and recoupments disclosed on the rental agreement. If
148 the storage facility fails to provide timely notice to a lessor,
149 rental car company, or lienholder as required by this paragraph,
150 the storage facility shall be responsible for payment of any
151 towing or storage charges necessary to release the vehicle to a
152 lessor, rental car company, or lienholder that accrue after the
153 notice period, which charges may then be assessed against the
154 driver of the vehicle if the vehicle was lawfully impounded or
155 immobilized.
156 (e) Except as provided in paragraph (d), the vehicle shall
157 remain impounded or immobilized for any period imposed by the
158 court until:
159 1. The owner presents proof of insurance to the arresting
160 agency; or
161 2. The owner presents proof of sale of the vehicle to the
162 arresting agency and the buyer presents proof of insurance to
163 the arresting agency.
164 If proof is not presented within 35 days after the impoundment
165 or immobilization, a lien shall be placed upon such vehicle
166 pursuant to s. 713.78.
167 (f) The owner of a vehicle that is impounded or immobilized
168 under this subsection may, within 10 days after the date the
169 owner has knowledge of the location of the vehicle, file a
170 complaint in the county in which the owner resides to determine
171 whether the vehicle was wrongfully taken or withheld. Upon the
172 filing of a complaint, the owner may have the vehicle released
173 by posting with the court a bond or other adequate security
174 equal to the amount of the costs and fees for impoundment or
175 immobilization, including towing or storage, to ensure the
176 payment of such costs and fees if the owner does not prevail.
177 When the vehicle owner does not prevail on a complaint that the
178 vehicle was wrongfully taken or withheld, he or she must pay the
179 accrued charges for the immobilization or impoundment, including
180 any towing and storage charges assessed against the vehicle.
181 When the bond is posted and the fee is paid as set forth in s.
182 28.24, the clerk of the court shall issue a certificate
183 releasing the vehicle. At the time of release, after reasonable
184 inspection, the owner must give a receipt to the towing or
185 storage company indicating any loss or damage to the vehicle or
186 to the contents of the vehicle.
187 (8)(9)(a) A motor vehicle that is driven by a person under
188 the influence of alcohol or drugs in violation of s. 316.193 is
189 subject to seizure and forfeiture under ss. 932.701-932.706 and
190 is subject to liens for recovering, towing, or storing vehicles
191 under s. 713.78 if, at the time of the offense, the person's
192 driver's license is suspended, revoked, or canceled as a result
193 of a prior conviction for driving under the influence.
194 (b) The law enforcement officer shall notify the Department
195 of Highway Safety and Motor Vehicles of any impoundment or
196 seizure for violation of paragraph (a) in accordance with
197 procedures established by the department.
198 (c) Notwithstanding s. 932.703(1)(c) or s. 932.7055, when
199 the seizing agency obtains a final judgment granting forfeiture
200 of the motor vehicle under this section, 30 percent of the net
201 proceeds from the sale of the motor vehicle shall be retained by
202 the seizing law enforcement agency and 70 percent shall be
203 deposited in the General Revenue Fund for use by regional
204 workforce boards in providing transportation services for
205 participants of the welfare transition program. In a forfeiture
206 proceeding under this section, the court may consider the extent
207 that the family of the owner has other public or private means
208 of transportation.
209 (9)(10)(a) Notwithstanding any other provision of this
210 section, if a person does not have a prior forcible felony
211 conviction as defined in s. 776.08, the penalties provided in
212 paragraph (b) apply if a person's driver's license or driving
213 privilege is canceled, suspended, or revoked for:
214 1. Failing to pay child support as provided in s. 322.245
215 or s. 61.13016;
216 2. Failing to pay any other financial obligation as
217 provided in s. 322.245 other than those specified in s.
218 322.245(1);
219 3. Failing to comply with a civil penalty required in s.
220 318.15;
221 4. Failing to maintain vehicular financial responsibility
222 as required by chapter 324;
223 5. Failing to comply with attendance or other requirements
224 for minors as set forth in s. 322.091; or
225 6. Having been designated a habitual traffic offender under
226 s. 322.264(1)(d) as a result of suspensions of his or her
227 driver's license or driver privilege for any underlying
228 violation listed in subparagraphs 1.-5.
229 (b)1. Upon a first conviction for knowingly driving while
230 his or her license is suspended, revoked, or canceled for any of
231 the underlying violations listed in subparagraphs (a)1.-6., a
232 person commits a misdemeanor of the second degree, punishable as
233 provided in s. 775.082 or s. 775.083.
234 2. Upon a second or subsequent conviction for the same
235 offense of knowingly driving while his or her license is
236 suspended, revoked, or canceled for any of the underlying
237 violations listed in subparagraphs (a)1.-6., a person commits a
238 misdemeanor of the first degree, punishable as provided in s.
239 775.082 or s. 775.083.
