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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to operating vehicles and vessels 2
under the influence; amending ss. 316.193 and 327.35, 3
F.S.; revising conditions under which a person commits 4
the offense of driving under the influence or boating 5
under the influence, respectively; providing an 6
affirmative defense; revising a condition that must be 7
met before a person arrested for driving under the 8
influence or boating under the influence, 9
respectively, may be released from custody; defining 10
the term "impairing substance"; providing 11
construction; amending s. 933.02, F.S.; adding 12
specified grounds for issuance of a search warrant; 13
amending ss. 316.1932 and 316.1933, F.S.; conforming 14
cross-references; providing an effective date. 15
16
Be It Enacted by the Legislature of the State of Florida: 17
18
Section 1. Present paragraphs (c) and (d) of subsection 19
(14) of section 316.193, Florida Statutes, are redesignated as 20
paragraphs (d) and (e), respectively, a new paragraph (c) is 21
added to that subsection, subsections (1) and (9) of that 22
section are amended, and subsection (2) of that section is 23
republished, to read: 24
316.193 Driving under the influence; penalties. — 25
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(1)(a) A person commits is guilty of the offense of 26
driving under the influence and is subject to punishment as 27
provided in subsection (2) if the person is driving or in actual 28
physical control of a vehicle within this state and: 29
1.(a) The person is under the influence of alcoholic 30
beverages, any chemical substance set forth in s. 877.111, or 31
any substance controlled under chapter 893, or any other 32
impairing substance, or any combination thereof, when affected 33
to the extent that the person's normal faculties are impaired; 34
2.(b) The person has a blood-alcohol level of 0.08 or more 35
grams of alcohol per 100 milliliters of blood; or 36
3.(c) The person has a breath -alcohol level of 0.08 or 37
more grams of alcohol per 210 liters of breath ; or 38
4. The person has in his or her blood any amount of a 39
chemical substance set forth in s. 877.111 or a substance 40
controlled under chapter 893, or such chemical or controlled 41
substance in any combination with alcohol as a result of 42
consuming alcohol before or during driving . 43
(b) It is an affirmative defense as t o the presence of a 44
chemical or controlled substance under subparagraph (a)4. that 45
the person ingested, injected, or inhaled the substance in 46
accordance with a valid prescription issued pursuant to s. 47
893.04 by a practitioner as defined in s. 893.02, or pu rsuant to 48
s. 381.986, and in accordance with the practitioner's 49
directions. However, the fact that a person is or was legally 50
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entitled to consume alcohol or any other chemical or controlled 51
substance, medication, drug, or other impairing substance is not 52
an affirmative defense to this section. 53
(2)(a) Except as provided in paragraph (b), subsection 54
(3), or subsection (4), any person who is convicted of a 55
violation of subsection (1) shall be punished: 56
1. By a fine of: 57
a. Not less than $500 or more than $1,000 for a first 58
conviction. 59
b. Not less than $1,000 or more than $2,000 for a second 60
conviction; and 61
2. By imprisonment for: 62
a. Not more than 6 months for a first conviction. 63
b. Not more than 9 months for a second conviction. 64
3. For a second conviction, by mandatory placement for a 65
period of at least 1 year, at the convicted person's sole 66
expense, of an ignition interlock device approved by the 67
department in accordance with s. 316.1938 upon all vehicles that 68
are individually or jointly leased or owned and routinely 69
operated by the convicted person, when the convicted person 70
qualifies for a permanent or restricted license. 71
72
The portion of a fine imposed in excess of $500 pursuant to sub -73
subparagraph 1.a. and the portion of a fine imposed in exce ss of 74
$1,000 pursuant to sub -subparagraph 1.b., shall be remitted by 75
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the clerk to the Department of Revenue for deposit into the 76
General Revenue Fund. 77
(b)1. Any person who is convicted of a third violation of 78
this section for an offense that occurs withi n 10 years after a 79
prior conviction for a violation of this section commits a 80
felony of the third degree, punishable as provided in s. 81
775.082, s. 775.083, or s. 775.084. In addition, the court shall 82
order the mandatory placement for a period of not less t han 2 83
years, at the convicted person's sole expense, of an ignition 84
interlock device approved by the department in accordance with 85
s. 316.1938 upon all vehicles that are individually or jointly 86
leased or owned and routinely operated by the convicted person , 87
when the convicted person qualifies for a permanent or 88
restricted license. 89
2. Any person who is convicted of a third violation of 90
this section for an offense that occurs more than 10 years after 91
the date of a prior conviction for a violation of this se ction 92
