Florida Senate - 2012 SB 864
By Senator Altman
24-00717-12 2012864__
1 A bill to be entitled
2 An act relating to driving under the influence;
3 amending s. 316.193, F.S.; requiring that the court,
4 as a condition of probation for a conviction of the
5 offense of driving under the influence, impound or
6 immobilize the vehicle that was operated by or was in
7 the actual control of the defendant or require the
8 defendant to install an interlock ignition device on
9 all vehicles that are individually or jointly leased
10 or owned and routinely operated by the defendant;
11 prohibiting the installation of an ignition interlock
12 device from occurring concurrently with the
13 incarceration of the defendant; requiring that the
14 installation occur concurrently with the driver
15 license revocation; amending s. 322.2615, F.S.;
16 requiring that a law enforcement officer issue to the
17 person driving under the influence a notice of
18 suspension of the person’s driving privilege and a
19 notice of the person’s obligation to appear at a
20 designated office of the Department of Highway Safety
21 and Motor Vehicles under certain circumstances;
22 providing that the notice of suspension acts as a 10
23 day temporary driving privilege; authorizing a driver
24 to submit materials relevant to the suspension at a
25 review hearing if the driver elected to have a review
26 hearing and if he or she appeared at the department
27 office after receipt of the notice of suspension and
28 notice to appear; requiring that the driver appear at
29 a department office after receipt of the notice of
30 suspension and notice to appear; requiring that the
31 department reinstate, under certain circumstances, the
32 driver’s driving privilege restricted to business
33 purposes only; providing that if the driver fails to
34 appear as required, his or her license will remain
35 suspended and all rights of review will be waived;
36 authorizing the department to extend the time for a
37 person to apply for a restricted driver license;
38 setting forth the restrictions applicable to a
39 person’s driving privilege; providing that if a person
40 accepts the reinstated driving privilege restricted to
41 business purposes only, he or she is deemed to have
42 waived the right to a formal review of the request to
43 submit to a breath, blood, or urine test and a formal
44 review of the suspension of his or her driving
45 privilege; requiring that the department notify the
46 person in writing of his or her right to review the
47 driving suspension if he or she is not eligible for
48 driving privileges restricted to business purposes
49 only; requiring that the department provide the person
50 with certain information; requiring that the
51 department issue a temporary permit if the person is
52 otherwise eligible for the driving privilege;
53 providing that the temporary permit is restricted to
54 driving for employment purposes only; authorizing a
55 driver to request a formal or informal review of the
56 suspension of his or her driving privilege; providing
57 that a person electing to seek a formal review is
58 deemed to have waived the right to a restricted
59 driving privilege; authorizing a hearing officer to
60 receive testimony from witnesses appearing at a formal
61 or informal review hearing telephonically; requiring
62 that a law enforcement officer submit all materials
63 relating to the notice of suspension and the notice to
64 appear to the department in electronic form;
65 authorizing witnesses to appear at a formal review
66 hearing telephonically; authorizing a party to seek
67 enforcement of a subpoena for a review hearing by
68 filing a motion for enforcement in a criminal court
69 case resulting from the incident that gave rise to the
70 suspension; prohibiting the department from being a
71 party to the subpoena action; prohibiting the hearing
72 officer from considering the lawfulness of the arrest
73 in reviewing a suspension; providing that the
74 temporary permit that the department issues, if the
75 formal review hearing is continued at the department’s
76 initiative, grants a driving privilege restricted to
77 employment purposes only; requiring that a law
78 enforcement agency desiring to appeal a decision of
79 the department file the petition for writ of
80 certiorari to the circuit court in the county in which
81 the law enforcement agency is located for telephonic
82 hearings; requiring that the department remove the
83 restriction from a person’s driver license if the
84 person is found not guilty of certain violations;
85 amending s. 322.2616, F.S.; deleting the requirement
86 that the informal review hearing include materials
87 submitted by the person whose license is suspended;
88 providing procedures for a formal review hearing for
89 the suspension of driving privileges for a person
90 under 21 years of age; amending s. 322.2715, F.S.;
91 authorizing a convicted person to elect to install an
92 ignition interlock device on all vehicles that are
93 individually or jointly leased or owned and routinely
94 operated by the convicted person, in lieu of the 5- or
95 10-year license revocation period otherwise required
96 by law; requiring that the ignition interlock device
97 be installed for specified periods; amending s.
98 322.64, F.S.; requiring that the disqualification of a
99 driver from operating a commercial motor vehicle be
100 treated as conviction of driving with an unlawful
101 blood-alcohol or breath-alcohol level under certain
102 circumstances; providing hearing procedures for the
103 revocation of a commercial motor vehicle license for a
104 commercial driver convicted of the offense of driving
105 under the influence; providing an effective date.
106
107 Be It Enacted by the Legislature of the State of Florida:
108
109 Section 1. Subsection (6) of section 316.193, Florida
110 Statutes, is amended to read:
111 316.193 Driving under the influence; penalties.—
112 (6) With respect to any person convicted of a violation of
113 subsection (1), regardless of any penalty imposed pursuant to
114 subsection (2), subsection (3), or subsection (4):
115 (a) For the first conviction, the court shall place the
116 defendant on probation for a period not to exceed 1 year and, as
117 a condition of the such probation, shall order the defendant to
118 participate in public service or a community work project for a
119 minimum of 50 hours. The court may order a defendant to pay a
120 fine of $10 for each hour of public service or community work
121 otherwise required only if the court finds that the residence or
122 location of the defendant at the time public service or
123 community work is required or the defendant’s employment
124 obligations would create an undue hardship for the defendant.
125 However, The total period of probation and incarceration may not
126 exceed 1 year. The court must also, as a condition of probation,
127 order:
128 1. The impoundment or immobilization of the vehicle that
129 was operated by or was in the actual control of the defendant or
130 any one vehicle registered in the defendant’s name at the time
131 of impoundment or immobilization, for a period of 10 days or for
132 the unexpired term of any lease or rental agreement that expires
133 within 10 days. The impoundment or immobilization must not occur
134 concurrently with the incarceration of the defendant. The
135 impoundment or immobilization order may be dismissed in
136 accordance with paragraph (e), paragraph (f), paragraph (g), or
137 paragraph (h); or
138 2. The installation of an interlock ignition device in
139 accordance with s. 316.1938 on all vehicles that are
140 individually or jointly leased or owned and routinely operated
141 by the defendant for at least 3 continuous months.
