HB 187

1
A bill to be entitled
2An act relating to lawful testing for alcohol, chemical
3substances, or controlled substances; amending s.
4316.1932, F.S.; revising provisions to notify a person
5that refusal to submit to a lawful test of the person's
6breath, urine, or blood is a misdemeanor, to conform to
7changes made by the act; revising language relating to
8presumption of consent to submit to a blood test; removing
9reference to treatment at a medical facility; amending s.
10316.1933, F.S.; directing a law enforcement officer to
11require a person driving or in actual physical control of
12the motor vehicle to submit to a blood test for the
13purpose of determining alcoholic content of the blood or
14the presence of specified chemical or controlled
15substances if that person has refused or failed to submit
16to a lawful urine test; amending s. 316.1939, F.S.;
17removing prior suspension as a condition for the
18commission of a misdemeanor by refusal to submit to a
19lawful test of breath, urine, or blood; amending s.
20327.352, F.S.; revising provisions to notify a person that
21refusal to submit to a lawful test of the person's breath,
22urine, or blood is a misdemeanor, to conform to changes
23made by the act; revising language relating to presumption
24of consent to submit to a blood test; removing reference
25to treatment at a medical facility; amending s. 327.353,
26F.S.; directing a law enforcement officer to require a
27person operating or in actual physical control of the
28vessel to submit to a blood test for the purpose of
29determining alcoholic content of the blood or the presence
30of specified chemical or controlled substances if that
31person has refused or failed to submit to a lawful urine
32test; amending s. 327.359, F.S.; removing prior suspension
33as a condition for the commission of a misdemeanor by
34refusal to submit to a lawful test of breath, urine, or
35blood; providing an effective date.
36
37Be It Enacted by the Legislature of the State of Florida:
38
39     Section 1.  Paragraphs (a) and (c) of subsection (1) of
40section 316.1932, Florida Statutes, are amended to read:
41     316.1932  Tests for alcohol, chemical substances, or
42controlled substances; implied consent; refusal.--
43     (1)(a)1.a.  Any person who accepts the privilege extended
44by the laws of this state of operating a motor vehicle within
45this state is, by so operating such vehicle, deemed to have
46given his or her consent to submit to an approved chemical test
47or physical test including, but not limited to, an infrared
48light test of his or her breath for the purpose of determining
49the alcoholic content of his or her blood or breath if the
50person is lawfully arrested for any offense allegedly committed
51while the person was driving or was in actual physical control
52of a motor vehicle while under the influence of alcoholic
53beverages. The chemical or physical breath test must be
54incidental to a lawful arrest and administered at the request of
55a law enforcement officer who has reasonable cause to believe
56such person was driving or was in actual physical control of the
57motor vehicle within this state while under the influence of
58alcoholic beverages. The administration of a breath test does
59not preclude the administration of another type of test. The
60person shall be told that his or her failure to submit to any
61lawful test of his or her breath will result in the suspension
62of the person's privilege to operate a motor vehicle for a
63period of 1 year for a first refusal, or for a period of 18
64months if the driving privilege of such person has been
65previously suspended as a result of a refusal to submit to such
66a test or tests, and shall also be told that if he or she
67refuses to submit to a lawful test of his or her breath and his
68or her driving privilege has been previously suspended for a
69prior refusal to submit to a lawful test of his or her breath,
70urine, or blood, he or she commits a misdemeanor in addition to
71any other penalties. The refusal to submit to a chemical or
72physical breath test upon the request of a law enforcement
73officer as provided in this section is admissible into evidence
74in any criminal proceeding.
75     b.  Any person who accepts the privilege extended by the
76laws of this state of operating a motor vehicle within this
77state is, by so operating such vehicle, deemed to have given his
78or her consent to submit to a urine test for the purpose of
79detecting the presence of chemical substances as set forth in s.
80877.111 or controlled substances if the person is lawfully
81arrested for any offense allegedly committed while the person
82was driving or was in actual physical control of a motor vehicle
83while under the influence of chemical substances or controlled
84substances. The urine test must be incidental to a lawful arrest
85and administered at a detention facility or any other facility,
86mobile or otherwise, which is equipped to administer such tests
87at the request of a law enforcement officer who has reasonable
88cause to believe such person was driving or was in actual
89physical control of a motor vehicle within this state while
90under the influence of chemical substances or controlled
91substances. The urine test shall be administered at a detention
92facility or any other facility, mobile or otherwise, which is
93equipped to administer such test in a reasonable manner that
94will ensure the accuracy of the specimen and maintain the
95privacy of the individual involved. The administration of a
96urine test does not preclude the administration of another type
97of test. The person shall be told that his or her failure to
98submit to any lawful test of his or her urine will result in the
99suspension of the person's privilege to operate a motor vehicle
100for a period of 1 year for the first refusal, or for a period of
10118 months if the driving privilege of such person has been
102previously suspended as a result of a refusal to submit to such
103a test or tests, and shall also be told that if he or she
104refuses to submit to a lawful test of his or her urine and his
105or her driving privilege has been previously suspended for a
106prior refusal to submit to a lawful test of his or her breath,
107urine, or blood, he or she commits a misdemeanor in addition to
108any other penalties. The refusal to submit to a urine test upon
109the request of a law enforcement officer as provided in this
110section is admissible into evidence in any criminal proceeding.
