HB 889

1
A bill to be entitled
2An act relating to highway safety; creating the "Deputy
3Michael Callin, Michael Haligowski, and Deputy Ryan C.
4Seguin Memorial Traffic Safety Act"; amending s. 322.251,
5F.S.; requiring impoundment and immobilization information
6to be included with notice to a person whose driver
7license or driving privilege is being canceled, suspended,
8revoked, or disqualified; amending s. 322.34, F.S.;
9requiring impoundment and immobilization information to be
10included with notice to a person whose driver license or
11driving privilege is being canceled, suspended, revoked,
12or disqualified; requiring a law enforcement officer who
13determines that a motor vehicle is being driven by or is
14under the actual physical control of a person whose driver
15license or driving privilege is canceled, suspended,
16revoked, or disqualified to impound or immobilize the
17motor vehicle; providing for notice to the driver;
18providing for notice to registered owners of the motor
19vehicle and lienholders; providing for exceptions;
20providing for the Department of Highway Safety and Motor
21Vehicles to commence impoundment or immobilization at the
22scene where the motor vehicle was immobilized; providing
23procedures; providing for release of the motor vehicle;
24requiring department records to contain impoundment and
25immobilization information; providing for a lien under
26specified provisions for charges accrued for recovery,
27towing, or storage services; requiring notice to the
28owner, insurance company insuring the motor vehicle, and
29lienholders of record; providing for the owner's right to
30a hearing; providing for sale of the motor vehicle free of
31liens after a certain timeframe; providing for
32distribution of proceeds from such sale; providing for
33certain fees and distribution of moneys collected;
34requiring the department to authorize release of the motor
35vehicle under certain circumstances; prohibiting operation
36of an immobilized motor vehicle; providing for an
37immobilized motor vehicle that is found being operated
38upon any street or highway in this state before release
39from immobilization to be seized and subject to forfeit;
40authorizing the department to contract with vendors;
41directing the department to inform the person whose driver
42license or driving privilege has been canceled, suspended,
43revoked, or disqualified that any motor vehicle driven by
44or under the actual physical control of that person is
45subject to impoundment and immobilization; authorizing the
46department to adopt rules; providing penalties for
47knowingly aiding a person whose driver license or driving
48privilege is canceled, suspended, revoked, or disqualified
49by providing a motor vehicle or authorizing use of a motor
50vehicle; directing the department to inform drivers whose
51license or driving privilege has been canceled, suspended,
52revoked, or disqualified and the motoring public of the
53provisions for impoundment and immobilization of motor
54vehicles under this act; providing effective dates.
55
56Be It Enacted by the Legislature of the State of Florida:
57
58     Section 1.  This act may be cited as the "Deputy Michael
59Callin, Michael Haligowski, and Deputy Ryan C. Seguin Memorial
60Traffic Safety Act."
61     Section 2.  Subsection (1) of section 322.251, Florida
62Statutes, is amended to read:
63     322.251  Notice of cancellation, suspension, revocation, or
64disqualification of license.--
65     (1)  All orders of cancellation, suspension, revocation, or
66disqualification issued under the provisions of this chapter,
67chapter 318, chapter 324, or ss. 627.732-627.734 shall be given
68either by personal delivery thereof to the licensee whose
69license is being canceled, suspended, revoked, or disqualified
70or by deposit in the United States mail in an envelope, first
71class, postage prepaid, addressed to the licensee at his or her
72last known mailing address furnished to the department. Such
73mailing by the department constitutes notification, and any
74failure by the person to receive the mailed order will not
75affect or stay the effective date or term of the cancellation,
76suspension, revocation, or disqualification of the licensee's
77driving privilege. Notification of cancellation, suspension,
78revocation, or disqualification given by the department under
79this section shall also inform the person whose license or
80driving privilege is being canceled, suspended, revoked, or
81disqualified that any motor vehicle driven by or under the
82actual physical control of that person while the license or
83driving privilege is canceled, suspended, revoked, or
84disqualified is subject to impoundment and immobilization under
85s. 322.34.
86     Section 3.  Effective July 1, 2010, subsections (3), (4),
87and (8) of section 322.34, Florida Statutes, are amended, and
88subsection (11) is added to that section, to read:
89     322.34  Driving while license suspended, revoked, canceled,
90or disqualified.--
91     (3)  In any proceeding for a violation of this section, a
92court may consider evidence, other than that specified in
93subsection (2) or subsection (11), that the person knowingly
94violated this section.