142 (b) For the second conviction for an offense that occurs
143 within a period of 5 years after the date of a prior conviction
144 for violation of this section, the court shall order
145 imprisonment for at least not less than 10 days. The court must
146 also, as a condition of probation, order:
147 1. The impoundment or immobilization of all vehicles owned
148 by the defendant at the time of impoundment or immobilization,
149 for a period of 30 days or for the unexpired term of any lease
150 or rental agreement that expires within 30 days; or
151 2. The installation of an interlock ignition device in
152 accordance with s. 316.1938 on all vehicles that are
153 individually or jointly leased or owned and routinely operated
154 by the defendant for at least 6 continuous months.
155
156 The impoundment or immobilization or the installation of an
157 ignition interlock device under this paragraph must not occur
158 concurrently with the incarceration of the defendant and must
159 occur concurrently with the driver driver’s license revocation
160 imposed under s. 322.28(2)(a)2. The impoundment or
161 immobilization order may be dismissed in accordance with
162 paragraph (e), paragraph (f), paragraph (g), or paragraph (h).
163 At least 48 hours of confinement must be consecutive.
164 (c) For the third or subsequent conviction for an offense
165 that occurs within a period of 10 years after the date of a
166 prior conviction for violation of this section, the court shall
167 order imprisonment for at least not less than 30 days. The court
168 must also, as a condition of probation, order:
169 1. The impoundment or immobilization of all vehicles owned
170 by the defendant at the time of impoundment or immobilization,
171 for a period of 90 days or for the unexpired term of any lease
172 or rental agreement that expires within 90 days; or
173 2. The installation of an interlock ignition device in
174 accordance with s. 316.1938 upon all vehicles that are
175 individually or jointly leased or owned and routinely operated
176 by the defendant for at least 12 continuous months.
177
178 The impoundment or immobilization or the installation of an
179 ignition interlock device under this paragraph must not occur
180 concurrently with the incarceration of the defendant and must
181 occur concurrently with the driver driver’s license revocation
182 imposed under s. 322.28(2)(a)3. The impoundment or
183 immobilization order may be dismissed in accordance with
184 paragraph (e), paragraph (f), paragraph (g), or paragraph (h).
185 At least 48 hours of confinement must be consecutive.
186 (d) The court must, at the time of sentencing the
187 defendant, issue an order for:
188 1. The impoundment or immobilization of a vehicle; or
189 2. The installation of an ignition interlock device.
190
191 The order of impoundment or immobilization must include the name
192 and telephone numbers of all immobilization agencies meeting all
193 of the conditions of subsection (13). Within 7 business days
194 after the date that the court issues the order of impoundment or
195 immobilization, the clerk of the court must send notice by
196 certified mail, return receipt requested, to the registered
197 owner of each vehicle, if the registered owner is a person other
198 than the defendant, and to each person of record claiming a lien
199 against the vehicle.
200 (e) A person who owns but was not operating the vehicle
201 when the offense occurred may submit to the court a police
202 report indicating that the vehicle was stolen at the time of the
203 offense or documentation of having purchased the vehicle after
204 the offense was committed from an entity other than the
205 defendant or the defendant’s agent. If the court finds that the
206 vehicle was stolen or that the sale was not made to circumvent
207 the order and to allow the defendant continued access to the
208 vehicle, the order must be dismissed, and the owner of the
209 vehicle will incur no costs. If the court denies the request to
210 dismiss the order of impoundment or immobilization, the
211 petitioner may request an evidentiary hearing.
212 (f) A person who owns but was not operating the vehicle
213 when the offense occurred, and whose vehicle was stolen or who
214 purchased the vehicle after the offense was committed directly
215 from the defendant or the defendant’s agent, may request an
216 evidentiary hearing to determine whether the impoundment or
217 immobilization should occur. If the court finds that either the
218 vehicle was stolen or the purchase was made without knowledge of
219 the offense, that the purchaser had no relationship to the
220 defendant other than through the transaction, and that the such
221 purchase would not circumvent the order and allow the defendant
222 continued access to the vehicle, the order must be dismissed,
223 and the owner of the vehicle will incur no costs.
224 (g) The court shall also dismiss the order of impoundment
225 or immobilization of the vehicle if the court finds that the
226 family of the owner of the vehicle has no other private or
227 public means of transportation.
228 (h) The court may also dismiss the order of impoundment or
229 immobilization of any vehicle vehicles that is are owned by the
230 defendant but that is are operated solely by the employees of
231 the defendant or any business owned by the defendant.
232 (i) All costs and fees for the impoundment or
233 immobilization, including the cost of notification, must be paid
234 by the owner of the vehicle or, if the vehicle is leased or
235 rented, by the person leasing or renting the vehicle, unless the
236 impoundment or immobilization order is dismissed. All provisions
237 of s. 713.78 shall apply. The costs and fees for the impoundment
238 or immobilization must be paid directly to the person impounding
239 or immobilizing the vehicle.
240 (j) The person who owns a vehicle that is impounded or
241 immobilized under this subsection paragraph, or a person who has
242 a lien of record against such a vehicle and who has not
243 requested a review of the impoundment pursuant to paragraph (e),
244 paragraph (f), or paragraph (g), may, within 10 days after the
245 date that person has knowledge of the location of the vehicle,
246 file a complaint in the county in which the owner resides to
247 determine whether the vehicle was wrongfully taken or withheld
248 from the owner or lienholder. Upon the filing of a complaint,
249 the owner or lienholder may have the vehicle released by posting
250 with the court a bond or other adequate security equal to the
251 amount of the costs and fees for impoundment or immobilization,
252 including towing or storage, to ensure the payment of such costs
253 and fees if the owner or lienholder does not prevail. When the
254 bond is posted and the fee is paid as set forth in s. 28.24, the
255 clerk of the court shall issue a certificate releasing the
256 vehicle. At the time of release, after reasonable inspection,
257 the owner or lienholder must give a receipt to the towing or
258 storage company indicating any loss or damage to the vehicle or
259 to the contents of the vehicle.