111     2.  The Alcohol Testing Program within the Department of
112Law Enforcement is responsible for the regulation of the
113operation, inspection, and registration of breath test
114instruments utilized under the driving and boating under the
115influence provisions and related provisions located in this
116chapter and chapters 322 and 327. The program is responsible for
117the regulation of the individuals who operate, inspect, and
118instruct on the breath test instruments utilized in the driving
119and boating under the influence provisions and related
120provisions located in this chapter and chapters 322 and 327. The
121program is further responsible for the regulation of blood
122analysts who conduct blood testing to be utilized under the
123driving and boating under the influence provisions and related
124provisions located in this chapter and chapters 322 and 327. The
125program shall:
126     a.  Establish uniform criteria for the issuance of permits
127to breath test operators, agency inspectors, instructors, blood
128analysts, and instruments.
129     b.  Have the authority to permit breath test operators,
130agency inspectors, instructors, blood analysts, and instruments.
131     c.  Have the authority to discipline and suspend, revoke,
132or renew the permits of breath test operators, agency
133inspectors, instructors, blood analysts, and instruments.
134     d.  Establish uniform requirements for instruction and
135curricula for the operation and inspection of approved
136instruments.
137     e.  Have the authority to specify one approved curriculum
138for the operation and inspection of approved instruments.
139     f.  Establish a procedure for the approval of breath test
140operator and agency inspector classes.
141     g.  Have the authority to approve or disapprove breath test
142instruments and accompanying paraphernalia for use pursuant to
143the driving and boating under the influence provisions and
144related provisions located in this chapter and chapters 322 and
145327.
146     h.  With the approval of the executive director of the
147Department of Law Enforcement, make and enter into contracts and
148agreements with other agencies, organizations, associations,
149corporations, individuals, or federal agencies as are necessary,
150expedient, or incidental to the performance of duties.
151     i.  Issue final orders which include findings of fact and
152conclusions of law and which constitute final agency action for
153the purpose of chapter 120.
154     j.  Enforce compliance with the provisions of this section
155through civil or administrative proceedings.
156     k.  Make recommendations concerning any matter within the
157purview of this section, this chapter, chapter 322, or chapter
158327.
159     l.  Promulgate rules for the administration and
160implementation of this section, including definitions of terms.
161     m.  Consult and cooperate with other entities for the
162purpose of implementing the mandates of this section.
163     n.  Have the authority to approve the type of blood test
164utilized under the driving and boating under the influence
165provisions and related provisions located in this chapter and
166chapters 322 and 327.
167     o.  Have the authority to specify techniques and methods
168for breath alcohol testing and blood testing utilized under the
169driving and boating under the influence provisions and related
170provisions located in this chapter and chapters 322 and 327.
171     p.  Have the authority to approve repair facilities for the
172approved breath test instruments, including the authority to set
173criteria for approval.
174
175Nothing in this section shall be construed to supersede
176provisions in this chapter and chapters 322 and 327. The
177specifications in this section are derived from the power and
178authority previously and currently possessed by the Department
179of Law Enforcement and are enumerated to conform with the
180mandates of chapter 99-379, Laws of Florida.
181     (c)  Any person who accepts the privilege extended by the
182laws of this state of operating a motor vehicle within this
183state is, by operating such vehicle, deemed to have given his or
184her consent to submit to an approved blood test for the purpose
185of determining the alcoholic content of the blood or a blood
186test for the purpose of determining the presence of chemical
187substances or controlled substances as provided in this section
188if there is reasonable cause to believe the person was driving
189or in actual physical control of a motor vehicle while under the
190influence of alcoholic beverages or chemical or controlled
191substances and the person appears for treatment at a hospital,
192clinic, or other medical facility and the administration of a
193breath or urine test is impractical or impossible. As used in
194this paragraph, the term "other medical facility" includes an
195ambulance or other medical emergency vehicle. The blood test
196shall be performed in a reasonable manner. Any person who is
197incapable of refusal by reason of unconsciousness or other
198mental or physical condition is deemed not to have withdrawn his
199or her consent to such test. A blood test may be administered
200whether or not the person is told that his or her failure to
201submit to such a blood test will result in the suspension of the
202person's privilege to operate a motor vehicle upon the public
203highways of this state and that a refusal to submit to a lawful
204test of his or her blood, if his or her driving privilege has
205been previously suspended for refusal to submit to a lawful test
206of his or her breath, urine, or blood, is a misdemeanor. Any
207person who is capable of refusal shall be told that his or her
208failure to submit to such a blood test will result in the
209suspension of the person's privilege to operate a motor vehicle
210for a period of 1 year for a first refusal, or for a period of
21118 months if the driving privilege of the person has been
212suspended previously as a result of a refusal to submit to such
213a test or tests, and that a refusal to submit to a lawful test
214of his or her blood, if his or her driving privilege has been
215previously suspended for a prior refusal to submit to a lawful
216test of his or her breath, urine, or blood, is a misdemeanor.
