Florida Senate - 2023 SB 448 By Senator Berman 26-00065E-23 2023448__ 1 A bill to be entitled 2 An act relating to operating vehicles and vessels 3 under the influence; amending ss. 316.193 and 327.35, 4 F.S.; revising conditions under which a person commits 5 the offense of driving under the influence or boating 6 under the influence, respectively; providing an 7 affirmative defense; revising a condition that must be 8 met before a person arrested for driving under the 9 influence or boating under the influence, 10 respectively, may be released from custody; defining 11 the term impairing substance; providing 12 construction; amending s. 933.02, F.S.; adding 13 specified grounds for issuance of a search warrant; 14 amending ss. 316.1932 and 316.1933, F.S.; conforming 15 cross-references; providing an effective date. 16 17 Be It Enacted by the Legislature of the State of Florida: 18 19 Section 1.Present paragraphs (c) and (d) of subsection 20 (14) of section 316.193, Florida Statutes, are redesignated as 21 paragraphs (d) and (e), respectively, a new paragraph (c) is 22 added to that subsection, subsections (1) and (9) of that 23 section are amended, and subsection (2) of that section is 24 republished, to read: 25 316.193Driving under the influence; penalties. 26 (1)(a)A person commits is guilty of the offense of driving 27 under the influence and is subject to punishment as provided in 28 subsection (2) if the person is driving or in actual physical 29 control of a vehicle within this state and: 30 1.(a)The person is under the influence of alcoholic 31 beverages, any chemical substance set forth in s. 877.111, or 32 any substance controlled under chapter 893, or any other 33 impairing substance, or any combination thereof, when affected 34 to the extent that the persons normal faculties are impaired; 35 2.(b)The person has a blood-alcohol level of 0.08 or more 36 grams of alcohol per 100 milliliters of blood; or 37 3.(c)The person has a breath-alcohol level of 0.08 or more 38 grams of alcohol per 210 liters of breath; or 39 4.The person has in his or her blood any amount of a 40 chemical substance set forth in s. 877.111 or a substance 41 controlled under chapter 893, or such chemical or controlled 42 substance in any combination with alcohol as a result of 43 consuming alcohol before or during driving. 44 (b)It is an affirmative defense as to the presence of a 45 chemical or controlled substance under subparagraph (a)4. that 46 the person ingested, injected, or inhaled the substance in 47 accordance with a valid prescription issued pursuant to s. 48 893.04 by a practitioner as defined in s. 893.02, or pursuant to 49 s. 381.986, and in accordance with the practitioners 50 directions. However, the fact that a person is or was legally 51 entitled to consume alcohol or any other chemical or controlled 52 substance, medication, drug, or other impairing substance is not 53 an affirmative defense to this section. 54 (2)(a)Except as provided in paragraph (b), subsection (3), 55 or subsection (4), any person who is convicted of a violation of 56 subsection (1) shall be punished: 57 1.By a fine of: 58 a.Not less than $500 or more than $1,000 for a first 59 conviction. 60 b.Not less than $1,000 or more than $2,000 for a second 61 conviction; and 62 2.By imprisonment for: 63 a.Not more than 6 months for a first conviction. 64 b.Not more than 9 months for a second conviction. 65 3.For a second conviction, by mandatory placement for a 66 period of at least 1 year, at the convicted persons sole 67 expense, of an ignition interlock device approved by the 68 department in accordance with s. 316.1938 upon all vehicles that 69 are individually or jointly leased or owned and routinely 70 operated by the convicted person, when the convicted person 71 qualifies for a permanent or restricted license. 72 73 The portion of a fine imposed in excess of $500 pursuant to sub 74 subparagraph 1.a. and the portion of a fine imposed in excess of 75 $1,000 pursuant to sub-subparagraph 1.b., shall be remitted by 76 the clerk to the Department of Revenue for deposit into the 77 General Revenue Fund. 78 (b)1.Any person who is convicted of a third violation of 79 this section for an offense that occurs within 10 years after a 80 prior conviction for a violation of this section commits a 81 felony of the third degree, punishable as provided in s. 82 775.082, s. 775.083, or s. 775.084. In addition, the court shall 83 order the mandatory placement for a period of not less than 2 84 years, at the convicted persons sole expense, of an ignition 85 interlock device approved by the department in accordance with 86 s. 316.1938 upon all vehicles that are individually or jointly 87 leased or owned and routinely operated by the convicted person, 88 when the convicted person qualifies for a permanent or 89 restricted license. 