260 (k) A defendant, in the court’s discretion, may be required
261 to serve all or any portion of a term of imprisonment to which
262 the defendant has been sentenced pursuant to this section in a
263 residential alcoholism treatment program or a residential drug
264 abuse treatment program. Any time spent in such a program must
265 be credited by the court toward the term of imprisonment.
266
267 For the purposes of this section, a any conviction for a
268 violation of s. 327.35; a previous conviction for the violation
269 of former s. 316.1931, former s. 860.01, or former s. 316.028;
270 or a previous conviction outside this state for driving under
271 the influence, driving while intoxicated, driving with an
272 unlawful blood-alcohol level, driving with an unlawful breath
273 alcohol level, or any other similar alcohol-related or drug
274 related traffic offense, is also considered a previous
275 conviction for violation of this section. However, in
276 satisfaction of the fine imposed pursuant to this section, the
277 court may, upon a finding that the defendant is financially
278 unable to pay either all or part of the fine, order that the
279 defendant participate for a specified additional period of time
280 in public service or a community work project in lieu of payment
281 of that portion of the fine which the court determines the
282 defendant is unable to pay. In determining such additional
283 sentence, the court shall consider the amount of the unpaid
284 portion of the fine and the reasonable value of the services to
285 be ordered; however, the court may not compute the reasonable
286 value of services at a rate less than the federal minimum wage
287 at the time of sentencing.
288 Section 2. Section 322.2615, Florida Statutes, is amended
289 to read:
290 322.2615 Restriction or suspension of license; right to
291 review.—
292 (1)(a) Notwithstanding whether an arrest is made for any
293 criminal offense, a law enforcement officer or correctional
294 officer shall, on behalf of the department, suspend the driving
295 privilege of a person who is driving or is in actual physical
296 control of a motor vehicle and who has an unlawful blood-alcohol
297 level or breath-alcohol level of 0.08 or higher, or of a person
298 who has refused to submit to a urine test or a test of his or
299 her breath-alcohol or blood-alcohol level. The officer shall
300 issue to the person the notice of suspension and notice to
301 appear. The person shall appear at a designated department
302 office within 10 days after receipt of the notice. The notice of
303 suspension and notice to appear serve as take the person’s
304 driver’s license and issue the person a 10-day temporary driving
305 permit if the person is otherwise eligible for the driving
306 privilege and shall issue the person a notice of suspension. If
307 a blood test has been administered, the officer or the agency
308 employing the officer shall transmit the such results to the
309 department within 5 days after receipt of the results. If the
310 department then determines that the person had a blood-alcohol
311 level or breath-alcohol level of 0.08 or higher, the department
312 shall suspend the person’s driver driver’s license pursuant to
313 subsection (3).
314 (b) The suspension under paragraph (a) shall be pursuant
315 to, and the notice of suspension and notice to appear shall
316 inform the driver of, the following:
317 1.a. The driver refused to submit to a lawful breath,
318 blood, or urine test and his or her driving privilege is
319 suspended for a period of 1 year for a first refusal, or for a
320 period of 18 months if his or her driving privilege has been
321 previously suspended as a result of a refusal to submit to such
322 a test; or
323 b. The driver was driving or was in actual physical control
324 of a motor vehicle and had a an unlawful blood-alcohol level or
325 breath-alcohol level of 0.08 or higher and his or her driving
326 privilege is suspended for a period of 6 months for a first
327 offense, or for a period of 1 year if his or her driving
328 privilege has been previously suspended under this section.
329 2. The suspension period commences shall commence on the
330 date of issuance of the notice of suspension and notice to
331 appear.
332 3. The driver may request a formal or informal review of
333 the suspension by the department within 10 days after the date
334 of issuance of the notice of suspension.
335 3.4. The temporary permit issued at the time of suspension
336 expires at midnight of the 10th day following the date of
337 issuance of the notice of suspension and notice to appear.
338 5. The driver may submit to the department any materials
339 relevant to the suspension.
340 (c) A person whose driving privilege has been suspended
341 pursuant to this subsection or subsection (3) shall appear at a
342 designated department office within 10 days after receipt of the
343 notice of suspension and notice to appear. If the person fails
344 to appear as required, his or her license will remain suspended
345 and all rights of review as provided in this section will be
346 waived.
347 (d) If it appears that the person whose driving privilege
348 has been suspended meets the requirements of s. 322.271 and is
349 otherwise eligible for the driving privilege and if the person
350 wishes to obtain a restricted driver license, the department
351 shall, upon payment by the person of the appropriate fees to the
352 department, reinstate the person’s driving privilege restricted
353 to business purposes only, as defined in, and pursuant to s.
354 322.271. The department shall issue a replacement driver license
355 with the applicable restrictions. The department may extend the
356 time for a person who qualifies for a restricted driver license
357 to apply for the restricted license upon good cause shown in
358 writing.
359 1. The restrictions on a person’s driving privilege under
360 this paragraph shall be in place for:
361 a. One year, if the driver refused to submit to a breath,
362 blood, or urine test requested pursuant to this section; or
363 b. Six months, if the driver was driving or was in actual
364 physical control of a motor vehicle and had an unlawful blood
365 alcohol or breath-alcohol level of 0.08 or higher.
366 2. A person who accepts the reinstated driving privilege
367 restricted to business purposes only as provided in this
368 paragraph is deemed to have waived the right to a formal review
369 of the suspension of his or her driving privilege. Such a waiver
370 may not be used as evidence in any other proceeding.
371 (e) The department shall notify the person whose driving
372 privilege has been suspended in writing of his or her right to
373 review the suspension if the person has not applied for a
374 restricted driver license pursuant to s. 322.271.
375 (f) The notice of the right to a formal or informal review
376 of a suspension shall inform the driver of the following:
377 1. The driver may request a formal or informal review by
378 the department within 10 days after the department notifies the
379 person of the right to review. A person electing to seek a
380 formal review of the suspension is deemed to have waived his or
381 her right to a restricted driving privilege except as set forth
382 in subsection (10). Hearings may be conducted telephonically.