shall be punished by a fine of not less than $2,000 or more than 93
$5,000 and by imprisonment for not more than 12 months. The 94
portion of a fine imposed in excess of $2,500 pursuant to this 95
subparagraph shall be remitted by the clerk to the Department of 96
Revenue for deposit into the General Revenue Fund. In addition, 97
the court shall order the mandatory placement for a period of at 98
least 2 years, at the convicted person's sole expense, of an 99
ignition interlock device approved by the department in 100
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accordance with s. 316.1938 upon all vehicles that are 101
individually or jointly leased or owned and routinely operated 102
by the convicted person, when the convicted person qualifies for 103
a permanent or restricted license. 104
3. Any person who is convicted of a fourth or subsequent 105
violation of this section, regardless of when any prior 106
conviction for a violation of this section occurred, commits a 107
felony of the third degree, punishable as provided in s. 108
775.082, s. 775.083, or s. 775.084. However, the fine imposed 109
for such fourth or subsequent violation may be not less than 110
$2,000. The portion of a fine imposed in excess of $1,000 111
pursuant to this subparagraph shall be remitted by the clerk to 112
the Department of Revenue for deposit into the General Revenue 113
Fund. 114
(c) In addition to the penalties in paragraph (a), the 115
court may order placement, at the convicted person's sole 116
expense, of an ignition interlock device approved by the 117
department in accordance with s. 316.1938 for at least 6 118
continuous months upon all vehicles that are individually or 119
jointly leased or owned and routinely operated by the convicted 120
person if, at the time of the offense, the person had a blood -121
alcohol level or breath -alcohol level of .08 or higher. 122
(9) A person who is arrested for a violation o f this 123
section may not be released from custody: 124
(a) Until the person is no longer under the influence of 125
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alcoholic beverages, any chemical substance set forth in s. 126
877.111, or any substance controlled under chapter 893 , or any 127
other impairing substance , or any combination thereof, and 128
affected to the extent that his or her normal faculties are 129
impaired; 130
(b) Until the person's blood -alcohol level or breath -131
alcohol level is less than 0.05; or 132
(c) Until 8 hours have elapsed from the time the person 133
was arrested. 134
(14) As used in this chapter, the term: 135
(c) "Impairing substance" means any substance that, when 136
taken into the human body, can impair, or diminish in some 137
material respect, a person's normal faculties. Such normal 138
faculties include, but are not limited to, the ability to see, 139
hear, walk, talk, judge distances, drive a motor vehicle, make 140
judgments, act in emergencies, and, in general, normally perform 141
the many mental and physical acts of daily life. 142
Section 2. Subsections (1) and (8) of section 327.35, 143
Florida Statutes, are amended, subsection (11) is added to that 144
section, and subsection (2) of that section is republished, to 145
read: 146
327.35 Boating under the influence; penalties; "designated 147
drivers."— 148
(1)(a) A person commits is guilty of the offense of 149
boating under the influence and is subject to punishment as 150
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provided in subsection (2) if the person is operating a vessel 151
within this state and: 152
1.(a) The person is under the influence of alcoholic 153
beverages, any chemical substance se t forth in s. 877.111, or 154
any substance controlled under chapter 893, or any other 155
impairing substance, or any combination thereof, when affected 156
to the extent that the person's normal faculties are impaired; 157
2.(b) The person has a blood -alcohol level of 0.08 or more 158
grams of alcohol per 100 milliliters of blood; or 159
3.(c) The person has a breath -alcohol level of 0.08 or 160
more grams of alcohol per 210 liters of breath ; or 161
4. The person has in his or her blood any amount of a 162
chemical substance set forth in s. 877.111 or a substance 163
controlled under chapter 893, or such chemical or controlled 164
substance in any combination with alcohol as a result of 165
consuming alcohol before or during operating . 166
(b) It is an affirmative defense as to the presence of a 167
chemical or controlled substance under subparagraph (a)4. that 168
the person ingested, injected, or inhaled the substance in 169
accordance with a valid prescription issued pursuant to s. 170
893.04 by a practitioner as defined in s. 893.02, or pursuant to 171
s. 381.986, and in accordance with the practitioner's 172
directions. However, the fact that a person is or was legally 173
entitled to consume alcohol or any other chemical or controlled 174
substance, medication, drug, or other impairing substance is not 175
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an affirmative defense t o this section. 176
(2)(a) Except as provided in paragraph (b), subsection 177
(3), or subsection (4), any person who is convicted of a 178
violation of subsection (1) shall be punished: 179
