Florida Senate - 2013                                     SB 876
       
       
       
       By Senator Stargel
       
       
       
       
       15-01082B-13                                           2013876__
    1                        A bill to be entitled                      
    2         An act relating to offenses against unborn children;
    3         providing a short title; amending s. 775.021, F.S.;
    4         providing a rule of construction that a person who
    5         engages in conduct that violates any provision of the
    6         Florida Criminal Code or of a criminal offense defined
    7         by another statute and causes the death of, or bodily
    8         injury to, an unborn child commits a separate offense
    9         if such an offense is not otherwise specifically
   10         provided for; providing for criminal penalties for
   11         such an offense; specifying that certain types of
   12         knowledge or intent are not necessary for such an
   13         offense; providing exceptions; providing a definition;
   14         amending ss. 316.193, 435.04, 782.071, 782.09, and
   15         921.0022, F.S.; defining and substituting the term
   16         “unborn child” for similar terms used in provisions
   17         relating to driving under the influence, employment
   18         background screening standards, vehicular homicide,
   19         the killing of an unborn quick child by injury to the
   20         child’s mother; and the offense severity ranking chart
   21         of the Criminal Punishment Code, respectively;
   22         conforming terminology; providing an effective date.
   23  
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. This act may be cited as the “Florida Unborn
   27  Victims of Violence Act.”
   28         Section 2. Subsection (5) is added to section 775.021,
   29  Florida Statutes, to read:
   30         775.021 Rules of construction.—
   31         (5) Whoever commits an act that violates any provision of
   32  this code or commits a criminal offense defined by another
   33  statute and thereby causes the death of, or bodily injury to, an
   34  unborn child commits a separate offense if the provision or
   35  statute does not otherwise specifically provide a separate
   36  offense for such death or injury to an unborn child.
   37         (a) Except as otherwise provided in this subsection, the
   38  punishment for a separate offense under this subsection is the
   39  same as the punishment provided under this code or other statute
   40  for that conduct had the injury or death occurred to the mother
   41  of the unborn child.
   42         (b) An offense under this subsection does not require proof
   43  that the person engaging in the conduct:
   44         1. Had knowledge or should have had knowledge that the
   45  victim of the underlying offense was pregnant; or
   46         2. Intended to cause the death of, or bodily injury to, the
   47  unborn child.
   48         (c) Notwithstanding any other provision of law, the death
   49  penalty may not be imposed for an offense under this subsection.
   50         (d) This subsection does not permit the prosecution:
   51         1. Of any person for conduct relating to an abortion for
   52  which the consent of the pregnant woman, or a person authorized
   53  by law to act on her behalf, has been obtained or for which such
   54  consent is implied by law;
   55         2. Of any person for any medical treatment of the pregnant
   56  woman or her unborn child; or
   57         3. Of any woman with respect to her unborn child.
   58         (e) As used in this subsection, the term “unborn child”
   59  means a member of the species homo sapiens, at any stage of
   60  development, who is carried in the womb.
   61         Section 3. Paragraph (c) of subsection (3) of section
   62  316.193, Florida Statutes, is amended to read:
   63         316.193 Driving under the influence; penalties.—
   64         (3) Any person:
   65         (c) Who, by reason of such operation, causes or contributes
   66  to causing:
   67         1. Damage to the property or person of another commits a
   68  misdemeanor of the first degree, punishable as provided in s.
   69  775.082 or s. 775.083.
   70         2. Serious bodily injury to another, as defined in s.
   71  316.1933, commits a felony of the third degree, punishable as
   72  provided in s. 775.082, s. 775.083, or s. 775.084.
   73         3. The death of any human being or unborn quick child
   74  commits DUI manslaughter, and commits:
   75         a. A felony of the second degree, punishable as provided in
   76  s. 775.082, s. 775.083, or s. 775.084.
   77         b. A felony of the first degree, punishable as provided in
   78  s. 775.082, s. 775.083, or s. 775.084, if:
   79         (I) At the time of the crash, the person knew, or should
   80  have known, that the crash occurred; and
   81         (II) The person failed to give information and render aid
   82  as required by s. 316.062.
   83  
   84  For purposes of this subsection, the definition of the term
   85  “unborn quick child” has the same meaning as provided in s.
   86  775.021(5) shall be determined in accordance with the definition
   87  of viable fetus as set forth in s. 782.071. A person who is
   88  convicted of DUI manslaughter shall be sentenced to a mandatory
   89  minimum term of imprisonment of 4 years.