383 Witnesses shall be sworn by a notary public, certified court
384 reporter, or law enforcement officer pursuant to s. 117.10.
385 2. The driver may submit to the department any material
386 relevant to the suspension. The driver or his or her counsel
387 must provide a telephone number where he or she can be contacted
388 for the hearing. A person who does not appear at a designated
389 department office as required by paragraph (c) waives his or her
390 right to submit materials to the department.
391 (2) Except as provided in paragraph (1)(a), the law
392 enforcement officer shall forward to the department, within 5
393 days after issuing the notice of suspension and notice to
394 appear, the driver driver’s license; an affidavit stating the
395 officer’s grounds for belief that the person was driving or was
396 in actual physical control of a motor vehicle while under the
397 influence of alcoholic beverages or chemical or controlled
398 substances; the results of any breath or blood test or an
399 affidavit stating that a breath, blood, or urine test was
400 requested by the a law enforcement officer or a correctional
401 officer pursuant to this section and that the person refused to
402 submit; the officer’s description of the person’s field sobriety
403 exercise test, if any; and a copy of the notice of suspension
404 and notice appear. The failure of the officer to submit
405 materials within the 5-day period specified in this subsection
406 and in subsection (1) does not affect the department’s ability
407 to consider any evidence submitted at or before prior to the
408 hearing. The officer may also submit a copy of the crash report
409 and a copy of a videotape of the field sobriety exercise test or
410 the attempt to administer the exercise such test. Materials
411 submitted to the department by a law enforcement agency or
412 correctional agency shall be considered self-authenticating and
413 shall be in the record for consideration by the hearing officer.
414 All materials may be submitted in electronic form.
415 Notwithstanding s. 316.066(5), the crash report shall be
416 considered by the hearing officer.
417 (3) If the department determines that the license should be
418 suspended pursuant to this section and if the notice of
419 suspension and notice to appear has not already been served upon
420 the person by the a law enforcement officer or correctional
421 officer as provided in subsection (1), the department shall
422 issue a notice of suspension and, unless the notice is mailed
423 pursuant to s. 322.251, a temporary permit that expires 10 days
424 after the date of issuance if the driver is otherwise eligible
425 for the driving privilege.
426 (4) If the person whose license was suspended requests an
427 informal review pursuant to subparagraph (1)(b)3., the
428 department shall conduct the informal review by a hearing
429 officer employed by the department. The Such informal review
430 hearing shall consist solely of an examination by the hearing
431 officer department of the materials submitted by the a law
432 enforcement officer or correctional officer and by the person
433 whose license was suspended, and the testimonial presence of the
434 an officer or any other witness is not required.
435 (5) After completion of the informal review, notice of the
436 department’s decision sustaining, amending, or invalidating the
437 suspension of the driver driver’s license of the person whose
438 license was suspended must be provided to such person. The Such
439 notice must be mailed to the person at the last known address
440 shown on the department’s records, or to the address provided in
441 the law enforcement officer’s report if the such address differs
442 from the address of record, within 21 days after the expiration
443 of the temporary permit issued pursuant to subsection (1) or
444 subsection (3).
445 (6)(a) If the person whose license was suspended requests a
446 formal review, the department must schedule a hearing to be held
447 within 30 days after the such request is received by the
448 department and must notify the person of the date, time, and
449 place of the hearing.
450 (b) The Such formal review hearing shall be held before a
451 hearing officer employed by the department, and the hearing
452 officer may shall be authorized to administer oaths, examine
453 witnesses and take testimony, receive relevant evidence, issue
454 subpoenas for the officers and witnesses identified in documents
455 in subsection (2), regulate the course and conduct of the
456 hearing, question witnesses, and make a ruling on the
457 suspension.
458 (c) The party requesting the presence of a witness is shall
459 be responsible for the payment of any witness fees and for
460 notifying in writing the state attorney’s office in the
461 appropriate circuit of the issuance of the subpoena. If the
462 person who requests the a formal review hearing fails to appear
463 and the hearing officer finds such failure to be without just
464 cause, the right to a formal hearing is waived, and the
465 suspension shall be sustained. The hearing officer may authorize
466 witnesses to the formal review hearing to appear telephonically.
467 (d)(c) A party may seek enforcement of a subpoena under
468 paragraph (b) by filing a petition for enforcement in the
469 circuit court of the judicial circuit in which the person
470 failing to comply with the subpoena resides or by filing a
471 motion for enforcement in any criminal court case resulting from
472 the driving or actual physical control of the motor vehicle
473 which gave rise to the suspension under this section. A failure
474 to comply with an order of the court shall result in a finding
475 of contempt of court. However, a person is not in contempt while
476 a subpoena is being challenged. The department may not be a
477 party to any subpoena enforcement action.
478 (e)(d) The department must, within 7 working days after the
479 a formal review hearing, provide send notice to the person of
480 the hearing officer’s decision as to whether sufficient cause
481 exists to sustain, amend, or invalidate the suspension.
482 (7) In a formal review hearing under subsection (6) or an
483 informal review hearing under subsection (4), the hearing
484 officer shall determine by a preponderance of the evidence
485 whether sufficient cause exists to sustain, amend, or invalidate
486 the suspension. Notwithstanding s. 316.1932, the hearing officer
487 may not consider the lawfulness of the arrest and shall limit
488 the scope of the review shall be limited to the following
489 issues:
490 (a) If the license was suspended for driving with a an
491 unlawful blood-alcohol level or breath-alcohol level of 0.08 or
492 higher:
493 1. Whether the law enforcement officer had probable cause
494 to believe that the person whose license was suspended was
495 driving or was in actual physical control of a motor vehicle in
496 this state while under the influence of alcoholic beverages or
497 chemical or controlled substances.
498 2. Whether the person whose license was suspended had a an
499 unlawful blood-alcohol level or breath-alcohol level of 0.08 or
500 higher as provided in s. 316.193.
501 (b) If the license was suspended for refusal to submit to a
502 breath, blood, or urine test:
503 1. Whether the law enforcement officer had probable cause
504 to believe that the person whose license was suspended was
505 driving or was in actual physical control of a motor vehicle in
506 this state while under the influence of alcoholic beverages or
507 chemical or controlled substances.