1. By a fine of: 180
a. Not less than $500 or more than $1,000 for a first 181
conviction. 182
b. Not less than $1,000 or more than $2,000 for a second 183
conviction; and 184
2. By imprisonment for: 185
a. Not more than 6 months for a first conviction. 186
b. Not more than 9 months for a second conviction. 187
188
The portion of a fine imposed in excess of $500 pursuant to sub -189
subparagraph 1.a. and the portion of a fine imposed in excess of 190
$1,000 pursuant to sub -subparagraph 1.b., shall be remitted by 191
the clerk to the Department of Revenue for deposit into the 192
General Revenue Fund. 193
(b)1. Any person who is convicted of a third violation of 194
this section for an offense that occurs within 10 years after a 195
prior conviction for a violation of this section commits a 196
felony of the third degree, punishable as provided in s. 197
775.082, s. 775.083, or s. 775.084. 198
2. Any person who is convicted of a third violation of 199
this section for an offense that occurs more than 10 years after 200
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the date of a prior conviction for a violation of this section 201
shall be punished by a fine of not less than $2,000 or more than 202
$5,000 and by imprisonment for not more than 12 months. The 203
portion of a fine imposed in excess of $2,500 pursuant to this 204
subparagraph shall be remitted by the clerk to the Department of 205
Revenue for deposit into the General Revenue Fund. 206
3. Any person who is co nvicted of a fourth or subsequent 207
violation of this section, regardless of when any prior 208
conviction for a violation of this section occurred, commits a 209
felony of the third degree, punishable as provided in s. 210
775.082, s. 775.083, or s. 775.084. 211
212
However, the fine imposed for such fourth or subsequent 213
violation may not be less than $2,000. The portion of such fine 214
imposed in excess of $1,000 shall be remitted by the clerk to 215
the Department of Revenue for deposit into the General Revenue 216
Fund. 217
(8) A person who is arrested for a violation of this 218
section may not be released from custody: 219
(a) Until the person is no longer under the influence of 220
alcoholic beverages, any chemical substance set forth in s. 221
877.111, or any substance controlled under chapter 893 , or any 222
other impairing substance, or any combination thereof, and 223
affected to the extent that his or her normal faculties are 224
impaired; 225
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(b) Until the person's blood -alcohol level or breath -226
alcohol level is less than 0.05; or 227
(c) Until 8 hours have el apsed from the time the person 228
was arrested. 229
(11) As used in this section, the term "impairing 230
substance" means any substance that, when taken into the human 231
body, can impair, or diminish in some material respect, a 232
person's normal faculties. Such normal faculties include, but 233
are not limited to, the ability to see, hear, walk, talk, judge 234
distances, drive a motor vehicle, make judgments, act in 235
emergencies, and, in general, normally perform the many mental 236
and physical acts of daily life. 237
Section 3. Section 933.02, Florida Statutes, is amended to 238
read: 239
933.02 Grounds for issuance of search warrant. —Upon proper 240
affidavits being made, a search warrant may be issued under the 241
provisions of this chapter upon any of the following grounds: 242
(1) When the property shall have been stolen or embezzled 243
in violation of law; 244
(2) When any property shall have been used: 245
(a) As a means to commit any crime; 246
(b) In connection with gambling, gambling implements and 247
appliances; or 248
(c) In violation of s. 847.011 or other laws in reference 249
to obscene prints and literature; 250
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(3) When any property constitutes evidence relevant to 251
proving that a felony has been committed; 252
(4) When any property is being held or possessed: 253
(a) In violation of any of the laws prohi biting the 254
manufacture, sale, and transportation of intoxicating liquors; 255
(b) In violation of the fish and game laws; 256
(c) In violation of the laws relative to food and drug; or 257
(d) In violation of the laws relative to citrus disease 258
pursuant to s. 581.184; or 259
(5) When the laws in relation to cruelty to animals, as 260
provided in chapter 828, have been or are violated in any 261
particular building or place ; or 262
(6) When a sample of the blood of a person constitutes 263
evidence relevant to proving that a viol ation of s. 316.193 or 264
s. 327.35 has been committed . 265
266
This section also applies to any papers or documents used as a 267
means of or in aid of the commission of any offense against the 268
laws of the state. 269
Section 4. Paragraph (f) of subsection (1) of section 270
316.1932, Florida Statutes, is amended to read: 271
316.1932 Tests for alcohol, chemical substances, or 272
controlled substances; implied consent; refusal. — 273
(1) 274
(f)1. The tests determining the weight of alcohol in the 275
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defendant's blood or breath shal l be administered at the request 276