90 2.Any person who is convicted of a third violation of this 91 section for an offense that occurs more than 10 years after the 92 date of a prior conviction for a violation of this section shall 93 be punished by a fine of not less than $2,000 or more than 94 $5,000 and by imprisonment for not more than 12 months. The 95 portion of a fine imposed in excess of $2,500 pursuant to this 96 subparagraph shall be remitted by the clerk to the Department of 97 Revenue for deposit into the General Revenue Fund. In addition, 98 the court shall order the mandatory placement for a period of at 99 least 2 years, at the convicted persons sole expense, of an 100 ignition interlock device approved by the department in 101 accordance with s. 316.1938 upon all vehicles that are 102 individually or jointly leased or owned and routinely operated 103 by the convicted person, when the convicted person qualifies for 104 a permanent or restricted license. 105 3.Any person who is convicted of a fourth or subsequent 106 violation of this section, regardless of when any prior 107 conviction for a violation of this section occurred, commits a 108 felony of the third degree, punishable as provided in s. 109 775.082, s. 775.083, or s. 775.084. However, the fine imposed 110 for such fourth or subsequent violation may be not less than 111 $2,000. The portion of a fine imposed in excess of $1,000 112 pursuant to this subparagraph shall be remitted by the clerk to 113 the Department of Revenue for deposit into the General Revenue 114 Fund. 115 (c)In addition to the penalties in paragraph (a), the 116 court may order placement, at the convicted persons sole 117 expense, of an ignition interlock device approved by the 118 department in accordance with s. 316.1938 for at least 6 119 continuous months upon all vehicles that are individually or 120 jointly leased or owned and routinely operated by the convicted 121 person if, at the time of the offense, the person had a blood 122 alcohol level or breath-alcohol level of .08 or higher. 123 (9)A person who is arrested for a violation of this 124 section may not be released from custody: 125 (a)Until the person is no longer under the influence of 126 alcoholic beverages, any chemical substance set forth in s. 127 877.111, or any substance controlled under chapter 893, or any 128 other impairing substance, or any combination thereof, and 129 affected to the extent that his or her normal faculties are 130 impaired; 131 (b)Until the persons blood-alcohol level or breath 132 alcohol level is less than 0.05; or 133 (c)Until 8 hours have elapsed from the time the person was 134 arrested. 135 (14)As used in this chapter, the term: 136 (c)Impairing substance means any substance that, when 137 taken into the human body, can impair, or diminish in some 138 material respect, a persons normal faculties. Such normal 139 faculties include, but are not limited to, the ability to see, 140 hear, walk, talk, judge distances, drive a motor vehicle, make 141 judgments, act in emergencies, and, in general, normally perform 142 the many mental and physical acts of daily life. 143 Section 2.Subsections (1) and (8) of section 327.35, 144 Florida Statutes, are amended, subsection (11) is added to that 145 section, and subsection (2) of that section is republished, to 146 read: 147 327.35Boating under the influence; penalties; designated 148 drivers. 149 (1)(a)A person commits is guilty of the offense of boating 150 under the influence and is subject to punishment as provided in 151 subsection (2) if the person is operating a vessel within this 152 state and: 153 1.(a)The person is under the influence of alcoholic 154 beverages, any chemical substance set forth in s. 877.111, or 155 any substance controlled under chapter 893, or any other 156 impairing substance, or any combination thereof, when affected 157 to the extent that the persons normal faculties are impaired; 158 2.(b)The person has a blood-alcohol level of 0.08 or more 159 grams of alcohol per 100 milliliters of blood; or 160 3.(c)The person has a breath-alcohol level of 0.08 or more 161 grams of alcohol per 210 liters of breath; or 162 4.The person has in his or her blood any amount of a 163 chemical substance set forth in s. 877.111 or a substance 164 controlled under chapter 893, or such chemical or controlled 165 substance in any combination with alcohol as a result of 166 consuming alcohol before or during operating. 167 (b)It is an affirmative defense as to the presence of a 168 chemical or controlled substance under subparagraph (a)4. that 169 the person ingested, injected, or inhaled the substance in 170 accordance with a valid prescription issued pursuant to s. 171 893.04 by a practitioner as defined in s. 893.02, or pursuant to 172 s. 381.986, and in accordance with the practitioners 173 directions. However, the fact that a person is or was legally 174 entitled to consume alcohol or any other chemical or controlled 175 substance, medication, drug, or other impairing substance is not 176 an affirmative defense to this section. 177 (2)(a)Except as provided in paragraph (b), subsection (3), 178 or subsection (4), any person who is convicted of a violation of 179 subsection (1) shall be punished: 180 1.By a fine of: 181 a.Not less than $500 or more than $1,000 for a first 182 conviction. 