House Bill 1809

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    Florida House of Representatives - 2000                HB 1809

        By Representative Merchant






  1                      A bill to be entitled

  2         An act relating to suspension of driver's

  3         licenses; amending s. 316.1937, F.S.; requiring

  4         the use of an ignition interlock device for a

  5         certain time period for persons convicted of a

  6         second or subsequent time for driving under the

  7         influence; providing for a license suspension

  8         under certain circumstances; amending s.

  9         322.2616, F.S.; clarifying the blood-alcohol

10         and breath-alcohol levels that are unlawful;

11         prescribing a waiting period before a temporary

12         driving permit becomes effective; authorizing

13         the use of blood tests obtained pursuant to

14         other investigations for purposes of license

15         suspension under s. 322.2616, F.S.; prescribing

16         law enforcement officers' immunity from civil

17         liability; providing an effective date.

18

19  Be It Enacted by the Legislature of the State of Florida:

20

21         Section 1.  Subsection (1) of section 316.1937, Florida

22  Statutes, is amended to read:

23         316.1937  Ignition interlock devices, requiring;

24  unlawful acts.--

25         (1)(a)  In addition to any other authorized penalties,

26  the court may require that any person who is convicted of

27  driving under the influence in violation of s. 316.193, and

28  who is granted probation, shall not operate a motor vehicle

29  during the period of probation unless that vehicle is equipped

30  with a functioning ignition interlock device certified by the

31  department as provided in s. 316.1938, and installed in such a

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  1  manner that the vehicle will not start if the operator's blood

  2  alcohol level is in excess of 0.05 percent or as otherwise

  3  specified by the court. The court may require the use of an

  4  approved ignition interlock device for the period of

  5  probation, said period to be for not less than 6 months, if

  6  the person is permitted to operate a motor vehicle, whether

  7  the privilege to operate a motor vehicle is restricted or not,

  8  as determined by the court.

  9         (b)  In addition to any other authorized penalties, the

10  court shall require that any person who is convicted for a

11  second or subsequent violation of driving under the influence

12  in violation of s. 316.193 shall not operate a motor vehicle

13  for a period of not less than 1 year unless the vehicle is

14  equipped with a functioning ignition interlock device

15  certified by the department as provided in s. 316.1938 and

16  installed in such a manner that the vehicle will not start if

17  the operator's blood alcohol level is in excess of 0.05

18  percent or otherwise as specified by the court. The court

19  shall provide that if the person who is so convicted of a

20  second or subsequent violation for driving under the influence

21  tampers with the ignition interlock device or, except as

22  provided in subsection (7), drives a motor vehicle without

23  such device in violation of the order of the court, such

24  person shall, in addition to any other authorized penalty,

25  have his or her driver's license suspended for a minimum term

26  of 1 year.

27         Section 2.  Section 322.2616, Florida Statutes, is

28  amended to read:

29         322.2616  Suspension of license; persons under 21 years

30  of age; right to review.--

31

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  1         (1)(a)  Notwithstanding s. 316.193, it is unlawful for

  2  a person under the age of 21 who has a blood-alcohol or

  3  breath-alcohol level of 0.02 percent or higher to drive or be

  4  in actual physical control of a motor vehicle.

  5         (b)  A law enforcement officer who has probable cause

  6  to believe that a motor vehicle is being driven by or is in

  7  the actual physical control of a person who is under the age

  8  of 21 while under the influence of alcoholic beverages or who

  9  has any blood-alcohol or breath-alcohol level may lawfully

10  detain such a person and may request that person to submit to

11  a test to determine his or her breath-alcohol level.

12         (2)(a)  A law enforcement officer or correctional

13  officer shall, on behalf of the department, suspend the

14  driving privilege of such person if the person has a

15  blood-alcohol or breath-alcohol level of 0.02 percent or

16  higher. The officer shall also suspend, on behalf of the

17  department, the driving privilege of a person who has refused

18  to submit to a test as provided by paragraph (b). The officer

19  shall take the person's driver's license and issue the person

20  a 10-day temporary driving permit if the person is otherwise

21  eligible for the driving privilege and shall issue the person

22  a notice of suspension.

