Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. SB 864
       
       
       
       
       
       
                                Barcode 878914                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: RS            .                                
                  02/09/2012           .                                
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       The Committee on Criminal Justice (Dean) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (6) of section 316.193, Florida
    6  Statutes, is amended to read:
    7         316.193 Driving under the influence; penalties.—
    8         (6) With respect to any person convicted of a violation of
    9  subsection (1), regardless of any penalty imposed pursuant to
   10  subsection (2), subsection (3), or subsection (4):
   11         (a) For the first conviction, the court shall place the
   12  defendant on probation for a period not to exceed 1 year and, as
   13  a condition of the such probation, shall order the defendant to
   14  participate in public service or a community work project for a
   15  minimum of 50 hours. The court may order a defendant to pay a
   16  fine of $10 for each hour of public service or community work
   17  otherwise required only if the court finds that the residence or
   18  location of the defendant at the time public service or
   19  community work is required or the defendant’s employment
   20  obligations would create an undue hardship for the defendant.
   21  However, The total period of probation and incarceration may not
   22  exceed 1 year. The court must also, as a condition of probation,
   23  order:
   24         1. The impoundment or immobilization of the vehicle that
   25  was operated by or was in the actual control of the defendant or
   26  any one vehicle registered in the defendant’s name at the time
   27  of impoundment or immobilization, for a period of 10 days or for
   28  the unexpired term of any lease or rental agreement that expires
   29  within 10 days. The impoundment or immobilization must not occur
   30  concurrently with the incarceration of the defendant. The
   31  impoundment or immobilization order may be dismissed in
   32  accordance with paragraph (e), paragraph (f), paragraph (g), or
   33  paragraph (h); and
   34         2. The installation of an interlock ignition device in
   35  accordance with s. 316.1938 on all vehicles that are
   36  individually or jointly leased or owned and routinely operated
   37  by the defendant for at least 3 continuous months.
   38         (b) For the second conviction for an offense that occurs
   39  within a period of 5 years after the date of a prior conviction
   40  for violation of this section, the court shall order
   41  imprisonment for at least not less than 10 days. The court must
   42  also, as a condition of probation, order:
   43         1. The impoundment or immobilization of all vehicles owned
   44  by the defendant at the time of impoundment or immobilization,
   45  for a period of 30 days or for the unexpired term of any lease
   46  or rental agreement that expires within 30 days; and
   47         2. The installation of an interlock ignition device in
   48  accordance with s. 316.1938 on all vehicles that are
   49  individually or jointly leased or owned and routinely operated
   50  by the defendant for at least 6 continuous months.
   51  
   52  The impoundment, or immobilization, or installation of an
   53  ignition interlock device under this paragraph must not occur
   54  concurrently with the incarceration of the defendant, but, not
   55  including the installation of an ignition interlock device under
   56  this paragraph, and must occur concurrently with the driver
   57  driver’s license revocation imposed under s. 322.28(2)(a)2. The
   58  impoundment or immobilization order may be dismissed in
   59  accordance with paragraph (e), paragraph (f), paragraph (g), or
   60  paragraph (h). At least 48 hours of confinement must be
   61  consecutive.
   62         (c) For the third or subsequent conviction for an offense
   63  that occurs within a period of 10 years after the date of a
   64  prior conviction for violation of this section, the court shall
   65  order imprisonment for at least not less than 30 days. The court
   66  must also, as a condition of probation, order:
   67         1. The impoundment or immobilization of all vehicles owned
   68  by the defendant at the time of impoundment or immobilization,
   69  for a period of 90 days or for the unexpired term of any lease
   70  or rental agreement that expires within 90 days; and
   71         2. The installation of an interlock ignition device in
   72  accordance with s. 316.1938 upon all vehicles that are
   73  individually or jointly leased or owned and routinely operated
   74  by the defendant for at least 12 continuous months.
   75  
   76  The impoundment, or immobilization, or installation of an
   77  ignition interlock device under this paragraph must not occur
   78  concurrently with the incarceration of the defendant, but, not
   79  including the installation of an ignition interlock device under
   80  this paragraph, and must occur concurrently with the driver
   81  driver’s license revocation imposed under s. 322.28(2)(a)3. The
   82  impoundment or immobilization order may be dismissed in
   83  accordance with paragraph (e), paragraph (f), paragraph (g), or
   84  paragraph (h). At least 48 hours of confinement must be
   85  consecutive.
   86         (d) The court must, at the time of sentencing the
   87  defendant, issue an order for:
   88         1. The impoundment or immobilization of a vehicle; and
   89         2. The installation of an ignition interlock device.
   90  
   91  The order of impoundment or immobilization must include the name
   92  and telephone numbers of all immobilization agencies meeting all
   93  of the conditions of subsection (13). Within 7 business days
   94  after the date that the court issues the order of impoundment or
   95  immobilization, the clerk of the court must send notice by
   96  certified mail, return receipt requested, to the registered
   97  owner of each vehicle, if the registered owner is a person other
   98  than the defendant, and to each person of record claiming a lien
   99  against the vehicle.
  100         (e) A person who owns but was not operating the vehicle
  101  when the offense occurred may submit to the court a police
  102  report indicating that the vehicle was stolen at the time of the
  103  offense or documentation of having purchased the vehicle after
  104  the offense was committed from an entity other than the
  105  defendant or the defendant’s agent. If the court finds that the