183 b.Not less than $1,000 or more than $2,000 for a second 184 conviction; and 185 2.By imprisonment for: 186 a.Not more than 6 months for a first conviction. 187 b.Not more than 9 months for a second conviction. 188 189 The portion of a fine imposed in excess of $500 pursuant to sub 190 subparagraph 1.a. and the portion of a fine imposed in excess of 191 $1,000 pursuant to sub-subparagraph 1.b., shall be remitted by 192 the clerk to the Department of Revenue for deposit into the 193 General Revenue Fund. 194 (b)1.Any person who is convicted of a third violation of 195 this section for an offense that occurs within 10 years after a 196 prior conviction for a violation of this section commits a 197 felony of the third degree, punishable as provided in s. 198 775.082, s. 775.083, or s. 775.084. 199 2.Any person who is convicted of a third violation of this 200 section for an offense that occurs more than 10 years after the 201 date of a prior conviction for a violation of this section shall 202 be punished by a fine of not less than $2,000 or more than 203 $5,000 and by imprisonment for not more than 12 months. The 204 portion of a fine imposed in excess of $2,500 pursuant to this 205 subparagraph shall be remitted by the clerk to the Department of 206 Revenue for deposit into the General Revenue Fund. 207 3.Any person who is convicted of a fourth or subsequent 208 violation of this section, regardless of when any prior 209 conviction for a violation of this section occurred, commits a 210 felony of the third degree, punishable as provided in s. 211 775.082, s. 775.083, or s. 775.084. 212 213 However, the fine imposed for such fourth or subsequent 214 violation may not be less than $2,000. The portion of such fine 215 imposed in excess of $1,000 shall be remitted by the clerk to 216 the Department of Revenue for deposit into the General Revenue 217 Fund. 218 (8)A person who is arrested for a violation of this 219 section may not be released from custody: 220 (a)Until the person is no longer under the influence of 221 alcoholic beverages, any chemical substance set forth in s. 222 877.111, or any substance controlled under chapter 893, or any 223 other impairing substance, or any combination thereof, and 224 affected to the extent that his or her normal faculties are 225 impaired; 226 (b)Until the persons blood-alcohol level or breath 227 alcohol level is less than 0.05; or 228 (c)Until 8 hours have elapsed from the time the person was 229 arrested. 230 (11)As used in this section, the term impairing 231 substance means any substance that, when taken into the human 232 body, can impair, or diminish in some material respect, a 233 persons normal faculties. Such normal faculties include, but 234 are not limited to, the ability to see, hear, walk, talk, judge 235 distances, operate a vessel, make judgments, act in emergencies, 236 and, in general, normally perform the many mental and physical 237 acts of daily life. 238 Section 3.Section 933.02, Florida Statutes, is amended to 239 read: 240 933.02Grounds for issuance of search warrant.Upon proper 241 affidavits being made, a search warrant may be issued under the 242 provisions of this chapter upon any of the following grounds: 243 (1)When the property shall have been stolen or embezzled 244 in violation of law; 245 (2)When any property shall have been used: 246 (a)As a means to commit any crime; 247 (b)In connection with gambling, gambling implements and 248 appliances; or 249 (c)In violation of s. 847.011 or other laws in reference 250 to obscene prints and literature; 251 (3)When any property constitutes evidence relevant to 252 proving that a felony has been committed; 253 (4)When any property is being held or possessed: 254 (a)In violation of any of the laws prohibiting the 255 manufacture, sale, and transportation of intoxicating liquors; 256 (b)In violation of the fish and game laws; 257 (c)In violation of the laws relative to food and drug; or 258 (d)In violation of the laws relative to citrus disease 259 pursuant to s. 581.184; or 260 (5)When the laws in relation to cruelty to animals, as 261 provided in chapter 828, have been or are violated in any 262 particular building or place; or 263 (6)When a sample of the blood of a person constitutes 264 evidence relevant to proving that a violation of s. 316.193 or 265 s. 327.35 has been committed. 266 267 This section also applies to any papers or documents used as a 268 means of or in aid of the commission of any offense against the 269 laws of the state. 270 Section 4.Paragraph (f) of subsection (1) of section 271 316.1932, Florida Statutes, is amended to read: 272 316.1932Tests for alcohol, chemical substances, or 273 controlled substances; implied consent; refusal. 