23         (b)  The suspension under paragraph (a) must be

24  pursuant to, and the notice of suspension must inform the

25  driver of, the following:

26         1.a.  The driver refused to submit to a lawful breath

27  test and his or her driving privilege is suspended for a

28  period of 1 year for a first refusal or for a period of 18

29  months if his or her driving privilege has been previously

30  suspended as provided in this section as a result of a refusal

31  to submit to a test; or

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  1         b.  The driver was under the age of 21 and was driving

  2  or in actual physical control of a motor vehicle while having

  3  a blood-alcohol or breath-alcohol level of 0.02 percent or

  4  higher; and the person's driving privilege is suspended for a

  5  period of 6 months for a first violation, or for a period of 1

  6  year if his or her driving privilege has been previously

  7  suspended as provided in this section for driving or being in

  8  actual physical control of a motor vehicle with a

  9  blood-alcohol or breath-alcohol level of 0.02 percent or

10  higher.

11         2.  The suspension period commences on the date of

12  issuance of the notice of suspension.

13         3.  The driver may request a formal or informal review

14  of the suspension by the department within 10 days after the

15  issuance of the notice of suspension.

16         4.  A temporary permit issued at the time of the

17  issuance of the notice of suspension shall not become

18  effective until after 12 hours have elapsed and will expire at

19  midnight of the 10th day following the date of issuance.

20         5.  The driver may submit to the department any

21  materials relevant to the suspension of his or her license.

22         (3)  The law enforcement officer shall forward to the

23  department, within 5 days after the date of the issuance of

24  the notice of suspension, a copy of the notice of suspension,

25  the driver's license of the person receiving the notice of

26  suspension, and an affidavit stating the officer's grounds for

27  belief that the person was under the age of 21 and was driving

28  or in actual physical control of a motor vehicle with any

29  blood-alcohol or breath-alcohol level, and the results of any

30  blood or breath test or an affidavit stating that a blood or

31  breath test was requested by a law enforcement officer or

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  1  correctional officer and that the person refused to submit to

  2  such test. The failure of the officer to submit materials

  3  within the 5-day period specified in this subsection does not

  4  bar the department from considering any materials submitted at

  5  or before the hearing.

  6         (4)  If the department finds that the license of the

  7  person should be suspended under this section and if the

  8  notice of suspension has not already been served upon the

  9  person by a law enforcement officer or correctional officer as

10  provided in subsection (2), the department shall issue a

11  notice of suspension and, unless the notice is mailed under s.

12  322.251, a temporary driving permit that expires 10 days after

13  the date of issuance if the driver is otherwise eligible.

14         (5)  If the person whose license is suspended requests

15  an informal review under subparagraph (2)(b)3., the department

16  shall conduct the informal review by a hearing officer

17  employed by the department within 30 days after the request is

18  received by the department and shall issue such person a

19  temporary driving permit for business purposes only to expire

20  on the date that such review is scheduled to be conducted if

21  the person is otherwise eligible. The informal review hearing

22  must consist solely of an examination by the department of the

23  materials submitted by a law enforcement officer or

24  correctional officer and by the person whose license is

25  suspended, and the presence of an officer or witness is not

26  required.

27         (6)  After completion of the informal review, notice of

28  the department's decision sustaining, amending, or

29  invalidating the suspension of the driver's license must be

30  provided to the person. The notice must be mailed to the

31  person at the last known address shown on the department's

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  1  records, or to the address provided in the law enforcement

  2  officer's report if such address differs from the address of

  3  record, within 7 days after completing the review.

  4         (7)(a)  If the person whose license is suspended

  5  requests a formal review, the department must schedule a

  6  hearing to be held within 30 days after the request is

  7  received by the department and must notify the person of the

  8  date, time, and place of the hearing and shall issue such

  9  person a temporary driving permit for business purposes only

10  to expire on the date that such review is scheduled to be

11  conducted if the person is otherwise eligible.

