Florida Senate - 2011                                     SB 824
       
       
       
       By Senator Bogdanoff
       
       
       
       
       25-00412B-11                                           2011824__
    1                        A bill to be entitled                      
    2         An act relating to driving while the operator’s driver
    3         license is suspended or revoked; amending s. 322.34,
    4         F.S.; specifying exceptions to certain penalties for a
    5         person driving a motor vehicle while the person’s
    6         driver’s license is canceled, suspended, or revoked;
    7         removing provisions requiring a law enforcement
    8         officer to immediately impound or immobilize a motor
    9         vehicle under certain circumstances if the operator’s
   10         driver’s license or driving privilege is suspended or
   11         revoked; removing a requirement that the arresting
   12         agency or towing service in possession of the
   13         impounded or immobilized motor vehicle send notice to
   14         any coregistered owner of the motor vehicle and to
   15         each person of record claiming a lien against the
   16         motor vehicle; requiring that a motor vehicle be
   17         impounded or immobilized for specified periods
   18         depending on the seriousness of the violation
   19         committed; prohibiting the court from ordering that
   20         the impoundment or immobilization run concurrently
   21         with the defendant’s incarceration; requiring that all
   22         costs of impounding or immobilizing a motor vehicle be
   23         borne by the defendant; providing for a person who
   24         owns or coowns a motor vehicle when a violation of law
   25         was committed to petition the sentencing court for an
   26         order setting aside the impoundment or immobilization
   27         order; requiring that the court set aside or dismiss
   28         an impoundment or immobilization order under certain
   29         circumstances; amending s. 932.701, F.S., relating to
   30         the Florida Contraband Forfeiture Act; conforming a
   31         cross-reference; providing an effective date.
   32  
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Section 322.34, Florida Statutes, is amended to
   36  read:
   37         322.34 Driving while license suspended, revoked, canceled,
   38  or disqualified.—
   39         (1) Except as provided in subsection (2), any person whose
   40  driver’s license or driving privilege has been canceled,
   41  suspended, or revoked, except a “habitual traffic offender” as
   42  defined in s. 322.264, who drives a vehicle upon the highways of
   43  this state while the such license or privilege is canceled,
   44  suspended, or revoked commits is guilty of a moving violation,
   45  punishable as provided in chapter 318.
   46         (2) Except as provided in subsection (9), any person whose
   47  driver’s license or driving privilege has been canceled,
   48  suspended, or revoked as provided by law, except persons defined
   49  in s. 322.264, who, knowing of such cancellation, suspension, or
   50  revocation, drives any motor vehicle upon the highways of this
   51  state while the such license or privilege is canceled,
   52  suspended, or revoked, upon:
   53         (a) A first conviction is guilty of a misdemeanor of the
   54  second degree, punishable as provided in s. 775.082 or s.
   55  775.083.
   56         (b) A second conviction is guilty of a misdemeanor of the
   57  first degree, punishable as provided in s. 775.082 or s.
   58  775.083.
   59         (c) A third or subsequent conviction is guilty of a felony
   60  of the third degree, punishable as provided in s. 775.082, s.
   61  775.083, or s. 775.084.
   62  
   63  The element of knowledge is satisfied if the person has been
   64  previously cited as provided in subsection (1); or the person
   65  admits to knowledge of the cancellation, suspension, or
   66  revocation; or the person received notice as provided in
   67  subsection (4). There is shall be a rebuttable presumption that
   68  the knowledge requirement is satisfied if a judgment or order as
   69  provided in subsection (4) appears in the department’s records
   70  for any case except for one involving a suspension by the
   71  department for failure to pay a traffic fine or for a financial
   72  responsibility violation.
   73         (3) In any proceeding for a violation of this section, a
   74  court may consider evidence, other than that specified in
   75  subsection (2), that the person knowingly violated this section.