of a law enforcement officer substantially in accordance with 277
rules of the Department of Law Enforcement. Such rules must 278
specify precisely the test or tests that are approved by the 279
Department of Law Enforcement for reliab ility of result and ease 280
of administration, and must provide an approved method of 281
administration which must be followed in all such tests given 282
under this section. However, the failure of a law enforcement 283
officer to request the withdrawal of blood does n ot affect the 284
admissibility of a test of blood withdrawn for medical purposes. 285
2.a. Only a physician, certified paramedic, registered 286
nurse, licensed practical nurse, other personnel authorized by a 287
hospital to draw blood, or duly licensed clinical labor atory 288
director, supervisor, technologist, or technician, acting at the 289
request of a law enforcement officer, may withdraw blood for the 290
purpose of determining its alcoholic content or the presence of 291
chemical substances or controlled substances therein. Ho wever, 292
the failure of a law enforcement officer to request the 293
withdrawal of blood does not affect the admissibility of a test 294
of blood withdrawn for medical purposes. 295
b. Notwithstanding any provision of law pertaining to the 296
confidentiality of hospital records or other medical records, if 297
a health care provider, who is providing medical care in a 298
health care facility to a person injured in a motor vehicle 299
crash, becomes aware, as a result of any blood test performed in 300
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the course of that medical treatmen t, that the person's blood -301
alcohol level meets or exceeds the blood -alcohol level specified 302
in s. 316.193(1)(a)2. s. 316.193(1)(b), the health care provider 303
may notify any law enforcement officer or law enforcement 304
agency. Any such notice must be given wit hin a reasonable time 305
after the health care provider receives the test result. Any 306
such notice shall be used only for the purpose of providing the 307
law enforcement officer with reasonable cause to request the 308
withdrawal of a blood sample pursuant to this se ction. 309
c. The notice must shall consist only of the name of the 310
person being treated, the name of the person who drew the blood, 311
the blood-alcohol level indicated by the test, and the date and 312
time of the administration of the test. 313
d. Nothing containe d in s. 395.3025(4), s. 456.057, or any 314
applicable practice act affects the authority to provide notice 315
under this section, and the health care provider is not 316
considered to have breached any duty owed to the person under s. 317
395.3025(4), s. 456.057, or any applicable practice act by 318
providing notice or failing to provide notice. It is not shall 319
not be a breach of any ethical, moral, or legal duty for a 320
health care provider to provide notice or fail to provide 321
notice. 322
e. A civil, criminal, or administrativ e action may not be 323
brought against any person or health care provider participating 324
in good faith in the provision of notice or failure to provide 325
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notice as provided in this section. Any person or health care 326
provider participating in the provision of not ice or failure to 327
provide notice as provided in this section shall be immune from 328
any civil or criminal liability and from any professional 329
disciplinary action with respect to the provision of notice or 330
failure to provide notice under this section. Any suc h 331
participant has the same immunity with respect to participating 332
in any judicial proceedings resulting from the notice or failure 333
to provide notice. 334
3. The person tested may, at his or her own expense, have 335
a physician, registered nurse, other personnel authorized by a 336
hospital to draw blood, or duly licensed clinical laboratory 337
director, supervisor, technologist, or technician, or other 338
person of his or her own choosing administer an independent test 339
in addition to the test administered at the direction of the law 340
enforcement officer for the purpose of determining the amount of 341
alcohol in the person's blood or breath or the presence of 342
chemical substances or controlled substances at the time 343
alleged, as shown by chemical analysis of his or her blood or 344
urine, or by chemical or physical test of his or her breath. The 345
failure or inability to obtain an independent test by a person 346
does not preclude the admissibility in evidence of the test 347
taken at the direction of the law enforcement officer. The law 348
enforcement officer shall not interfere with the person's 349
opportunity to obtain the independent test and shall provide the 350
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person with timely telephone access to secure the test, but the 351
burden is on the person to arrange and secure the test at the 352
person's own expense. 353
4. Upon the request of the person tested, full information 354
concerning the results of the test taken at the direction of the 355
law enforcement officer shall be made available to the person or 356