95     (4)  Any judgment or order rendered by a court or
96adjudicatory body that cancels, suspends, revokes, or
97disqualifies a person's driver's license, or any uniform traffic
98citation that cancels, suspends, or revokes, or disqualifies a
99person's driver's license, and any notice of cancellation,
100suspension, revocation, or disqualification of a person's
101driver's license by the department must contain a provision
102notifying the person that his or her driver's license is being
103has been canceled, suspended, or revoked, or disqualified and
104must inform the person that any motor vehicle driven by that
105person while the license is canceled, suspended, revoked, or
106disqualified shall be impounded or immobilized pursuant to this
107section.
108     (8)(a)1.  If a law enforcement officer determines that a
109motor vehicle is being driven by or is under the actual physical
110control of a person whose driver's license or driving privilege
111is canceled, suspended, revoked, or disqualified, the officer
112shall immediately impound the motor vehicle, immobilize the
113motor vehicle by installing an immobilization device on the
114motor vehicle, or immobilize the motor vehicle by removing the
115registration license plate. The officer shall serve notice of
116the impoundment or immobilization upon the driver. The notice
117shall include the location where the motor vehicle is being held
118and information on the procedures to have the motor vehicle
119released from impoundment or immobilization by a department-
120approved vendor. A law enforcement agency or officer who
121proceeds in good faith to immobilize or impound a vehicle under
122this section is not responsible for any towing, immobilizing, or
123impounding fees. A law enforcement officer may immobilize the
124motor vehicle by removing the registration license plate and
125leave the scene of the impoundment or immobilization without
126completing the impoundment or immobilization process if the
127officer is ordered elsewhere by his or her superior officer or
128an emergency elsewhere or other exigent circumstance compels the
129officer to leave.
130     2.  If the officer determines the driver's license is
131suspended for a failure to pay traffic infractions and the
132driver has not previously been warned of immobilization or
133impoundment, the officer shall provide a warning and shall not
134impound or immobilize the motor vehicle. The agency issuing the
135warning shall transmit the individual offender's name to the
136department, which shall provide notice to the driver pursuant to
137paragraph (h).
138     3.  A law enforcement officer impounding or immobilizing a
139motor vehicle under subparagraph 1. shall notify the department
140or the department's agent within 24 hours to effect impoundment
141or immobilization under this paragraph. If the officer removed
142the registration license plate, the plate shall be delivered to
143the department or the department's agent. The department or the
144department's agent shall remove and impound or immobilize the
145motor vehicle at another location; however, the impounding
146company shall not release the motor vehicle for immobilization
147at another location without proof that the immobilization vendor
148is approved by the department. The department is authorized to
149adopt by rule procedures for removal and immobilization of the
150motor vehicle by a department-approved vendor from the location
151where the motor vehicle was impounded or immobilized by the law
152enforcement officer under subparagraph 1.
153     (b)1.  A motor vehicle impounded or immobilized under
154paragraph (a) that, according to the records of the department,
155is owned by the person who was driving or in actual physical
156control of the motor vehicle when it was stopped and impounded
157or immobilized shall be released from impoundment or
158immobilization when the owner receives authorization for release
159of the motor vehicle under paragraph (e) and all costs of
160towing, impoundment, immobilization, and storage are paid.
161     a.  If department records show that the driver's license
162cancellation, suspension, revocation, or disqualification is
163based on any criminal conviction, the motor vehicle must be
164removed to an impound lot or immobilized by installing an
165immobilization device and removed to another location.
166     b.  If department records show that the driver is
167designated a habitual traffic offender under s. 322.264 whose
168license has been revoked under s. 322.27(5) and whose driving
169privilege has not been restored, the motor vehicle must be
170removed to an impound lot or immobilized by installing an
171immobilization device and removed to another location.
172     2.  If department records show that the motor vehicle is
173owned or leased by a person other than the driver, the motor
174vehicle shall be released to the owner or lessee or the owner's
175or lessee's agent upon payment of all costs of towing,
176impoundment, immobilization, and storage.
177     3.  The department's records shall reflect that the motor
178vehicle is impounded or immobilized.