   90         Section 4. Paragraph (g) of subsection (2) of section
   91  435.04, Florida Statutes, is amended to read:
   92         435.04 Level 2 screening standards.—
   93         (2) The security background investigations under this
   94  section must ensure that no persons subject to the provisions of
   95  this section have been arrested for and are awaiting final
   96  disposition of, have been found guilty of, regardless of
   97  adjudication, or entered a plea of nolo contendere or guilty to,
   98  or have been adjudicated delinquent and the record has not been
   99  sealed or expunged for, any offense prohibited under any of the
  100  following provisions of state law or similar law of another
  101  jurisdiction:
  102         (g) Section 782.09, relating to killing of an unborn quick
  103  child by injury to the mother.
  104         Section 5. Section 782.071, Florida Statutes, is amended to
  105  read:
  106         782.071 Vehicular homicide.—“Vehicular homicide” is the
  107  killing of a human being, or the killing of an unborn child a
  108  viable fetus by any injury to the mother, caused by the
  109  operation of a motor vehicle by another in a reckless manner
  110  likely to cause the death of, or great bodily harm to, another.
  111         (1) Vehicular homicide is:
  112         (a) A felony of the second degree, punishable as provided
  113  in s. 775.082, s. 775.083, or s. 775.084.
  114         (b) A felony of the first degree, punishable as provided in
  115  s. 775.082, s. 775.083, or s. 775.084, if:
  116         1. At the time of the accident, the person knew, or should
  117  have known, that the accident occurred; and
  118         2. The person failed to give information and render aid as
  119  required by s. 316.062.
  120  
  121  This paragraph does not require that the person knew that the
  122  accident resulted in injury or death.
  123         (2) For purposes of this section, the term “unborn child”
  124  has the same meaning as provided in s. 775.021(5) a fetus is
  125  viable when it becomes capable of meaningful life outside the
  126  womb through standard medical measures.
  127         (3) A right of action for civil damages shall exist under
  128  s. 768.19, under all circumstances, for all deaths described in
  129  this section.
  130         (4) In addition to any other punishment, the court may
  131  order the person to serve 120 community service hours in a
  132  trauma center or hospital that regularly receives victims of
  133  vehicle accidents, under the supervision of a registered nurse,
  134  an emergency room physician, or an emergency medical technician
  135  pursuant to a voluntary community service program operated by
  136  the trauma center or hospital.
  137         Section 6. Section 782.09, Florida Statutes, is amended to
  138  read:
  139         782.09 Killing of unborn quick child by injury to mother.—
  140         (1) The unlawful killing of an unborn quick child, by any
  141  injury to the mother of such child which would be murder if it
  142  resulted in the death of such mother, shall be deemed murder in
  143  the same degree as that which would have been committed against
  144  the mother. Any person, other than the mother, who unlawfully
  145  kills an unborn quick child by any injury to the mother:
  146         (a) Which would be murder in the first degree constituting
  147  a capital felony if it resulted in the mother’s death commits
  148  murder in the first degree constituting a capital felony,
  149  punishable as provided in s. 775.082.
  150         (b) Which would be murder in the second degree if it
  151  resulted in the mother’s death commits murder in the second
  152  degree, a felony of the first degree, punishable as provided in
  153  s. 775.082, s. 775.083, or s. 775.084.
  154         (c) Which would be murder in the third degree if it
  155  resulted in the mother’s death commits murder in the third
  156  degree, a felony of the second degree, punishable as provided in
  157  s. 775.082, s. 775.083, or s. 775.084.
  158         (2) The unlawful killing of an unborn quick child by any
  159  injury to the mother of such child which would be manslaughter
  160  if it resulted in the death of such mother shall be deemed
  161  manslaughter. A person who unlawfully kills an unborn quick
  162  child by any injury to the mother which would be manslaughter if
  163  it resulted in the mother’s death commits manslaughter, a felony
  164  of the second degree, punishable as provided in s. 775.082, s.
  165  775.083, or s. 775.084.
  166         (3) The death of the mother resulting from the same act or
  167  criminal episode that caused the death of the unborn quick child
  168  does not bar prosecution under this section.
  169         (4) This section does not authorize the prosecution of any
  170  person in connection with a termination of pregnancy pursuant to
  171  chapter 390.
  172         (5) For purposes of this section, the definition of the
  173  term “unborn quick child” has the same meaning as provided in s.