217The refusal to submit to a blood test upon the request of a law
218enforcement officer is admissible in evidence in any criminal
219proceeding.
220     Section 2.  Paragraph (a) of subsection (1) of section
221316.1933, Florida Statutes, is amended to read:
222     316.1933  Blood test for alcohol, chemical substances, or
223controlled substances impairment or intoxication in cases of
224death or serious bodily injury; right to use reasonable force.--
225     (1)(a)  If a law enforcement officer has probable cause to
226believe that a motor vehicle driven by or in the actual physical
227control of a person under the influence of alcoholic beverages,
228any chemical substances, or any controlled substances has caused
229the death or serious bodily injury of a human being, or if the
230person driving or in actual physical control of a motor vehicle
231has refused or failed to submit to a urine test requested
232pursuant to s. 316.1932(1)(a)1.b., a law enforcement officer
233shall require the person driving or in actual physical control
234of the motor vehicle to submit to a test of the person's blood
235for the purpose of determining the alcoholic content thereof or
236the presence of chemical substances as set forth in s. 877.111
237or any substance controlled under chapter 893. The law
238enforcement officer may use reasonable force if necessary to
239require such person to submit to the administration of the blood
240test. The blood test shall be performed in a reasonable manner.
241Notwithstanding s. 316.1932, the testing required by this
242paragraph need not be incidental to a lawful arrest of the
243person unless the testing is required because the person refused
244or failed to submit to a urine test requested pursuant to s.
245316.1932(1)(a)1.b.
246     Section 3.  Section 316.1939, Florida Statutes, is amended
247to read:
248     316.1939  Refusal to submit to testing; penalties.--
249     (1)  Any person who has refused to submit to a chemical or
250physical test of his or her breath, blood, or urine, as
251described in s. 316.1932, and whose driving privilege was
252previously suspended for a prior refusal to submit to a lawful
253test of his or her breath, urine, or blood, and:
254     (a)  Who the arresting law enforcement officer had probable
255cause to believe was driving or in actual physical control of a
256motor vehicle in this state while under the influence of
257alcoholic beverages, chemical substances, or controlled
258substances;
259     (b)  Who was placed under lawful arrest for a violation of
260s. 316.193 unless such test was requested pursuant to s.
261316.1932(1)(c);
262     (c)  Who was informed that, if he or she refused to submit
263to such test, his or her privilege to operate a motor vehicle
264would be suspended for a period of 1 year or, in the case of a
265second or subsequent refusal, for a period of 18 months;
266     (d)  Who was informed that a refusal to submit to a lawful
267test of his or her breath, urine, or blood, if his or her
268driving privilege has been previously suspended for a prior
269refusal to submit to a lawful test of his or her breath, urine,
270or blood, is a misdemeanor; and
271     (e)  Who, after having been so informed, refused to submit
272to any such test when requested to do so by a law enforcement
273officer or correctional officer
274
275commits a misdemeanor of the first degree, punishable and is
276subject to punishment as provided in s. 775.082 or s. 775.083.
277     (2)  The disposition of any administrative proceeding that
278relates to the suspension of a person's driving privilege does
279not affect a criminal action under this section.
280     (3)  The disposition of a criminal action under this
281section does not affect any administrative proceeding that
282relates to the suspension of a person's driving privilege. The
283department's records showing that a person's license has been
284previously suspended for a prior refusal to submit to a lawful
285test of his or her breath, urine, or blood shall be admissible
286and shall create a rebuttable presumption of such suspension.