   76         (4) Any judgment or order rendered by a court or
   77  adjudicatory body or any uniform traffic citation that cancels,
   78  suspends, or revokes a person’s driver’s license must contain a
   79  provision notifying the person that his or her driver’s license
   80  has been canceled, suspended, or revoked.
   81         (5) Except as provided in subsection (9), any person whose
   82  driver’s license has been revoked pursuant to s. 322.264
   83  (habitual offender) and who drives any motor vehicle upon the
   84  highways of this state while the such license is revoked commits
   85  is guilty of a felony of the third degree, punishable as
   86  provided in s. 775.082, s. 775.083, or s. 775.084.
   87         (6) Any person who operates a motor vehicle:
   88         (a) Without having a driver’s license as required under s.
   89  322.03; or
   90         (b) While his or her driver’s license or driving privilege
   91  is canceled, suspended, or revoked pursuant to s. 316.655, s.
   92  322.26(8), s. 322.27(2), or s. 322.28(2) or (4),
   93  
   94  and who by careless or negligent operation of the motor vehicle
   95  causes the death of or serious bodily injury to another human
   96  being commits is guilty of a felony of the third degree,
   97  punishable as provided in s. 775.082 or s. 775.083.
   98         (7) Any person whose driver’s license or driving privilege
   99  has been canceled, suspended, revoked, or disqualified and who
  100  drives a commercial motor vehicle on the highways of this state
  101  while the such license or privilege is canceled, suspended,
  102  revoked, or disqualified, upon:
  103         (a) A first conviction is guilty of a misdemeanor of the
  104  first degree, punishable as provided in s. 775.082 or s.
  105  775.083.
  106         (b) A second or subsequent conviction is guilty of a felony
  107  of the third degree, punishable as provided in s. 775.082, s.
  108  775.083, or s. 775.084.
  109         (8)(a)Upon the arrest of a person for the offense of
  110  driving while the person’s driver’s license or driving privilege
  111  is suspended or revoked, the arresting officer shall determine:
  112         1.Whether the person’s driver’s license is suspended or
  113  revoked.
  114         2.Whether the person’s driver’s license has remained
  115  suspended or revoked since a conviction for the offense of
  116  driving with a suspended or revoked license.
  117         3.Whether the suspension or revocation was made under s.
  118  316.646 or s. 627.733, relating to failure to maintain required
  119  security, or under s. 322.264, relating to habitual traffic
  120  offenders.
  121         4.Whether the driver is the registered owner or coowner of
  122  the vehicle.
  123         (b)If the arresting officer finds in the affirmative as to
  124  all of the criteria in paragraph (a), the officer shall
  125  immediately impound or immobilize the vehicle.
  126         (c)Within 7 business days after the date the arresting
  127  agency impounds or immobilizes the vehicle, either the arresting
  128  agency or the towing service, whichever is in possession of the
  129  vehicle, shall send notice by certified mail to any coregistered
  130  owners of the vehicle other than the person arrested and to each
  131  person of record claiming a lien against the vehicle. All costs
  132  and fees for the impoundment or immobilization, including the
  133  cost of notification, must be paid by the owner of the vehicle
  134  or, if the vehicle is leased, by the person leasing the vehicle.
  135         (d)Either the arresting agency or the towing service,
  136  whichever is in possession of the vehicle, shall determine
  137  whether any vehicle impounded or immobilized under this section
  138  has been leased or rented or if there are any persons of record
  139  with a lien upon the vehicle. Either the arresting agency or the
  140  towing service, whichever is in possession of the vehicle, shall
  141  notify by express courier service with receipt or certified mail
  142  within 7 business days after the date of the immobilization or
  143  impoundment of the vehicle, the registered owner and all persons
  144  having a recorded lien against the vehicle that the vehicle has
  145  been impounded or immobilized. A lessor, rental car company, or
  146  lienholder may then obtain the vehicle, upon payment of any
  147  lawful towing or storage charges. If the vehicle is a rental
  148  vehicle subject to a written contract, the charges may be
  149  separately charged to the renter, in addition to the rental
  150  rate, along with other separate fees, charges, and recoupments
  151  disclosed on the rental agreement. If the storage facility fails
  152  to provide timely notice to a lessor, rental car company, or
  153  lienholder as required by this paragraph, the storage facility
  154  shall be responsible for payment of any towing or storage
  155  charges necessary to release the vehicle to a lessor, rental car
  156  company, or lienholder that accrue after the notice period,
  157  which charges may then be assessed against the driver of the
  158  vehicle if the vehicle was lawfully impounded or immobilized.