  174  775.021(5) shall be determined in accordance with the definition
  175  of viable fetus as set forth in s. 782.071.
  176         Section 7. Paragraph (g) of subsection (3) of section
  177  921.0022, Florida Statutes, is amended to read:
  178         921.0022 Criminal Punishment Code; offense severity ranking
  179  chart.—
  180         (3) OFFENSE SEVERITY RANKING CHART
  181         (g) LEVEL 7
  182  FloridaStatute   FelonyDegree                Description                
  183  316.027(1)(b)       1st   Accident involving death, failure to stop; leaving scene.
  184  316.193(3)(c)2.     3rd   DUI resulting in serious bodily injury.    
  185  316.1935(3)(b)      1st   Causing serious bodily injury or death to another person; driving at high speed or with wanton disregard for safety while fleeing or attempting to elude law enforcement officer who is in a patrol vehicle with siren and lights activated.
  186  327.35(3)(c)2.      3rd   Vessel BUI resulting in serious bodily injury.
  187  402.319(2)          2nd   Misrepresentation and negligence or intentional act resulting in great bodily harm, permanent disfiguration, permanent disability, or death.
  188  409.920 (2)(b)1.a.   3rd   Medicaid provider fraud; $10,000 or less.  
  189  409.920 (2)(b)1.b.   2nd   Medicaid provider fraud; more than $10,000, but less than $50,000.
  190  456.065(2)          3rd   Practicing a health care profession without a license.
  191  456.065(2)          2nd   Practicing a health care profession without a license which results in serious bodily injury.
  192  458.327(1)          3rd   Practicing medicine without a license.     
  193  459.013(1)          3rd   Practicing osteopathic medicine without a license.
  194  460.411(1)          3rd   Practicing chiropractic medicine without a license.
  195  461.012(1)          3rd   Practicing podiatric medicine without a license.
  196  462.17              3rd   Practicing naturopathy without a license.  
  197  463.015(1)          3rd   Practicing optometry without a license.    
  198  464.016(1)          3rd   Practicing nursing without a license.      
  199  465.015(2)          3rd   Practicing pharmacy without a license.     
  200  466.026(1)          3rd   Practicing dentistry or dental hygiene without a license.
  201  467.201             3rd   Practicing midwifery without a license.    
  202  468.366             3rd   Delivering respiratory care services without a license.
  203  483.828(1)          3rd   Practicing as clinical laboratory personnel without a license.
  204  483.901(9)          3rd   Practicing medical physics without a license.
  205  484.013(1)(c)       3rd   Preparing or dispensing optical devices without a prescription.
  206  484.053             3rd   Dispensing hearing aids without a license. 
  207  494.0018(2)         1st   Conviction of any violation of ss. 494.001-494.0077 in which the total money and property unlawfully obtained exceeded $50,000 and there were five or more victims.
  208  560.123(8)(b)1.     3rd   Failure to report currency or payment instruments exceeding $300 but less than $20,000 by a money services business.
  209  560.125(5)(a)       3rd   Money services business by unauthorized person, currency or payment instruments exceeding $300 but less than $20,000.
  210  655.50(10)(b)1.     3rd   Failure to report financial transactions exceeding $300 but less than $20,000 by financial institution.
  211  775.21(10)(a)       3rd   Sexual predator; failure to register; failure to renew driver’s license or identification card; other registration violations.
  212  775.21(10)(b)       3rd   Sexual predator working where children regularly congregate.
  213  775.21(10)(g)       3rd   Failure to report or providing false information about a sexual predator; harbor or conceal a sexual predator.
  214  782.051(3)          2nd   Attempted felony murder of a person by a person other than the perpetrator or the perpetrator of an attempted felony.
  215  782.07(1)           2nd   Killing of a human being by the act, procurement, or culpable negligence of another (manslaughter).
  216  782.071             2nd   Killing of a human being or unborn child viable fetus by the operation of a motor vehicle in a reckless manner (vehicular homicide).
  217  782.072             2nd   Killing of a human being by the operation of a vessel in a reckless manner (vessel homicide).
  218  784.045(1)(a)1.     2nd   Aggravated battery; intentionally causing great bodily harm or disfigurement.
  219  784.045(1)(a)2.     2nd   Aggravated battery; using deadly weapon.   
  220  784.045(1)(b)       2nd   Aggravated battery; perpetrator aware victim pregnant.
  221  784.048(4)          3rd   Aggravated stalking; violation of injunction or court order.