179     (c)  Notice by certified mail shall be sent within 7
180business days after the date of storage of the motor vehicle to
181the registered owner, the insurance company insuring the motor
182vehicle notwithstanding the provisions of s. 627.736, and all
183persons of record claiming a lien against the motor vehicle. The
184notice shall state the fact of possession of the motor vehicle,
185that a lien as provided in s. 713.78(2) is claimed, that charges
186have accrued and the amount thereof, that the lien is subject to
187enforcement pursuant to law, that the owner or lienholder, if
188any, has the right to a hearing as set forth in s. 713.78(5),
189and that any motor vehicle that remains unclaimed or for which
190the charges for recovery, towing, or storage services remain
191unpaid may be sold free of all prior liens after 35 days if the
192motor vehicle is more than 3 years of age or after 50 days if
193the motor vehicle is 3 years of age or less.
194     1.  If attempts to locate the name and address of the owner
195or lienholder prove unsuccessful, the towing-storage operator
196shall, after 7 working days following the initial tow or
197storage, excluding Saturday and Sunday, notify the public agency
198of jurisdiction in writing by certified mail or acknowledged
199hand delivery that the towing-storage company has been unable to
200locate the name and address of the owner or lienholder, a
201physical search of the motor vehicle has disclosed no ownership
202information, and a good faith effort has been made. For purposes
203of this subparagraph, "good faith effort" means that the
204following checks have been performed by the company to establish
205a prior state of registration, if any, and for title:
206     a.  A check of the motor vehicle for any type of tag, tag
207record, temporary tag, or regular tag.
208     b.  A check of the law enforcement report for the tag
209number or other information identifying the motor vehicle if the
210motor vehicle was towed at the request of a law enforcement
211officer.
212     c.  A check of the trip sheet or tow ticket of the tow
213truck operator to determine whether a tag was on the motor
214vehicle at the beginning of the tow, if a private tow.
215     d.  If there is no address of the owner on the impound
216report, a check of the law enforcement report to determine
217whether an out-of-state address is indicated by the driver's
218license information.
219     e.  A check of the motor vehicle for an inspection sticker
220or any other sticker or decal that might indicate a state of
221possible registration.
222     f.  A check of the interior of the motor vehicle for any
223papers that might be in the glove box, trunk, or other areas for
224a state of registration.
225     g.  A check of the motor vehicle for its vehicle
226identification number.
227     2.  Proceeds of the sale under this paragraph shall be used
228in the following order of priority:
229     a.  For payment of the costs of the sale, including payment
230of the cost of mailing and publication of notice.
231     b.  For payment of the costs of towing, impoundment,
232immobilization, and storage.
233     c.  For payment of the fees imposed under subparagraphs
234(d)1. and 2., in that order of priority.
235     d.  For payment of any valid claim made by any lienholder
236of record.
237     e.  For payment of any outstanding traffic-related fines or
238fees owed by the motor vehicle owner.
239     f.  Proceeds remaining after distribution under sub-
240subparagraphs a.-e. shall be remitted to the owner of the motor
241vehicle.
242     (d)1.  The department shall collect a $35 processing fee
243prior to release to the owner of any motor vehicle impounded or
244immobilized under this subsection. Five dollars of the fee shall
245be distributed to the law enforcement agency that initiated the
246impoundment or immobilization. The remaining $30 shall be
247forwarded to the Department of Revenue, which shall:
248     a.  Deposit $10 of the fee into the State Transportation
249Trust Fund created under s. 206.46 to be used to carry out
250public transit responsibilities of the Department of
251Transportation under s. 341.041.
252     b.  Remit $5 of the fee to the Florida Law Enforcement
253Memorial Fund of the Florida State Lodge of the Fraternal Order
254of Police to be used to provide funds for the Law Enforcement
255Memorial Monument on the grounds of the Florida Capitol and to
256provide support to surviving colleagues and families of officers
257who have lost their lives serving the citizens of the state.
258     c.  Remit $5 of the fee to the Department of Highway Safety
259and Motor Vehicles for public service announcements warning
260motorists that any motor vehicle driven by a person whose
261license has been canceled, suspended, revoked, or disqualified
262is subject to impoundment or immobilization.
263     d.  Remit $10 of the fee to the state courts system for
264deposit into the Operating Trust Fund created under s. 25.3844.
265     2.  The department shall charge a reasonable fee, not to
266exceed $6, to the owner or lessee of the motor vehicle to cover
267the operational costs related to immobilizing or impounding
268motor vehicles. Fees collected under this subparagraph shall be
269deposited in the Highway Safety Operating Trust Fund of the
270Department of Highway Safety and Motor Vehicles.