  159         (e)Except as provided in paragraph (d), the vehicle shall
  160  remain impounded or immobilized for any period imposed by the
  161  court until:
  162         1.The owner presents proof of insurance to the arresting
  163  agency; or
  164         2.The owner presents proof of sale of the vehicle to the
  165  arresting agency and the buyer presents proof of insurance to
  166  the arresting agency.
  167  
  168  If proof is not presented within 35 days after the impoundment
  169  or immobilization, a lien shall be placed upon such vehicle
  170  pursuant to s. 713.78.
  171         (f)The owner of a vehicle that is impounded or immobilized
  172  under this subsection may, within 10 days after the date the
  173  owner has knowledge of the location of the vehicle, file a
  174  complaint in the county in which the owner resides to determine
  175  whether the vehicle was wrongfully taken or withheld. Upon the
  176  filing of a complaint, the owner or lienholder may have the
  177  vehicle released by posting with the court a bond or other
  178  adequate security equal to the amount of the costs and fees for
  179  impoundment or immobilization, including towing or storage, to
  180  ensure the payment of such costs and fees if the owner or
  181  lienholder does not prevail. When the vehicle owner or
  182  lienholder does not prevail on a complaint that the vehicle was
  183  wrongfully taken or withheld, he or she must pay the accrued
  184  charges for the immobilization or impoundment, including any
  185  towing and storage charges assessed against the vehicle. When
  186  the bond is posted and the fee is paid as set forth in s. 28.24,
  187  the clerk of the court shall issue a certificate releasing the
  188  vehicle. At the time of release, after reasonable inspection,
  189  the owner must give a receipt to the towing or storage company
  190  indicating any loss or damage to the vehicle or to the contents
  191  of the vehicle.
  192         (8)(9)(a) A motor vehicle that is driven by a person under
  193  the influence of alcohol or drugs in violation of s. 316.193 is
  194  subject to seizure and forfeiture under ss. 932.701-932.706 and
  195  is subject to liens for recovering, towing, or storing vehicles
  196  under s. 713.78 if, at the time of the offense, the person’s
  197  driver’s license is suspended, revoked, or canceled as a result
  198  of a prior conviction for driving under the influence.
  199         (b) The law enforcement officer shall notify the Department
  200  of Highway Safety and Motor Vehicles of any impoundment or
  201  seizure for violation of paragraph (a) in accordance with
  202  procedures established by the department.
  203         (c) Notwithstanding s. 932.703(1)(c) or s. 932.7055, when
  204  the seizing agency obtains a final judgment granting forfeiture
  205  of the motor vehicle under this section, 30 percent of the net
  206  proceeds from the sale of the motor vehicle shall be retained by
  207  the seizing law enforcement agency and 70 percent shall be
  208  deposited in the General Revenue Fund for use by regional
  209  workforce boards in providing transportation services for
  210  participants of the welfare transition program. In a forfeiture
  211  proceeding under this section, the court may consider the extent
  212  that the family of the owner has other public or private means
  213  of transportation.
  214         (9)(10)(a) Notwithstanding any other provision of this
  215  section, if a person does not have a prior forcible felony
  216  conviction as defined in s. 776.08, the penalties provided in
  217  paragraph (b) apply if a person’s driver’s license or driving
  218  privilege is canceled, suspended, or revoked for:
  219         1. Failing to pay child support as provided in s. 322.245
  220  or s. 61.13016;
  221         2. Failing to pay any other financial obligation as
  222  provided in s. 322.245 other than those specified in s.