  222  784.048(7)          3rd   Aggravated stalking; violation of court order.
  223  784.07(2)(d)        1st   Aggravated battery on law enforcement officer.
  224  784.074(1)(a)       1st   Aggravated battery on sexually violent predators facility staff.
  225  784.08(2)(a)        1st   Aggravated battery on a person 65 years of age or older.
  226  784.081(1)          1st   Aggravated battery on specified official or employee.
  227  784.082(1)          1st   Aggravated battery by detained person on visitor or other detainee.
  228  784.083(1)          1st   Aggravated battery on code inspector.      
  229  787.06(3)(a)        1st   Human trafficking using coercion for labor and services.
  230  787.06(3)(e)        1st   Human trafficking using coercion for labor and services by the transfer or transport of any individual from outside Florida to within the state.
  231  790.07(4)           1st   Specified weapons violation subsequent to previous conviction of s. 790.07(1) or (2).
  232  790.16(1)           1st   Discharge of a machine gun under specified circumstances.
  233  790.165(2)          2nd   Manufacture, sell, possess, or deliver hoax bomb.
  234  790.165(3)          2nd   Possessing, displaying, or threatening to use any hoax bomb while committing or attempting to commit a felony.
  235  790.166(3)          2nd   Possessing, selling, using, or attempting to use a hoax weapon of mass destruction.
  236  790.166(4)          2nd   Possessing, displaying, or threatening to use a hoax weapon of mass destruction while committing or attempting to commit a felony.
  237  790.23            1st,PBL Possession of a firearm by a person who qualifies for the penalty enhancements provided for in s. 874.04.
  238  794.08(4)           3rd   Female genital mutilation; consent by a parent, guardian, or a person in custodial authority to a victim younger than 18 years of age.
  239  796.03              2nd   Procuring any person under 16 years for prostitution.
  240  800.04(5)(c)1.      2nd   Lewd or lascivious molestation; victim less than 12 years of age; offender less than 18 years.
  241  800.04(5)(c)2.      2nd   Lewd or lascivious molestation; victim 12 years of age or older but less than 16 years; offender 18 years or older.
  242  806.01(2)           2nd   Maliciously damage structure by fire or explosive.
  243  810.02(3)(a)        2nd   Burglary of occupied dwelling; unarmed; no assault or battery.
  244  810.02(3)(b)        2nd   Burglary of unoccupied dwelling; unarmed; no assault or battery.
  245  810.02(3)(d)        2nd   Burglary of occupied conveyance; unarmed; no assault or battery.
  246  810.02(3)(e)        2nd   Burglary of authorized emergency vehicle.  
  247  812.014(2)(a)1.     1st   Property stolen, valued at $100,000 or more or a semitrailer deployed by a law enforcement officer; property stolen while causing other property damage; 1st degree grand theft.
  248  812.014(2)(b)2.     2nd   Property stolen, cargo valued at less than $50,000, grand theft in 2nd degree.
  249  812.014(2)(b)3.     2nd   Property stolen, emergency medical equipment; 2nd degree grand theft.
  250  812.014(2)(b)4.     2nd   Property stolen, law enforcement equipment from authorized emergency vehicle.
  251  812.0145(2)(a)      1st   Theft from person 65 years of age or older; $50,000 or more.
  252  812.019(2)          1st   Stolen property; initiates, organizes, plans, etc., the theft of property and traffics in stolen property.
  253  812.131(2)(a)       2nd   Robbery by sudden snatching.               
  254  812.133(2)(b)       1st   Carjacking; no firearm, deadly weapon, or other weapon.
  255  817.234(8)(a)       2nd   Solicitation of motor vehicle accident victims with intent to defraud.
  256  817.234(9)          2nd   Organizing, planning, or participating in an intentional motor vehicle collision.
  257  817.234(11)(c)      1st   Insurance fraud; property value $100,000 or more.
  258  817.2341 (2)(b) & (3)(b)   1st   Making false entries of material fact or false statements regarding property values relating to the solvency of an insuring entity which are a significant cause of the insolvency of that entity.
  259  825.102(3)(b)       2nd   Neglecting an elderly person or disabled adult causing great bodily harm, disability, or disfigurement.
  260  825.103(2)(b)       2nd   Exploiting an elderly person or disabled adult and property is valued at $20,000 or more, but less than $100,000.
  261  827.03(2)(b)        2nd   Neglect of a child causing great bodily harm, disability, or disfigurement.