12         (b)  The formal review hearing must be held before a

13  hearing officer employed by the department, and the hearing

14  officer may administer oaths, examine witnesses and take

15  testimony, receive relevant evidence, issue subpoenas,

16  regulate the course and conduct of the hearing, and make a

17  ruling on the suspension.  The department and the person whose

18  license was suspended may subpoena witnesses, and the party

19  requesting the presence of a witness is responsible for paying

20  any witness fees and for notifying in writing the state

21  attorney's office in the appropriate circuit of the issuance

22  of the subpoena. If the person who requests a formal review

23  hearing fails to appear and the hearing officer finds the

24  failure to be without just cause, the right to a formal

25  hearing is waived and the suspension is sustained.

26         (c)  A party may seek enforcement of a subpoena under

27  paragraph (b) by filing a petition for enforcement in the

28  circuit court of the judicial circuit in which the person

29  failing to comply with the subpoena resides.  A failure to

30  comply with an order of the court constitutes contempt of

31

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  1  court. However, a person may not be held in contempt while a

  2  subpoena is being challenged.

  3         (d)  The department must, within 7 days after a formal

  4  review hearing, send notice to the person of the hearing

  5  officer's decision as to whether sufficient cause exists to

  6  sustain, amend, or invalidate the suspension.

  7         (8)  In a formal review hearing under subsection (7) or

  8  an informal review hearing under subsection (5), the hearing

  9  officer shall determine by a preponderance of the evidence

10  whether sufficient cause exists to sustain, amend, or

11  invalidate the suspension.  The scope of the review is limited

12  to the following issues:

13         (a)  If the license was suspended because the

14  individual, then under the age of 21, drove with a

15  blood-alcohol or breath-alcohol level of 0.02 percent or

16  higher:

17         1.  Whether the law enforcement officer had probable

18  cause to believe that the person was under the age of 21 and

19  was driving or in actual physical control of a motor vehicle

20  in this state with any blood-alcohol or breath-alcohol level

21  or while under the influence of alcoholic beverages.

22         2.  Whether the person was under the age of 21.

23         3.  Whether the person had a blood-alcohol or

24  breath-alcohol level of 0.02 percent or higher.

25         (b)  If the license was suspended because of the

26  individual's refusal to submit to a breath test:

27         1.  Whether the law enforcement officer had probable

28  cause to believe that the person was under the age of 21 and

29  was driving or in actual physical control of a motor vehicle

30  in this state with any blood-alcohol or breath-alcohol level

31  or while under the influence of alcoholic beverages.

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  1         2.  Whether the person was under the age of 21.

  2         3.  Whether the person refused to submit to a breath

  3  test after being requested to do so by a law enforcement

  4  officer or correctional officer.

  5         4.  Whether the person was told that if he or she

  6  refused to submit to a breath test his or her privilege to

  7  operate a motor vehicle would be suspended for a period of 1

  8  year or, in the case of a second or subsequent refusal, for a

  9  period of 18 months.

10         (9)  Based on the determination of the hearing officer

11  under subsection (8) for both informal hearings under

12  subsection (5) and formal hearings under subsection (7), the

13  department shall:

14         (a)  Sustain the suspension of the person's driving

15  privilege for a period of 1 year for a first refusal, or for a

16  period of 18 months if the driving privilege of the person has

17  been previously suspended, as provided in this section, as a

18  result of a refusal to submit to a test.  The suspension

19  period commences on the date of the issuance of the notice of

20  suspension.

21         (b)  Sustain the suspension of the person's driving

22  privilege for a period of 6 months for driving or being in

23  actual physical control of a motor vehicle while under the age

24  of 21 with a blood-alcohol or breath-alcohol level of 0.02

25  percent or higher, or for a period of 1 year if the driving

26  privilege of such person has been previously suspended under

27  this section as a result of driving a motor vehicle while

28  under the age of 21 with a breath-alcohol level of at least

29  0.02 percent but less than 0.08 percent. The suspension period

30  commences on the date of the issuance of the notice of

31  suspension.

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  1         (10)  A request for a formal review hearing or an

  2  informal review hearing shall not stay the suspension of the

  3  person's driver's license.  If the department fails to

  4  schedule the formal review hearing to be held within 30 days

  5  after receipt of the request therefor, the department shall

  6  invalidate the suspension. If the scheduled hearing is

  7  continued at the department's initiative, the department shall

  8  issue a temporary driving permit that is valid until the

  9  hearing is conducted if the person is otherwise eligible for

10  the driving privilege.  The permit shall not be issued to a

11  person who requested a continuance of the hearing. The permit

12  issued under this subsection authorizes driving for business

13  or employment use only.