271     3.  Notwithstanding any other law to the contrary, that
272portion of any outstanding fine or fee collected pursuant to
273this subsection which is not otherwise allocated by law or which
274is allocated to the General Revenue Fund shall be remitted by
275the Department of Revenue to the Operating Trust Fund created in
276s. 25.3844.
277     4.  Fees required under this paragraph for release of a
278motor vehicle, as well as fines and fees required for
279reinstatement of a person's license and privilege to drive, may
280be satisfied by community service pursuant to s. 318.18(8) as
281authorized by the court. This subparagraph does not apply to the
282payment of costs of towing, impoundment, immobilization, and
283storage.
284     (e)  The department must authorize release of the motor
285vehicle to the owner upon payment of the fees imposed under
286paragraph (d); payment of all costs of towing, impoundment,
287immobilization, and storage as required under paragraph (c); and
288satisfaction of one of the following conditions:
289     1.  The license and driving privilege of the driver are
290reinstated;
291     2.  The clerk of court verifies that all outstanding
292traffic fines and related fees and costs owed by the driver have
293been satisfied;
294     3.  The motor vehicle has been sold and the title of the
295motor vehicle has been transferred;
296     4.  The driver submits to the department a statement that
297the family of the driver living in the same household has no
298other private or public means of transportation and at least one
299household member has a valid driver's license that is not
300canceled, suspended, revoked, or disqualified, which statement
301is verified by the department using department records; or
302     5.  The motor vehicle has been sold pursuant to s. 713.78.
303     (f)  A motor vehicle immobilized under this subsection may
304not be operated in this state until released from immobilization
305by the department or the department's agent. A motor vehicle
306immobilized under this subsection that is found being operated
307upon any street or highway in this state before being released
308by the department or the department's agent shall be seized and
309removed from the street or highway and may be forfeited pursuant
310to ss. 932.701-932.704.
311     (g)  The department may contract with vendors to carry out
312the provisions of this subsection.
313     (h)  Notification of cancellation, suspension, revocation,
314or disqualification given by the department under s. 322.251
315shall also inform the person whose driver's license or driving
316privilege is being canceled, suspended, revoked, or disqualified
317that any motor vehicle driven by or under the actual physical
318control of that person while the license or driving privilege is
319canceled, suspended, revoked, or disqualified is subject to
320impoundment and immobilization under this subsection.
321     (i)  The department may adopt rules pursuant to ss.
322120.536(1) and 120.54 to implement the provisions of this
323subsection. Upon the arrest of a person for the offense of
324driving while the person's driver's license or driving privilege
325is suspended or revoked, the arresting officer shall determine:
326     1.  Whether the person's driver's license is suspended or
327revoked.
328     2.  Whether the person's driver's license has remained
329suspended or revoked since a conviction for the offense of
330driving with a suspended or revoked license.
331     3.  Whether the suspension or revocation was made under s.
332316.646 or s. 627.733, relating to failure to maintain required
333security, or under s. 322.264, relating to habitual traffic
334offenders.
335     4.  Whether the driver is the registered owner or coowner
336of the vehicle.
337     (b)  If the arresting officer finds in the affirmative as
338to all of the criteria in paragraph (a), the officer shall
339immediately impound or immobilize the vehicle.
340     (c)  Within 7 business days after the date the arresting
341agency impounds or immobilizes the vehicle, either the arresting
342agency or the towing service, whichever is in possession of the
343vehicle, shall send notice by certified mail, return receipt
344requested, to any coregistered owners of the vehicle other than
345the person arrested and to each person of record claiming a lien
346against the vehicle. All costs and fees for the impoundment or
347immobilization, including the cost of notification, must be paid
348by the owner of the vehicle or, if the vehicle is leased, by the
349person leasing the vehicle.
350     (d)  Either the arresting agency or the towing service,
351whichever is in possession of the vehicle, shall determine
352whether any vehicle impounded or immobilized under this section
353has been leased or rented or if there are any persons of record
354with a lien upon the vehicle. Either the arresting agency or the
355towing service, whichever is in possession of the vehicle, shall
356notify by express courier service with receipt or certified
357mail, return receipt requested, within 7 business days after the
358date of the immobilization or impoundment of the vehicle, the
359registered owner and all persons having a recorded lien against
360the vehicle that the vehicle has been impounded or immobilized.