  223  322.245(1);
  224         3. Failing to comply with a civil penalty required in s.
  225  318.15;
  226         4. Failing to maintain vehicular financial responsibility
  227  as required by chapter 324;
  228         5. Failing to comply with attendance or other requirements
  229  for minors as set forth in s. 322.091; or
  230         6. Having been designated a habitual traffic offender under
  231  s. 322.264(1)(d) as a result of suspensions of his or her
  232  driver’s license or driver privilege for any underlying
  233  violation listed in subparagraphs 1.-5.
  234         (b)1. Upon a first conviction for knowingly driving while
  235  his or her license is suspended, revoked, or canceled for any of
  236  the underlying violations listed in subparagraphs (a)1.-6., a
  237  person is guilty of commits a misdemeanor of the second degree,
  238  punishable as provided in s. 775.082 or s. 775.083.
  239         2. Upon a second or subsequent conviction for the same
  240  offense of knowingly driving while his or her license is
  241  suspended, revoked, or canceled for any of the underlying
  242  violations listed in subparagraphs (a)1.-6., a person is guilty
  243  of commits a misdemeanor of the first degree, punishable as
  244  provided in s. 775.082 or s. 775.083.
  245         (10)(a)When a person is convicted of a violation of this
  246  section, except for a person convicted under subsection (7), at
  247  the time of sentencing, the court shall order the impoundment or
  248  immobilization of any motor vehicle that was operated by, under
  249  the actual control of, or registered in the name of the
  250  defendant as follows:
  251         1.For a misdemeanor of the second degree, the impoundment
  252  or immobilization shall be for 5 days.
  253         2.For a misdemeanor of the first degree, the impoundment
  254  or immobilization shall be for 10 days.
  255         3.For a felony of the third degree, the impoundment or
  256  immobilization shall be for 30 days.
  257         (b)The court may not order the impoundment or
  258  immobilization to run concurrently with any incarceration of the
  259  defendant.
  260         (c)All costs of impoundment or immobilization must be
  261  borne by the defendant.
  262         (11)(a)A person who owns or coowns but who was not
  263  operating the motor vehicle when a violation of this section was
  264  committed may petition the sentencing court for an order setting
  265  aside the impoundment or immobilization order. In support of the
  266  petition, the person must submit to the sentencing court a
  267  police report demonstrating that the motor vehicle was stolen at
  268  the time the violation of this section was committed or
  269  documentation showing that the motor vehicle was purchased after
  270  the offense was committed from a person other than the defendant
  271  or the defendant’s agent. If the court finds that the motor
  272  vehicle was stolen or that the sale was not made to circumvent
  273  the order of impoundment or immobilization, the order of
  274  impoundment or immobilization shall be set aside and the motor
  275  vehicle shall be returned to the owner. If the owner of the
  276  motor vehicle prevails, the owner is not liable for costs.
  277         (b)The court shall dismiss the order of impoundment or
  278  immobilization if the court finds that the family of the owner
  279  of the motor vehicle has no other private or public means of
  280  transportation.
  281         (12)(11)(a) A person who does not hold a commercial
  282  driver’s license and who is cited for an offense of knowingly
  283  driving while his or her license is suspended, revoked, or
  284  canceled for any of the underlying violations listed in
  285  paragraph (9)(10)(a) may, in lieu of payment of fine or court
  286  appearance, elect to enter a plea of nolo contendere and provide
  287  proof of compliance to the clerk of the court, designated
  288  official, or authorized operator of a traffic violations bureau.
  289  In such case, adjudication shall be withheld. However, no
  290  election shall be made under this subsection if such person has
  291  made an election under this subsection during the preceding 12
  292  months. A person may not make more than three elections under
  293  this subsection.