14         (11)  A person whose driver's license is suspended

15  under subsection (2) or subsection (4) may apply for issuance

16  of a license for business or employment purposes only,

17  pursuant to s. 322.271, if the person is otherwise eligible

18  for the driving privilege. However, such a license may not be

19  issued until 30 days have elapsed after the expiration of the

20  last temporary driving permit issued under this section.

21         (12)  The formal review hearing may be conducted upon a

22  review of the reports of a law enforcement officer or

23  correctional officer, including documents relating to the

24  administration of a breath test or the refusal to take a test.

25  However, as provided in subsection (7), the driver may

26  subpoena the officer or any person who administered a breath

27  test.

28         (13)  The formal review hearing and the informal review

29  hearing are exempt from chapter 120.  The department may adopt

30  rules for conducting reviews under this section.

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  1         (14)  A person may appeal any decision of the

  2  department sustaining a suspension of his or her driver's

  3  license by a petition for writ of certiorari to the circuit

  4  court in the county wherein such person resides or wherein a

  5  formal or informal review was conducted under s. 322.31.

  6  However, an appeal does not stay the suspension. This

  7  subsection does not provide for a de novo appeal.

  8         (15)  The decision of the department under this section

  9  shall not be considered in any trial for a violation of s.

10  316.193, nor shall any written statement submitted by a person

11  in his or her request for departmental review under this

12  section be admissible into evidence against him or her in any

13  such trial. The disposition of any related criminal

14  proceedings shall not affect a suspension imposed under this

15  section.

16         (16)  By applying for and accepting and using a

17  driver's license, a person under the age of 21 years who holds

18  the driver's license is deemed to have expressed his or her

19  consent to the provisions of this section.

20         (17)  A breath test to determine breath-alcohol level

21  pursuant to this section may be conducted as authorized by s.

22  316.1932 or by a breath-alcohol preliminary alcohol screening

23  test device listed in the United States Department of

24  Transportation's conforming-product list of evidential

25  breath-measurement devices. The reading from such a device is

26  presumed accurate and is admissible in evidence in any

27  administrative hearing conducted under this section.

28         (18)  The result of a blood test obtained during an

29  investigation conducted under s. 316.1932 or s. 316.1933 may

30  be used to suspend the driving privilege of a person under

31  this section.

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  1         (19)  A law enforcement officer who acts in good faith

  2  and exercises due care in enforcing this section is immune

  3  from civil liability that otherwise might result by reason of

  4  his or her action.

  5         (20)(18)  A violation of this section is neither a

  6  traffic infraction nor a criminal offense, nor does being

  7  detained pursuant to this section constitute an arrest.  A

  8  violation of this section is subject to the administrative

  9  action provisions of this section, which are administered by

10  the department through its administrative processes.

11  Administrative actions taken pursuant to this section shall be

12  recorded in the motor vehicle records maintained by the

13  department.  This section does not bar prosecution under s.

14  316.193. However, if the department suspends a person's

15  license under s. 322.2615 for a violation of s. 316.193, it

16  may not also suspend the person's license under this section

17  for the same episode that was the basis for the suspension

18  under s. 322.2615.

19         Section 3.  This act shall take effect July 1, 2000.

20

21            *****************************************

22                          HOUSE SUMMARY

23
      Provides that the court shall require the use of an
24    ignition interlock device in the motor vehicle of a
      person convicted of a second or subsequent conviction for
25    driving under the influence for a period of 1 year.
      Provides for a minimum driver license suspension of 1
26    year for tampering with the device or driving without
      such device as required by the court. Clarifies the
27    blood-alcohol levels and breath-alcohol levels that are
      unlawful for purposes of suspending the driver's license
28    of a person under age 21. Provides that a temporary
      driving permit issued at the time of a notice of
29    suspension does not become effective until 12 hours have
      elapsed. Provides that the results of a blood test
30    conducted pursuant to s. 316.1932 or s. 316.1933, F.S.,
      may be used to suspend a driving privilege under s.
31    322.2616, F.S. Immunizes law enforcement officers who
      exercise due care from civil liability.
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