361A lessor, rental car company, or lienholder may then obtain the
362vehicle, upon payment of any lawful towing or storage charges.
363If the vehicle is a rental vehicle subject to a written
364contract, the charges may be separately charged to the renter,
365in addition to the rental rate, along with other separate fees,
366charges, and recoupments disclosed on the rental agreement. If
367the storage facility fails to provide timely notice to a lessor,
368rental car company, or lienholder as required by this paragraph,
369the storage facility shall be responsible for payment of any
370towing or storage charges necessary to release the vehicle to a
371lessor, rental car company, or lienholder that accrue after the
372notice period, which charges may then be assessed against the
373driver of the vehicle if the vehicle was lawfully impounded or
374immobilized.
375     (e)  Except as provided in paragraph (d), the vehicle shall
376remain impounded or immobilized for any period imposed by the
377court until:
378     1.  The owner presents proof of insurance to the arresting
379agency; or
380     2.  The owner presents proof of sale of the vehicle to the
381arresting agency and the buyer presents proof of insurance to
382the arresting agency.
383
384If proof is not presented within 35 days after the impoundment
385or immobilization, a lien shall be placed upon such vehicle
386pursuant to s. 713.78.
387     (f)  The owner of a vehicle that is impounded or
388immobilized under this subsection may, within 10 days after the
389date the owner has knowledge of the location of the vehicle,
390file a complaint in the county in which the owner resides to
391determine whether the vehicle was wrongfully taken or withheld.
392Upon the filing of a complaint, the owner may have the vehicle
393released by posting with the court a bond or other adequate
394security equal to the amount of the costs and fees for
395impoundment or immobilization, including towing or storage, to
396ensure the payment of such costs and fees if the owner does not
397prevail. When the vehicle owner does not prevail on a complaint
398that the vehicle was wrongfully taken or withheld, he or she
399must pay the accrued charges for the immobilization or
400impoundment, including any towing and storage charges assessed
401against the vehicle. When the bond is posted and the fee is paid
402as set forth in s. 28.24, the clerk of the court shall issue a
403certificate releasing the vehicle. At the time of release, after
404reasonable inspection, the owner must give a receipt to the
405towing or storage company indicating any loss or damage to the
406vehicle or to the contents of the vehicle.
407     (11)  Any owner or lessee of a motor vehicle who knowingly
408allows, permits, or authorizes a person whose driver's license
409or driving privilege has been canceled, suspended, revoked, or
410disqualified to drive the motor vehicle upon the streets or
411highways of this state or knowingly gives, leases, lends, or
412otherwise provides the motor vehicle to a person whose driver's
413license or driving privilege has been canceled, suspended,
414revoked, or disqualified while such license or privilege is
415canceled, suspended, revoked, or disqualified commits a
416misdemeanor of the second degree, punishable as provided in s.
417775.082 or s. 775.083. The element of knowledge is satisfied if
418the owner or lessee has been previously charged under this
419subsection for providing a motor vehicle to the same person; the
420owner admits to knowledge of the cancellation, suspension,
421revocation, or disqualification of the driver's license or
422driving privilege of the driver; or the owner received notice as
423provided in subsection (8) relating to the same driver.
424     Section 4.  The Department of Highway Safety and Motor
425Vehicles shall inform the motoring public of the changes to s.
426322.34, Florida Statutes, made by this act relating to
427impoundment or immobilization of a motor vehicle being driven by
428a person whose driver license is canceled, suspended, revoked,
429or disqualified and shall provide such information in newly
430printed driver license educational materials after July 1, 2009,
431and in public service announcements produced in cooperation with
432the Florida Highway Patrol.
433     Section 5.  During the period from July 1, 2009, to July 1,
4342010, the Department of Highway Safety and Motor Vehicles shall
435notify by mail persons whose driver license or driving privilege
436has been canceled, suspended, revoked, or disqualified of the
437changes to s. 322.34, Florida Statutes, made by this act
438relating to impoundment or immobilization of a motor vehicle
439being driven by such person; however, failure to receive such
440notification does not preclude, bar, or otherwise affect the
441impoundment or immobilization of a motor vehicle under s.
442322.34, Florida Statutes.
443     Section 6.  Except as otherwise expressly provided in this
444act, this act shall take effect July 1, 2009.


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