274 (1) 275 (f)1.The tests determining the weight of alcohol in the 276 defendants blood or breath shall be administered at the request 277 of a law enforcement officer substantially in accordance with 278 rules of the Department of Law Enforcement. Such rules must 279 specify precisely the test or tests that are approved by the 280 Department of Law Enforcement for reliability of result and ease 281 of administration, and must provide an approved method of 282 administration which must be followed in all such tests given 283 under this section. However, the failure of a law enforcement 284 officer to request the withdrawal of blood does not affect the 285 admissibility of a test of blood withdrawn for medical purposes. 286 2.a.Only a physician, certified paramedic, registered 287 nurse, licensed practical nurse, other personnel authorized by a 288 hospital to draw blood, or duly licensed clinical laboratory 289 director, supervisor, technologist, or technician, acting at the 290 request of a law enforcement officer, may withdraw blood for the 291 purpose of determining its alcoholic content or the presence of 292 chemical substances or controlled substances therein. However, 293 the failure of a law enforcement officer to request the 294 withdrawal of blood does not affect the admissibility of a test 295 of blood withdrawn for medical purposes. 296 b.Notwithstanding any provision of law pertaining to the 297 confidentiality of hospital records or other medical records, if 298 a health care provider, who is providing medical care in a 299 health care facility to a person injured in a motor vehicle 300 crash, becomes aware, as a result of any blood test performed in 301 the course of that medical treatment, that the persons blood 302 alcohol level meets or exceeds the blood-alcohol level specified 303 in s. 316.193(1)(a)2. s. 316.193(1)(b), the health care provider 304 may notify any law enforcement officer or law enforcement 305 agency. Any such notice must be given within a reasonable time 306 after the health care provider receives the test result. Any 307 such notice shall be used only for the purpose of providing the 308 law enforcement officer with reasonable cause to request the 309 withdrawal of a blood sample pursuant to this section. 310 c.The notice must shall consist only of the name of the 311 person being treated, the name of the person who drew the blood, 312 the blood-alcohol level indicated by the test, and the date and 313 time of the administration of the test. 314 d.Nothing contained in s. 395.3025(4), s. 456.057, or any 315 applicable practice act affects the authority to provide notice 316 under this section, and the health care provider is not 317 considered to have breached any duty owed to the person under s. 318 395.3025(4), s. 456.057, or any applicable practice act by 319 providing notice or failing to provide notice. It is not shall 320 not be a breach of any ethical, moral, or legal duty for a 321 health care provider to provide notice or fail to provide 322 notice. 323 e.A civil, criminal, or administrative action may not be 324 brought against any person or health care provider participating 325 in good faith in the provision of notice or failure to provide 326 notice as provided in this section. Any person or health care 327 provider participating in the provision of notice or failure to 328 provide notice as provided in this section shall be immune from 329 any civil or criminal liability and from any professional 330 disciplinary action with respect to the provision of notice or 331 failure to provide notice under this section. Any such 332 participant has the same immunity with respect to participating 333 in any judicial proceedings resulting from the notice or failure 334 to provide notice. 335 3.The person tested may, at his or her own expense, have a 336 physician, registered nurse, other personnel authorized by a 337 hospital to draw blood, or duly licensed clinical laboratory 338 director, supervisor, technologist, or technician, or other 339 person of his or her own choosing administer an independent test 340 in addition to the test administered at the direction of the law 341 enforcement officer for the purpose of determining the amount of 342 alcohol in the persons blood or breath or the presence of 343 chemical substances or controlled substances at the time 344 alleged, as shown by chemical analysis of his or her blood or 345 urine, or by chemical or physical test of his or her breath. The 346 failure or inability to obtain an independent test by a person 347 does not preclude the admissibility in evidence of the test 348 taken at the direction of the law enforcement officer. The law 349 enforcement officer shall not interfere with the persons 350 opportunity to obtain the independent test and shall provide the 351 person with timely telephone access to secure the test, but the 352 burden is on the person to arrange and secure the test at the 353 persons own expense. 354 4.Upon the request of the person tested, full information 355 concerning the results of the test taken at the direction of the 356 law enforcement officer shall be made available to the person or 357 his or her attorney. Full information is limited to the 358 following: 359 a.The type of test administered and the procedures 360 followed. 