240 (10)(a) Except for a person convicted under subsection (7),
241 at the time of sentencing the court shall order the impoundment
242 or immobilization of any motor vehicle that was operated by,
243 under the actual control of, or registered in the name of the
244 defendant, as follows:
245 1. For a second-degree misdemeanor the impoundment or
246 immobilization shall be for 5 days;
247 2. For a first-degree misdemeanor the impoundment or
248 immobilization shall be for 10 days; and
249 3. For a third-degree felony the impoundment or
250 immobilization shall be for 30 days.
251 (b) The court may not order the impoundment or
252 immobilization to run concurrently with any incarceration of the
253 defendant.
254 (c) All costs of impoundment or immobilization must be
255 borne by the defendant.
256 (11)(a) A person who owns or coowns but who was not
257 operating the motor vehicle when a violation of this section was
258 committed may petition the sentencing court for an order setting
259 aside the impoundment or immobilization order. In support of the
260 petition, the person must submit to the sentencing court a
261 police report demonstrating that the motor vehicle was stolen at
262 the time the violation of this section was committed or
263 documentation showing that the vehicle was purchased after the
264 offense was committed from a person other than the defendant or
265 the defendant's agent. If the court finds that the vehicle was
266 stolen or that the sale was not made to circumvent the order of
267 impoundment or immobilization, the order of impoundment or
268 immobilization shall be set aside and the vehicle returned to
269 the owner. If the owner of the vehicle prevails, he or she is
270 not liable for costs.
271 (b) The court shall dismiss the order of impoundment or
272 immobilization if the court finds that the family of the owner
273 of the vehicle has no other private or public means of
274 transportation.
275 Section 2. Paragraph (a) of subsection (2) of section
276 932.701, Florida Statutes, is amended to read:
277 932.701 Short title; definitions.—
278 (2) As used in the Florida Contraband Forfeiture Act:
279 (a) “Contraband article” means:
280 1. Any controlled substance as defined in chapter 893 or
281 any substance, device, paraphernalia, or currency or other means
282 of exchange that was used, was attempted to be used, or was
283 intended to be used in violation of any provision of chapter
284 893, if the totality of the facts presented by the state is
285 clearly sufficient to meet the state's burden of establishing
286 probable cause to believe that a nexus exists between the
287 article seized and the narcotics activity, whether or not the
288 use of the contraband article can be traced to a specific
289 narcotics transaction.
290 2. Any gambling paraphernalia, lottery tickets, money,
291 currency, or other means of exchange which was used, was
292 attempted, or intended to be used in violation of the gambling
293 laws of the state.
294 3. Any equipment, liquid or solid, which was being used, is
295 being used, was attempted to be used, or intended to be used in
296 violation of the beverage or tobacco laws of the state.
297 4. Any motor fuel upon which the motor fuel tax has not
298 been paid as required by law.
299 5. Any personal property, including, but not limited to,
300 any vessel, aircraft, item, object, tool, substance, device,
301 weapon, machine, vehicle of any kind, money, securities, books,
302 records, research, negotiable instruments, or currency, which
303 was used or was attempted to be used as an instrumentality in
304 the commission of, or in aiding or abetting in the commission
305 of, any felony, whether or not comprising an element of the
306 felony, or which is acquired by proceeds obtained as a result of
307 a violation of the Florida Contraband Forfeiture Act.
308 6. Any real property, including any right, title,
309 leasehold, or other interest in the whole of any lot or tract of
310 land, which was used, is being used, or was attempted to be used
311 as an instrumentality in the commission of, or in aiding or
312 abetting in the commission of, any felony, or which is acquired
313 by proceeds obtained as a result of a violation of the Florida
314 Contraband Forfeiture Act.
315 7. Any personal property, including, but not limited to,
316 equipment, money, securities, books, records, research,
317 negotiable instruments, currency, or any vessel, aircraft, item,
318 object, tool, substance, device, weapon, machine, or vehicle of
319 any kind in the possession of or belonging to any person who
320 takes aquaculture products in violation of s. 812.014(2)(c).
321 8. Any motor vehicle offered for sale in violation of s.
322 320.28.
323 9. Any motor vehicle used during the course of committing
324 an offense in violation of s. 322.34(8)(a) s. 322.34(9)(a).
325 10. Any photograph, film, or other recorded image,
326 including an image recorded on videotape, a compact disc,
327 digital tape, or fixed disk, that is recorded in violation of s.
328 810.145 and is possessed for the purpose of amusement,
329 entertainment, sexual arousal, gratification, or profit, or for
330 the purpose of degrading or abusing another person.
331 11. Any real property, including any right, title,
332 leasehold, or other interest in the whole of any lot or tract of
333 land, which is acquired by proceeds obtained as a result of
334 Medicaid fraud under s. 409.920 or s. 409.9201; any personal
335 property, including, but not limited to, equipment, money,
336 securities, books, records, research, negotiable instruments, or
337 currency; or any vessel, aircraft, item, object, tool,
338 substance, device, weapon, machine, or vehicle of any kind in
339 the possession of or belonging to any person which is acquired
340 by proceeds obtained as a result of Medicaid fraud under s.
341 409.920 or s. 409.9201.
342 Section 3. This act shall take effect July 1, 2009.