  262  827.04(3)           3rd   Impregnation of a child under 16 years of age by person 21 years of age or older.
  263  837.05(2)           3rd   Giving false information about alleged capital felony to a law enforcement officer.
  264  838.015             2nd   Bribery.                                   
  265  838.016             2nd   Unlawful compensation or reward for official behavior.
  266  838.021(3)(a)       2nd   Unlawful harm to a public servant.         
  267  838.22              2nd   Bid tampering.                             
  268  847.0135(3)         3rd   Solicitation of a child, via a computer service, to commit an unlawful sex act.
  269  847.0135(4)         2nd   Traveling to meet a minor to commit an unlawful sex act.
  270  872.06              2nd   Abuse of a dead human body.                
  271  874.10            1st,PBL Knowingly initiates, organizes, plans, finances, directs, manages, or supervises criminal gang-related activity.
  272  893.13(1)(c)1.      1st   Sell, manufacture, or deliver cocaine (or other drug prohibited under s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4.) within 1,000 feet of a child care facility, school, or state, county, or municipal park or publicly owned recreational facility or community center.
  273  893.13(1)(e)1.      1st   Sell, manufacture, or deliver cocaine or other drug prohibited under s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4., within 1,000 feet of property used for religious services or a specified business site.
  274  893.13(4)(a)        1st   Deliver to minor cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs).
  275  893.135(1)(a)1.     1st   Trafficking in cannabis, more than 25 lbs., less than 2,000 lbs.
  276  893.135 (1)(b)1.a.   1st   Trafficking in cocaine, more than 28 grams, less than 200 grams.
  277  893.135 (1)(c)1.a.   1st   Trafficking in illegal drugs, more than 4 grams, less than 14 grams.
  278  893.135(1)(d)1.     1st   Trafficking in phencyclidine, more than 28 grams, less than 200 grams.
  279  893.135(1)(e)1.     1st   Trafficking in methaqualone, more than 200 grams, less than 5 kilograms.
  280  893.135(1)(f)1.     1st   Trafficking in amphetamine, more than 14 grams, less than 28 grams.
  281  893.135 (1)(g)1.a.   1st   Trafficking in flunitrazepam, 4 grams or more, less than 14 grams.
  282  893.135 (1)(h)1.a.   1st   Trafficking in gamma-hydroxybutyric acid (GHB), 1 kilogram or more, less than 5 kilograms.
  283  893.135 (1)(j)1.a.   1st   Trafficking in 1,4-Butanediol, 1 kilogram or more, less than 5 kilograms.
  284  893.135 (1)(k)2.a.   1st   Trafficking in Phenethylamines, 10 grams or more, less than 200 grams.
  285  893.1351(2)         2nd   Possession of place for trafficking in or manufacturing of controlled substance.
  286  896.101(5)(a)       3rd   Money laundering, financial transactions exceeding $300 but less than $20,000.
  287  896.104(4)(a)1.     3rd   Structuring transactions to evade reporting or registration requirements, financial transactions exceeding $300 but less than $20,000.
  288  943.0435(4)(c)      2nd   Sexual offender vacating permanent residence; failure to comply with reporting requirements.
  289  943.0435(8)         2nd   Sexual offender; remains in state after indicating intent to leave; failure to comply with reporting requirements.
  290  943.0435(9)(a)      3rd   Sexual offender; failure to comply with reporting requirements.
  291  943.0435(13)        3rd   Failure to report or providing false information about a sexual offender; harbor or conceal a sexual offender.
  292  943.0435(14)        3rd   Sexual offender; failure to report and reregister; failure to respond to address verification.
  293  944.607(9)          3rd   Sexual offender; failure to comply with reporting requirements.
  294  944.607(10)(a)      3rd   Sexual offender; failure to submit to the taking of a digitized photograph.
  295  944.607(12)         3rd   Failure to report or providing false information about a sexual offender; harbor or conceal a sexual offender.
  296  944.607(13)         3rd   Sexual offender; failure to report and reregister; failure to respond to address verification.
  297  985.4815(10)        3rd   Sexual offender; failure to submit to the taking of a digitized photograph.
  298  985.4815(12)        3rd   Failure to report or providing false information about a sexual offender; harbor or conceal a sexual offender.
  299  985.4815(13)        3rd   Sexual offender; failure to report and reregister; failure to respond to address verification.
  300         Section 8. This act shall take effect October 1, 2013.