508 2. Whether the person whose license was suspended refused
509 to submit to any such test after being requested to do so by a
510 law enforcement officer or correctional officer.
511 3. Whether the person whose license was suspended was told
512 that if he or she refused to submit to such test, his or her
513 privilege to operate a motor vehicle would be suspended for a
514 period of 1 year or, in the case of a second or subsequent
515 refusal, for a period of 18 months.
516 (8) Based on the determination of the hearing officer
517 pursuant to subsection (7) for both informal hearings under
518 subsection (4) and formal hearings under subsection (6), the
519 department shall:
520 (a) Sustain the suspension of the person’s driving
521 privilege for a period of 1 year for a first refusal, or for a
522 period of 18 months if the driving privilege of the such person
523 has been previously suspended as a result of a refusal to submit
524 to such test tests, if the person refused to submit to a lawful
525 breath, blood, or urine test requested pursuant to this section.
526 The suspension period begins commences on the date of issuance
527 of the notice of suspension.
528 (b) Sustain the suspension of the person’s driving
529 privilege for a period of 6 months for a blood-alcohol level or
530 breath-alcohol level of 0.08 or higher, or for a period of 1
531 year if the driving privilege of the such person has been
532 previously suspended under this section as a result of driving
533 with a blood-alcohol level or breath-alcohol level of 0.08 or
534 higher an unlawful alcohol level. The suspension period begins
535 commences on the date of issuance of the notice of suspension.
536 (9) A request for a formal review hearing or an informal
537 review hearing does shall not stay the suspension of the
538 person’s driver driver’s license. If the department fails to
539 schedule a requested the formal review hearing to be held within
540 30 days after receipt of the request therefor, the department
541 shall invalidate the suspension. If the scheduled hearing is
542 continued at the department’s initiative, the department shall
543 issue a temporary driving permit that is shall be valid until
544 the hearing is conducted if the person is otherwise eligible for
545 the driving privilege. The Such permit may not be issued to a
546 person who sought and obtained a continuance of the hearing. The
547 temporary permit issued under this subsection grants a driving
548 privilege restricted to employment purposes shall authorize
549 driving for business or employment use only, as defined in s.
550 322.271.
551 (10) A person whose driver driver’s license is suspended
552 under subsection (1) or subsection (3) may apply for issuance of
553 a license for business or employment purposes only if the person
554 is otherwise eligible for the driving privilege pursuant to s.
555 322.271.
556 (a) If the suspension of the driver driver’s license of the
557 person for refusal or failure to submit to a breath, urine, or
558 blood test is sustained, the person is not eligible to receive a
559 license for business or employment purposes only, pursuant to s.
560 322.271, until 90 days have elapsed after the expiration of the
561 last temporary permit issued. If the driver is not issued a 10
562 day permit pursuant to this section or s. 322.64 because he or
563 she is ineligible for the permit and the suspension for failure
564 to submit to a breath, urine, or blood test is sustained not
565 invalidated by the department, the driver is not eligible to
566 receive a business or employment license pursuant to s. 322.271
567 until 90 days have elapsed from the date of the suspension.
568 (b) If the suspension of the driver driver’s license of the
569 person relating to unlawful blood-alcohol level or breath
570 alcohol level of 0.08 or higher is sustained, the person is not
571 eligible to receive a license for business or employment
572 purposes only pursuant to s. 322.271 until 30 days have elapsed
573 after the expiration of the last temporary permit issued. If the
574 driver is not issued a 10-day permit pursuant to this section or
575 s. 322.64 because he or she is ineligible for the permit and the
576 suspension relating to unlawful blood-alcohol level or breath
577 alcohol level of 0.08 or higher is sustained not invalidated by
578 the department, the driver is not eligible to receive a business
579 or employment license pursuant to s. 322.271 until 30 days have
580 elapsed from the date of the suspension.
581 (11) A The formal review hearing may be conducted upon a
582 review of the reports of a law enforcement officer or a
583 correctional officer, including documents relating to the
584 administration of a breath test or blood test or the refusal to
585 take either test or the refusal to take a urine test. However,
586 as provided in subsection (6), the driver may subpoena the
587 officer or any person who administered or analyzed the a breath
588 or blood test. The hearing officer may permit witnesses at the
589 formal review hearing to appear telephonically.
590 (12) The Formal and informal review hearings hearing and
591 the informal review hearing are exempt from the provisions of
592 chapter 120. The department may adopt rules for the conduct of
593 reviews under this section.
594 (13) Pursuant to s. 322.21, a person may appeal any
595 decision of the department sustaining a suspension of his or her
596 driver driver’s license by a petition for writ of certiorari to
597 the circuit court in the county in which the wherein such person
598 resides or wherein a formal or informal review was conducted
599 pursuant to s. 322.31. However, an appeal does shall not stay
600 the suspension. A law enforcement agency may appeal any decision
601 of the department invalidating a suspension by a petition for
602 writ of certiorari to the circuit court in the county in which
603 wherein a formal or informal review was conducted. For
604 telephonic hearings, the law enforcement agency shall file the
605 petition for writ of certiorari to the circuit court in the
606 county in which the law enforcement agency is located. This
607 subsection does shall not be construed to provide for a de novo
608 appeal.
609 (14)(a) The decision of the department under this section
610 or any circuit court review thereof may not be considered in any
611 trial for a violation of s. 316.193, and a written statement
612 submitted by a person in his or her request for departmental
613 review under this section may not be admitted into evidence
614 against him or her in any such trial.
615 (b) The disposition of any related criminal proceeding
616 proceedings does not affect a suspension for refusal to submit
617 to a blood, breath, or urine test imposed under this section.
618 (15) If the department suspends a person’s license under s.
619 322.2616, it may not also suspend the person’s license under
620 this section for the same episode that was the basis for the
621 suspension under s. 322.2616.
622 (16) The department shall invalidate a suspension for
623 driving with an unlawful blood-alcohol level or breath-alcohol
624 level imposed under this section if the suspended person is
625 found not guilty at trial of an underlying violation of s.
626 316.193. If the person obtained a license restricted to business
627 purposes only pursuant to paragraph (1)(c), the department shall
628 remove the restriction from the person’s driver license.