361 b.The time of the collection of the blood or breath sample 362 analyzed. 363 c.The numerical results of the test indicating the alcohol 364 content of the blood and breath. 365 d.The type and status of any permit issued by the 366 Department of Law Enforcement which was held by the person who 367 performed the test. 368 e.If the test was administered by means of a breath 369 testing instrument, the date of performance of the most recent 370 required inspection of such instrument. 371 372 Full information does not include manuals, schematics, or 373 software of the instrument used to test the person or any other 374 material that is not in the actual possession of the state. 375 Additionally, full information does not include information in 376 the possession of the manufacturer of the test instrument. 377 5.A hospital, clinical laboratory, medical clinic, or 378 similar medical institution or physician, certified paramedic, 379 registered nurse, licensed practical nurse, other personnel 380 authorized by a hospital to draw blood, or duly licensed 381 clinical laboratory director, supervisor, technologist, or 382 technician, or other person assisting a law enforcement officer 383 does not incur any civil or criminal liability as a result of 384 the withdrawal or analysis of a blood or urine specimen, or the 385 chemical or physical test of a persons breath pursuant to 386 accepted medical standards when requested by a law enforcement 387 officer, regardless of whether or not the subject resisted 388 administration of the test. 389 Section 5.Paragraph (a) of subsection (2) of section 390 316.1933, Florida Statutes, is amended to read: 391 316.1933Blood test for impairment or intoxication in cases 392 of death or serious bodily injury; right to use reasonable 393 force. 394 (2)(a)Only a physician, certified paramedic, registered 395 nurse, licensed practical nurse, other personnel authorized by a 396 hospital to draw blood, or duly licensed clinical laboratory 397 director, supervisor, technologist, or technician, acting at the 398 request of a law enforcement officer, may withdraw blood for the 399 purpose of determining the alcoholic content thereof or the 400 presence of chemical substances or controlled substances 401 therein. However, the failure of a law enforcement officer to 402 request the withdrawal of blood does not shall not affect the 403 admissibility of a test of blood withdrawn for medical purposes. 404 1.Notwithstanding any provision of law pertaining to the 405 confidentiality of hospital records or other medical records, if 406 a health care provider, who is providing medical care in a 407 health care facility to a person injured in a motor vehicle 408 crash, becomes aware, as a result of any blood test performed in 409 the course of that medical treatment, that the persons blood 410 alcohol level meets or exceeds the blood-alcohol level specified 411 in s. 316.193(1)(a)2. s. 316.193(1)(b), the health care provider 412 may notify any law enforcement officer or law enforcement 413 agency. Any such notice must be given within a reasonable time 414 after the health care provider receives the test result. Any 415 such notice shall be used only for the purpose of providing the 416 law enforcement officer with reasonable cause to request the 417 withdrawal of a blood sample pursuant to this section. 418 2.The notice must shall consist only of the name of the 419 person being treated, the name of the person who drew the blood, 420 the blood-alcohol level indicated by the test, and the date and 421 time of the administration of the test. 422 3.Nothing contained in s. 395.3025(4), s. 456.057, or any 423 applicable practice act affects the authority to provide notice 424 under this section, and the health care provider is not 425 considered to have breached any duty owed to the person under s. 426 395.3025(4), s. 456.057, or any applicable practice act by 427 providing notice or failing to provide notice. It is not shall 428 not be a breach of any ethical, moral, or legal duty for a 429 health care provider to provide notice or fail to provide 430 notice. 431 4.A civil, criminal, or administrative action may not be 432 brought against any person or health care provider participating 433 in good faith in the provision of notice or failure to provide 434 notice as provided in this section. Any person or health care 435 provider participating in the provision of notice or failure to 436 provide notice as provided in this section shall be immune from 437 any civil or criminal liability and from any professional 438 disciplinary action with respect to the provision of notice or 439 failure to provide notice under this section. Any such 440 participant has the same immunity with respect to participating 441 in any judicial proceedings resulting from the notice or failure 442 to provide notice. 443 Section 6.This act shall take effect October 1, 2023.