  106  vehicle was stolen or that the sale was not made to circumvent
  107  the order and to allow the defendant continued access to the
  108  vehicle, the order must be dismissed, and the owner of the
  109  vehicle will incur no costs. If the court denies the request to
  110  dismiss the order of impoundment or immobilization, the
  111  petitioner may request an evidentiary hearing.
  112         (f) A person who owns but was not operating the vehicle
  113  when the offense occurred, and whose vehicle was stolen or who
  114  purchased the vehicle after the offense was committed directly
  115  from the defendant or the defendant’s agent, may request an
  116  evidentiary hearing to determine whether the impoundment or
  117  immobilization should occur. If the court finds that either the
  118  vehicle was stolen or the purchase was made without knowledge of
  119  the offense, that the purchaser had no relationship to the
  120  defendant other than through the transaction, and that the such
  121  purchase would not circumvent the order and allow the defendant
  122  continued access to the vehicle, the order must be dismissed,
  123  and the owner of the vehicle will incur no costs.
  124         (g) The court shall also dismiss the order of impoundment
  125  or immobilization of the vehicle if the court finds that the
  126  family of the owner of the vehicle has no other private or
  127  public means of transportation.
  128         (h) The court may also dismiss the order of impoundment or
  129  immobilization of any vehicle vehicles that is are owned by the
  130  defendant but that is are operated solely by the employees of
  131  the defendant or any business owned by the defendant.
  132         (i) All costs and fees for the impoundment or
  133  immobilization, including the cost of notification, must be paid
  134  by the owner of the vehicle or, if the vehicle is leased or
  135  rented, by the person leasing or renting the vehicle, unless the
  136  impoundment or immobilization order is dismissed. All provisions
  137  of s. 713.78 shall apply. The costs and fees for the impoundment
  138  or immobilization must be paid directly to the person impounding
  139  or immobilizing the vehicle.
  140         (j) The person who owns a vehicle that is impounded or
  141  immobilized under this subsection paragraph, or a person who has
  142  a lien of record against such a vehicle and who has not
  143  requested a review of the impoundment pursuant to paragraph (e),
  144  paragraph (f), or paragraph (g), may, within 10 days after the
  145  date that person has knowledge of the location of the vehicle,
  146  file a complaint in the county in which the owner resides to
  147  determine whether the vehicle was wrongfully taken or withheld
  148  from the owner or lienholder. Upon the filing of a complaint,
  149  the owner or lienholder may have the vehicle released by posting
  150  with the court a bond or other adequate security equal to the
  151  amount of the costs and fees for impoundment or immobilization,
  152  including towing or storage, to ensure the payment of such costs
  153  and fees if the owner or lienholder does not prevail. When the
  154  bond is posted and the fee is paid as set forth in s. 28.24, the
  155  clerk of the court shall issue a certificate releasing the
  156  vehicle. At the time of release, after reasonable inspection,
  157  the owner or lienholder must give a receipt to the towing or
  158  storage company indicating any loss or damage to the vehicle or
  159  to the contents of the vehicle.
  160         (k) A defendant, in the court’s discretion, may be required
  161  to serve all or any portion of a term of imprisonment to which
  162  the defendant has been sentenced pursuant to this section in a
  163  residential alcoholism treatment program or a residential drug
  164  abuse treatment program. Any time spent in such a program must
  165  be credited by the court toward the term of imprisonment.
  166  
  167  For the purposes of this section, a any conviction for a
  168  violation of s. 327.35; a previous conviction for the violation
  169  of former s. 316.1931, former s. 860.01, or former s. 316.028;
  170  or a previous conviction outside this state for driving under
  171  the influence, driving while intoxicated, driving with an
  172  unlawful blood-alcohol level, driving with an unlawful breath
  173  alcohol level, or any other similar alcohol-related or drug
  174  related traffic offense, is also considered a previous
  175  conviction for violation of this section. However, in
  176  satisfaction of the fine imposed pursuant to this section, the
  177  court may, upon a finding that the defendant is financially
  178  unable to pay either all or part of the fine, order that the
  179  defendant participate for a specified additional period of time
  180  in public service or a community work project in lieu of payment
  181  of that portion of the fine which the court determines the
  182  defendant is unable to pay. In determining such additional
  183  sentence, the court shall consider the amount of the unpaid
  184  portion of the fine and the reasonable value of the services to
  185  be ordered; however, the court may not compute the reasonable
  186  value of services at a rate less than the federal minimum wage
  187  at the time of sentencing.
  188         Section 2. This act shall take effect July 1, 2012.
  189  
  190  ================= T I T L E A M E N D M E N T ================
  191         And the title is amended as follows:
  192         Delete everything before the enacting clause
  193  and insert:
  194                        A bill to be entitled                      
  195         An act relating to interlock ignition devices ordered
  196         for probation for DUI; amending s. 316.193, F.S.;
  197         requiring that the court, as a condition of probation
  198         for a conviction of the offense of driving under the
  199         influence, impound or immobilize the vehicle that was
  200         operated by or was in the actual control of the
  201         defendant or require the defendant to install an
  202         interlock ignition device on all vehicles that are
  203         individually or jointly leased or owned and routinely
  204         operated by the defendant; prohibiting the
  205         installation of an ignition interlock device from
  206         occurring concurrently with the incarceration of the
  207         defendant; providing an exception from a requirement
  208         that the installation of an ignition interlock device
  209         occur concurrently with the driver license revocation;
  210         providing an effective date.