629 Section 3. Subsections (5), (7), (12), and (14) of section
630 322.2616, Florida Statutes, are amended to read:
631 322.2616 Suspension of license; persons under 21 years of
632 age; right to review.—
633 (5) If the person whose license is suspended requests an
634 informal review under subparagraph (2)(b)3., the department
635 shall conduct the informal review by a hearing officer employed
636 by the department within 30 days after the request is received
637 by the department and shall issue such person a temporary
638 driving permit for business purposes only to expire on the date
639 that the such review is scheduled to be conducted if the person
640 is otherwise eligible. The informal review hearing must consist
641 solely of an examination by the department of the materials
642 submitted by the a law enforcement officer or correctional
643 officer and by the person whose license is suspended, and the
644 testimony presence of the an officer or witness is not required.
645 (7)(a) If the person whose license is suspended requests a
646 formal review, the department must schedule a hearing to be held
647 within 30 days after the request is received by the department
648 and must notify the person of the date, time, and place of the
649 hearing and shall issue the such person a temporary driving
650 permit for business purposes only to expire on the date that the
651 such review is scheduled to be conducted if the person is
652 otherwise eligible.
653 (b) The formal review hearing must be held before a hearing
654 officer employed by the department, and the hearing officer may
655 administer oaths, examine witnesses and take testimony, receive
656 relevant evidence, issue subpoenas, regulate the course and
657 conduct of the hearing, and make a ruling on the suspension. The
658 department and the person whose license was suspended may
659 subpoena witnesses, and the party requesting the presence of a
660 witness is responsible for paying any witness fees and for
661 notifying in writing the state attorney’s office in the
662 appropriate circuit of the issuance of the subpoena. If the
663 person who requests a formal review hearing fails to appear and
664 the hearing officer finds the failure to be without just cause,
665 the right to a formal hearing is waived, and the suspension is
666 sustained. The hearing officer may permit witnesses at the
667 formal review hearing to appear telephonically.
668 (c) A party may seek enforcement of a subpoena under
669 paragraph (b) by filing a petition for enforcement in the
670 circuit court of the judicial circuit in which the person
671 failing to comply with the subpoena resides. A failure to comply
672 with an order of the court constitutes contempt of court.
673 However, a person may not be held in contempt while a subpoena
674 is being challenged. The department is not a party to any
675 subpoena enforcement action.
676 (d) The department must, within 7 days after the a formal
677 review hearing, provide send notice to the person of the hearing
678 officer’s decision as to whether sufficient cause exists to
679 sustain, amend, or invalidate the suspension.
680 (12) The formal review hearing may be conducted upon a
681 review of the reports of the a law enforcement officer or
682 correctional officer, including documents relating to the
683 administration of a breath test or the refusal to take a test.
684 However, as provided in subsection (7), the driver may subpoena
685 the officer or any person who administered the a breath or blood
686 test. The hearing officer may permit witnesses at the formal
687 review hearing to appear telephonically.
688 (14) Pursuant to s. 322.31, a person may appeal any
689 decision of the department sustaining a suspension of his or her
690 driver driver’s license by a petition for writ of certiorari to
691 the circuit court in the county in which the wherein such person
692 resides or in which the wherein a formal or informal review was
693 conducted under s. 322.31. However, an appeal does not stay the
694 suspension. This subsection does not provide for a de novo
695 appeal.
696 Section 4. Subsections (6) and (7) are added to section
697 322.2715, Florida Statutes, to read:
698 322.2715 Ignition interlock device.—
699 (6) Notwithstanding the provisions of s. 322.271 and
700 322.28(2), upon a second conviction for a violation of the
701 provisions of s. 316.193, the convicted person may elect to
702 install an ignition interlock device on all vehicles that are
703 individually or jointly leased or owned and routinely operated
704 by the convicted person, in lieu of the 5-year license
705 revocation required by s. 322.28(2). The ignition interlock
706 device must be installed for a period of 2 consecutive years,
707 and must be followed by a third consecutive year, during which
708 the convicted person is entitled to a driving privilege
709 restricted to business purposes only, as defined in s.
710 322.271(1).
711 (7) Notwithstanding the provisions of s. 322.271 and
712 322.28(2), upon a third conviction for a violation of the
713 provisions of s. 316.193, the convicted person may elect to
714 install an ignition interlock device on all vehicles that are
715 individually or jointly leased or owned and routinely operated
716 by the convicted person, in lieu of the 10-year license
717 revocation required by s. 322.28(2). The installation of an
718 ignition interlock device under this subsection may not occur
719 until the convicted person has served a 1-year license
720 revocation period. The ignition interlock device must be
721 installed for a period of 3 consecutive years, and must be
722 followed by a period of 2 additional consecutive years, during
723 which the convicted person is entitled to a driving privilege
724 restricted to business purposes only, as defined in s.
725 322.271(1).
726 Section 5. Section 322.64, Florida Statutes, is amended to
727 read:
728 322.64 Holder of commercial driver driver’s license;
729 persons operating a commercial motor vehicle; driving with
730 unlawful blood-alcohol level or breath-alcohol level; refusal to
731 submit to breath, urine, or blood test.—
732 (1)(a) A law enforcement officer or correctional officer
733 shall, on behalf of the department, disqualify from operating a
734 any commercial motor vehicle a person who, while operating or in
735 actual physical control of a commercial motor vehicle, is
736 arrested for a violation of s. 316.193, relating to unlawful
737 blood-alcohol level or breath-alcohol level, or a person who has
738 refused to submit to a breath, urine, or blood test authorized
739 by s. 322.63 or s. 316.1932 arising out of the operation or
740 actual physical control of a commercial motor vehicle. A law
741 enforcement officer or correctional officer shall, on behalf of
742 the department, disqualify the holder of a commercial driver
743 driver’s license from operating a any commercial motor vehicle
744 if the licenseholder, while operating or in actual physical
745 control of a motor vehicle, is arrested for a violation of s.