his or her attorney. Full information is limited to the 357
following: 358
a. The type of test administered and the procedures 359
followed. 360
b. The time of the collection of the blood or breath 361
sample analyzed. 362
c. The numerical results of the test indicating the 363
alcohol content of the blood and breath. 364
d. The type and status of any permit issued by the 365
Department of Law Enforcement which was held by the person who 366
performed the test. 367
e. If the test was administered by means of a breath 368
testing instrument, the date of performance of the most recent 369
required inspection of such instrument. 370
371
Full information does not include manuals, schematics, or 372
software of the instrument used to test the person or any other 373
material that is not in the actual possession of the state. 374
Additionally, full information does not include i nformation in 375
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the possession of the manufacturer of the test instrument. 376
5. A hospital, clinical laboratory, medical clinic, or 377
similar medical institution or physician, certified paramedic, 378
registered nurse, licensed practical nurse, other personnel 379
authorized by a hospital to draw blood, or duly licensed 380
clinical laboratory director, supervisor, technologist, or 381
technician, or other person assisting a law enforcement officer 382
does not incur any civil or criminal liability as a result of 383
the withdrawal or analysis of a blood or urine specimen, or the 384
chemical or physical test of a person's breath pursuant to 385
accepted medical standards when requested by a law enforcement 386
officer, regardless of whether or not the subject resisted 387
administration of the test. 388
Section 5. Paragraph (a) of subsection (2) of section 389
316.1933, Florida Statutes, is amended to read: 390
316.1933 Blood test for impairment or intoxication in 391
cases of death or serious bodily injury; right to use reasonable 392
force.— 393
(2)(a) Only a physi cian, certified paramedic, registered 394
nurse, licensed practical nurse, other personnel authorized by a 395
hospital to draw blood, or duly licensed clinical laboratory 396
director, supervisor, technologist, or technician, acting at the 397
request of a law enforcemen t officer, may withdraw blood for the 398
purpose of determining the alcoholic content thereof or the 399
presence of chemical substances or controlled substances 400
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therein. However, the failure of a law enforcement officer to 401
request the withdrawal of blood does not shall not affect the 402
admissibility of a test of blood withdrawn for medical purposes. 403
1. Notwithstanding any provision of law pertaining to the 404
confidentiality of hospital records or other medical records, if 405
a health care provider , who is providing medical care in a 406
health care facility to a person injured in a motor vehicle 407
crash, becomes aware, as a result of any blood test performed in 408
the course of that medical treatment, that the person's blood -409
alcohol level meets or exceeds the blood -alcohol level specified 410
in s. 316.193(1)(a)2. s. 316.193(1)(b), the health care provider 411
may notify any law enforcement officer or law enforcement 412
agency. Any such notice must be given within a reasonable time 413
after the health care provider receives the test result. A ny 414
such notice shall be used only for the purpose of providing the 415
law enforcement officer with reasonable cause to request the 416
withdrawal of a blood sample pursuant to this section. 417
2. The notice must shall consist only of the name of the 418
person being treated, the name of the person who drew the blood, 419
the blood-alcohol level indicated by the test, and the date and 420
time of the administration of the test. 421
3. Nothing contained in s. 395.3025(4), s. 456.057, or any 422
applicable practice act affects the auth ority to provide notice 423
under this section, and the health care provider is not 424
considered to have breached any duty owed to the person under s. 425
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395.3025(4), s. 456.057, or any applicable practice act by 426
providing notice or failing to provide notice. It is not shall 427
not be a breach of any ethical, moral, or legal duty for a 428
health care provider to provide notice or fail to provide 429
notice. 430
4. A civil, criminal, or administrative action may not be 431
brought against any person or health care provider participa ting 432
in good faith in the provision of notice or failure to provide 433
notice as provided in this section. Any person or health care 434
provider participating in the provision of notice or failure to 435
provide notice as provided in this section shall be immune fro m 436
any civil or criminal liability and from any professional 437
disciplinary action with respect to the provision of notice or 438
failure to provide notice under this section. Any such 439
participant has the same immunity with respect to participating 440
in any judicial proceedings resulting from the notice or failure 441
to provide notice. 442
Section 6. This act shall take effect October 1, 2023. 443