  294         (b) If adjudication is withheld under paragraph (a), such
  295  action is not a conviction.
  296         Section 2. Paragraph (a) of subsection (2) of section
  297  932.701, Florida Statutes, is amended to read:
  298         932.701 Short title; definitions.—
  299         (2) As used in the Florida Contraband Forfeiture Act:
  300         (a) “Contraband article” means:
  301         1. Any controlled substance as defined in chapter 893 or
  302  any substance, device, paraphernalia, or currency or other means
  303  of exchange that was used, was attempted to be used, or was
  304  intended to be used in violation of any provision of chapter
  305  893, if the totality of the facts presented by the state is
  306  clearly sufficient to meet the state’s burden of establishing
  307  probable cause to believe that a nexus exists between the
  308  article seized and the narcotics activity, whether or not the
  309  use of the contraband article can be traced to a specific
  310  narcotics transaction.
  311         2. Any gambling paraphernalia, lottery tickets, money,
  312  currency, or other means of exchange which was used, was
  313  attempted, or intended to be used in violation of the gambling
  314  laws of the state.
  315         3. Any equipment, liquid or solid, which was being used, is
  316  being used, was attempted to be used, or intended to be used in
  317  violation of the beverage or tobacco laws of the state.
  318         4. Any motor fuel upon which the motor fuel tax has not
  319  been paid as required by law.
  320         5. Any personal property, including, but not limited to,
  321  any vessel, aircraft, item, object, tool, substance, device,
  322  weapon, machine, vehicle of any kind, money, securities, books,
  323  records, research, negotiable instruments, or currency, which
  324  was used or was attempted to be used as an instrumentality in
  325  the commission of, or in aiding or abetting in the commission
  326  of, any felony, whether or not comprising an element of the
  327  felony, or which is acquired by proceeds obtained as a result of
  328  a violation of the Florida Contraband Forfeiture Act.
  329         6. Any real property, including any right, title,
  330  leasehold, or other interest in the whole of any lot or tract of
  331  land, which was used, is being used, or was attempted to be used
  332  as an instrumentality in the commission of, or in aiding or
  333  abetting in the commission of, any felony, or which is acquired
  334  by proceeds obtained as a result of a violation of the Florida
  335  Contraband Forfeiture Act.
  336         7. Any personal property, including, but not limited to,
  337  equipment, money, securities, books, records, research,
  338  negotiable instruments, currency, or any vessel, aircraft, item,
  339  object, tool, substance, device, weapon, machine, or vehicle of
  340  any kind in the possession of or belonging to any person who
  341  takes aquaculture products in violation of s. 812.014(2)(c).
  342         8. Any motor vehicle offered for sale in violation of s.
  343  320.28.
  344         9. Any motor vehicle used during the course of committing
  345  an offense in violation of s. 322.34(8)(9)(a).
  346         10. Any photograph, film, or other recorded image,
  347  including an image recorded on videotape, a compact disc,
  348  digital tape, or fixed disk, that is recorded in violation of s.
  349  810.145 and is possessed for the purpose of amusement,
  350  entertainment, sexual arousal, gratification, or profit, or for
  351  the purpose of degrading or abusing another person.
  352         11. Any real property, including any right, title,
  353  leasehold, or other interest in the whole of any lot or tract of
  354  land, which is acquired by proceeds obtained as a result of
  355  Medicaid fraud under s. 409.920 or s. 409.9201; any personal
  356  property, including, but not limited to, equipment, money,
  357  securities, books, records, research, negotiable instruments, or
  358  currency; or any vessel, aircraft, item, object, tool,
  359  substance, device, weapon, machine, or vehicle of any kind in
  360  the possession of or belonging to any person which is acquired
  361  by proceeds obtained as a result of Medicaid fraud under s.
  362  409.920 or s. 409.9201.
  363         Section 3. This act shall take effect July 1, 2011.