746 316.193, relating to unlawful blood-alcohol level or breath
747 alcohol level, or refused to submit to a breath, urine, or blood
748 test authorized by s. 322.63 or s. 316.1932. Upon
749 disqualification of the person, the officer shall take the
750 person’s driver driver’s license and issue the person a 10-day
751 temporary permit for the operation of noncommercial vehicles
752 only if the person is otherwise eligible for the driving
753 privilege and shall issue the person a notice of
754 disqualification. If the person has been given a blood, breath,
755 or urine test and, the results of the test which are not
756 available to the officer at the time of the arrest, the agency
757 employing the officer shall transmit such results to the
758 department within 5 days after receipt of the results. If the
759 department then determines that the person had a blood-alcohol
760 level or breath-alcohol level of 0.08 or higher, the department
761 shall disqualify the person from operating a commercial motor
762 vehicle pursuant to subsection (3).
763 (b) For purposes of determining the period of
764 disqualification described in 49 C.F.R. s. 383.51, the
765 disqualification under paragraph (a) shall be treated as
766 conviction.
767 (c)(b) The disqualification under paragraph (a) shall be
768 pursuant to, and the notice of disqualification shall inform the
769 driver of, the following:
770 1.a. The driver refused to submit to a lawful breath,
771 blood, or urine test and he or she is disqualified from
772 operating a commercial motor vehicle for a period of 1 year, for
773 a first refusal, or permanently, if he or she has previously
774 been disqualified under this section; or
775 b. The driver was driving or was in actual physical control
776 of a commercial motor vehicle, or any motor vehicle if the
777 driver holds a commercial driver driver’s license, had an
778 unlawful blood-alcohol level or breath-alcohol level of 0.08 or
779 higher, and his or her driving privilege shall be disqualified
780 for a period of 1 year for a first offense, or permanently
781 disqualified if his or her driving privilege has been previously
782 disqualified under this section.
783 2. The disqualification period for operating a commercial
784 vehicle begins vehicles shall commence on the date of issuance
785 of the notice of disqualification.
786 3. The driver may request a formal or informal review of
787 the disqualification by the department within 10 days after the
788 date of issuance of the notice of disqualification.
789 4. The temporary permit issued at the time of
790 disqualification expires at midnight of the 10th day following
791 the date of disqualification.
792 5. The driver may submit to the department any material
793 materials relevant to the disqualification.
794 (2) Except as provided in paragraph (1)(a), the law
795 enforcement officer shall forward to the department, within 5
796 days after the date of the issuance of the notice of
797 disqualification, a copy of the notice of disqualification
798 issued to the person;, the driver driver’s license of the person
799 disqualified;, and an affidavit stating the officer’s grounds
800 for belief that the person disqualified was operating or was in
801 actual physical control of a commercial motor vehicle, or holds
802 a commercial driver driver’s license, and had an unlawful blood
803 alcohol or breath-alcohol level; the results of any breath, or
804 blood, or urine test or an affidavit stating that a breath,
805 blood, or urine test was requested by the a law enforcement
806 officer or correctional officer and that the person arrested
807 refused to submit; a copy of the notice of disqualification
808 issued to the person; and the officer’s description of the
809 person’s field sobriety test, if any. The failure of the officer
810 to submit materials within the 5-day period specified in this
811 subsection or subsection (1) does not affect the department’s
812 ability to consider any evidence submitted at or before prior to
813 the hearing. The officer may also submit a copy of a videotape
814 of the field sobriety test or the attempt to administer such
815 test and a copy of the crash report, if any. Notwithstanding s.
816 316.066, the crash report shall be considered by the hearing
817 officer. All materials may be submitted in electronic form.
818 (3) If the department determines that the person arrested
819 should be disqualified from operating a commercial motor vehicle
820 pursuant to this section and if the notice of disqualification
821 has not already been served upon the person by the a law
822 enforcement officer or correctional officer as provided in
823 subsection (1), the department shall issue a notice of
824 disqualification and, unless the notice is mailed pursuant to s.
825 322.251, a temporary permit that which expires 10 days after the
826 date of issuance if the driver is otherwise eligible.
827 (4) If the person disqualified requests an informal review
828 pursuant to subparagraph (1)(c)3. (1)(b)3., the department shall
829 conduct the informal review by a hearing officer employed by the
830 department. The Such informal review hearing shall consist
831 solely of an examination by the department of the materials
832 submitted by the a law enforcement officer or correctional
833 officer and by the person disqualified, and the presence of the
834 an officer or a witness is not required.
835 (5) After completion of the informal review, notice of the
836 department’s decision sustaining, amending, or invalidating the
837 disqualification must be provided to the person. The such notice
838 must be mailed to the person at the last known address shown on
839 the department’s records, and to the address provided in the law
840 enforcement officer’s report if the such address differs from
841 the address of record, within 21 days after the expiration of
842 the temporary permit issued pursuant to subsection (1) or
843 subsection (3).
844 (6)(a) If the person disqualified requests a formal review,
845 the department must schedule a hearing to be held within 30 days
846 after the such request is received by the department and must
847 notify the person of the date, time, and place of the hearing.
848 (b) The such formal review hearing shall be held before a
849 hearing officer employed by the department, and the hearing
850 officer may shall be authorized to administer oaths, examine
851 witnesses and take testimony, receive relevant evidence, issue
852 subpoenas for the officers and witnesses identified in documents
853 as provided in subsection (2), regulate the course and conduct
854 of the hearing, and make a ruling on the disqualification. The
855 department and the person disqualified may subpoena witnesses,
856 and the party requesting the presence of a witness is shall be
857 responsible for the payment of any witness fees. If the person
858 who requests a formal review hearing fails to appear and the
859 hearing officer finds such failure to be without just cause, the
860 right to a formal hearing is waived. The hearing officer may
861 permit witnesses at the formal review hearing to appear
862 telephonically.
863 (c) A party may seek enforcement of a subpoena under
864 paragraph (b) by filing a petition for enforcement in the
865 circuit court of the judicial circuit in which the person
866 failing to comply with the subpoena resides or by filing a
867 motion for enforcement in any criminal court case resulting from
868 the driving or actual physical control of the motor vehicle that
869 gave rise to the disqualification under this section. A failure
870 to comply with an order of the court shall result in a finding
871 of contempt of court. However, a person is shall not be in
872 contempt while a subpoena is being challenged. The department is
873 not a party to any subpoena enforcement action.
874 (d) The department must, within 7 working days after the a
875 formal review hearing, send notice to the person of the hearing
876 officer’s decision as to whether sufficient cause exists to
877 sustain, amend, or invalidate the disqualification.
878 (7) In a formal review hearing under subsection (6) or an
879 informal review hearing under subsection (4), the hearing
880 officer shall determine by a preponderance of the evidence
881 whether sufficient cause exists to sustain, amend, or invalidate
882 the disqualification. Notwithstanding s. 316.1932, the hearing
883 officer may not consider the lawfulness of the arrest and shall
884 limit the scope of the review shall be limited to the following
885 issues:
886 (a) If the person was disqualified from operating a
887 commercial motor vehicle for driving with a an unlawful blood
888 alcohol level or breath-alcohol level of 0.08 or higher:
889 1. Whether the arresting law enforcement officer had
890 probable cause to believe that the person was driving or was in
891 actual physical control of a commercial motor vehicle, or any
892 motor vehicle if the driver holds a commercial driver driver’s
893 license, in this state while he or she had any alcohol, chemical
894 substance substances, or controlled substance substances in his
895 or her body.
896 2. Whether the person had a an unlawful blood-alcohol level
897 or breath-alcohol level of 0.08 or higher.
898 (b) If the person was disqualified from operating a
899 commercial motor vehicle for refusal to submit to a breath,
900 blood, or urine test:
901 1. Whether the law enforcement officer had probable cause
902 to believe that the person was driving or was in actual physical
903 control of a commercial motor vehicle, or any motor vehicle if
904 the driver holds a commercial driver driver’s license, in this
905 state while he or she had any alcohol, chemical substance
906 substances, or controlled substance substances in his or her
907 body.
908 2. Whether the person refused to submit to the test after
909 being requested to do so by the a law enforcement officer or
910 correctional officer.
911 3. Whether the person was told that if he or she refused to
912 submit to such test, he or she would be disqualified from
913 operating a commercial motor vehicle for a period of 1 year or,
914 if previously disqualified under this section, permanently.
915 (8) Based on the determination of the hearing officer
916 pursuant to subsection (7) for both informal hearings under
917 subsection (4) and formal hearings under subsection (6), the
918 department shall:
919 (a) Sustain the disqualification for a period of 1 year for
920 a first refusal, or permanently if the such person has been
921 previously disqualified from operating a commercial motor
922 vehicle under this section. The disqualification period begins
923 commences on the date of the issuance of the notice of
924 disqualification.
925 (b) Sustain the disqualification:
926 1. For a period of 1 year if the person was driving or was
927 in actual physical control of a commercial motor vehicle, or any
928 motor vehicle if the driver holds a commercial driver driver’s
929 license, and had an unlawful blood-alcohol level or breath
930 alcohol level of 0.08 or higher; or
931 2. Permanently if the person has been previously
932 disqualified from operating a commercial motor vehicle under
933 this section or his or her driving privilege has been previously
934 suspended for driving or being in actual physical control of a
935 commercial motor vehicle, or any motor vehicle if the driver
936 holds a commercial driver driver’s license, and had an unlawful
937 blood-alcohol level or breath-alcohol level of 0.08 or higher.
938
939 The disqualification period begins commences on the date of the
940 issuance of the notice of disqualification.
941 (9) A request for a formal review hearing or an informal
942 review hearing does shall not stay the disqualification. If the
943 department fails to schedule the formal review hearing to be
944 held within 30 days after receipt of the request therefor, the
945 department shall invalidate the disqualification. If the
946 scheduled hearing is continued at the department’s initiative,
947 the department shall issue a temporary driving permit limited to
948 noncommercial vehicles which is valid until the hearing is
949 conducted if the person is otherwise eligible for the driving
950 privilege. The Such permit may shall not be issued to a person
951 who sought and obtained a continuance of the hearing. The
952 temporary permit issued under this subsection grants a driving
953 privilege restricted to employment purposes only, as defined in
954 s. 322.271 shall authorize driving for business purposes only.
955 (10) A person who is disqualified from operating a
956 commercial motor vehicle under subsection (1) or subsection (3)
957 is eligible for issuance of a license for business or employment
958 purposes only under s. 322.271 if the person is otherwise
959 eligible for the driving privilege. However, such business or
960 employment purposes license does shall not authorize the driver
961 to operate a commercial motor vehicle.
962 (11) The formal review hearing may be conducted upon a
963 review of the reports of the a law enforcement officer or a
964 correctional officer, including documents relating to the
965 administration of a breath test or blood test or the refusal to
966 take a breath, blood, or urine either test. However, as provided
967 in subsection (6), the driver may subpoena the officer or any
968 person who administered or analyzed the a breath or blood test.
969 The hearing officer may permit witnesses at the formal review
970 hearing to appear telephonically.
971 (12) The formal review hearing and the informal review
972 hearing are exempt from the provisions of chapter 120. The
973 department may is authorized to adopt rules for the conduct of
974 reviews under this section.
975 (13) Pursuant to s. 322.31, a person may appeal any
976 decision of the department sustaining the disqualification from
977 operating a commercial motor vehicle by a petition for writ of
978 certiorari to the circuit court in the county in which the
979 wherein such person resides or wherein a formal or informal
980 review was conducted pursuant to s. 322.31. However, an appeal
981 does shall not stay the disqualification. This subsection does
982 shall not be construed to provide for a de novo appeal.
983 (14) The decision of the department under this section may
984 shall not be considered in any trial for a violation of s.
985 316.193, s. 322.61, or s. 322.62, and a nor shall any written
986 statement submitted by a person in his or her request for
987 departmental review under this section may not be admitted be
988 admissible into evidence against him or her in any such trial.
989 The disposition of any related criminal proceeding may
990 proceedings shall not affect a disqualification imposed pursuant
991 to this section.
992 (15) This section does not preclude the suspension of the
993 driving privilege pursuant to s. 322.2615. The driving privilege
994 of a person who has been disqualified from operating a
995 commercial motor vehicle also may also be suspended for a
996 violation of s. 316.193.
997 Section 6. This act shall take effect July 1, 2012.