287     Section 4.  Paragraphs (a) and (c) of subsection (1) of
288section 327.352, Florida Statutes, are amended to read:
289     327.352  Tests for alcohol, chemical substances, or
290controlled substances; implied consent; refusal.--
291     (1)(a)1.  The Legislature declares that the operation of a
292vessel is a privilege that must be exercised in a reasonable
293manner. In order to protect the public health and safety, it is
294essential that a lawful and effective means of reducing the
295incidence of boating while impaired or intoxicated be
296established. Therefore, any person who accepts the privilege
297extended by the laws of this state of operating a vessel within
298this state is, by so operating such vessel, deemed to have given
299his or her consent to submit to an approved chemical test or
300physical test including, but not limited to, an infrared light
301test of his or her breath for the purpose of determining the
302alcoholic content of his or her blood or breath if the person is
303lawfully arrested for any offense allegedly committed while the
304person was operating a vessel while under the influence of
305alcoholic beverages. The chemical or physical breath test must
306be incidental to a lawful arrest and administered at the request
307of a law enforcement officer who has reasonable cause to believe
308such person was operating the vessel within this state while
309under the influence of alcoholic beverages. The administration
310of a breath test does not preclude the administration of another
311type of test. The person shall be told that his or her failure
312to submit to any lawful test of his or her breath will result in
313a civil penalty of $500, and shall also be told that if he or
314she refuses to submit to a lawful test of his or her breath and
315he or she has been previously fined for refusal to submit to any
316lawful test of his or her breath, urine, or blood, he or she
317commits a misdemeanor in addition to any other penalties. The
318refusal to submit to a chemical or physical breath test upon the
319request of a law enforcement officer as provided in this section
320is admissible into evidence in any criminal proceeding.
321     2.  Any person who accepts the privilege extended by the
322laws of this state of operating a vessel within this state is,
323by so operating such vessel, deemed to have given his or her
324consent to submit to a urine test for the purpose of detecting
325the presence of chemical substances as set forth in s. 877.111
326or controlled substances if the person is lawfully arrested for
327any offense allegedly committed while the person was operating a
328vessel while under the influence of chemical substances or
329controlled substances. The urine test must be incidental to a
330lawful arrest and administered at a detention facility or any
331other facility, mobile or otherwise, which is equipped to
332administer such tests at the request of a law enforcement
333officer who has reasonable cause to believe such person was
334operating a vessel within this state while under the influence
335of chemical substances or controlled substances. The urine test
336shall be administered at a detention facility or any other
337facility, mobile or otherwise, which is equipped to administer
338such test in a reasonable manner that will ensure the accuracy
339of the specimen and maintain the privacy of the individual
340involved. The administration of a urine test does not preclude
341the administration of another type of test. The person shall be
342told that his or her failure to submit to any lawful test of his
343or her urine will result in a civil penalty of $500, and shall
344also be told that if he or she refuses to submit to a lawful
345test of his or her urine and he or she has been previously fined
346for refusal to submit to any lawful test of his or her breath,
347urine, or blood, he or she commits a misdemeanor in addition to
348any other penalties. The refusal to submit to a urine test upon
349the request of a law enforcement officer as provided in this
350section is admissible into evidence in any criminal proceeding.
351     (c)  Any person who accepts the privilege extended by the
352laws of this state of operating a vessel within this state is,
353by operating such vessel, deemed to have given his or her
354consent to submit to an approved blood test for the purpose of
355determining the alcoholic content of the blood or a blood test
356for the purpose of determining the presence of chemical
357substances or controlled substances as provided in this section
358if there is reasonable cause to believe the person was operating
359a vessel while under the influence of alcoholic beverages or
360chemical or controlled substances and the person appears for
361treatment at a hospital, clinic, or other medical facility and
362the administration of a breath or urine test is impractical or
363impossible. As used in this paragraph, the term "other medical
364facility" includes an ambulance or other medical emergency
365vehicle. The blood test shall be performed in a reasonable
366manner. Any person who is incapable of refusal by reason of
367unconsciousness or other mental or physical condition is deemed
368not to have withdrawn his or her consent to such test. Any
369person who is capable of refusal shall be told that his or her
370failure to submit to such a blood test will result in a civil
371penalty of $500 and that a refusal to submit to a lawful test of
372his or her blood, if he or she has previously been fined for
373refusal to submit to any lawful test of his or her breath,
374urine, or blood, is a misdemeanor. The refusal to submit to a
375blood test upon the request of a law enforcement officer shall
376be admissible in evidence in any criminal proceeding.
377     Section 5.  Paragraph (a) of subsection (1) of section
378327.353, Florida Statutes, is amended to read:
379     327.353  Blood test for alcohol, chemical substances, or
380controlled substances impairment or intoxication in cases of
381death or serious bodily injury; right to use reasonable force.--
382     (1)(a)  If a law enforcement officer has probable cause to
383believe that a vessel operated by a person under the influence
384of alcoholic beverages, any chemical substances, or any
385controlled substances has caused the death or serious bodily
386injury of a human being, or if the person operating or in actual
387physical control of a vessel has refused or failed to submit to
388a urine test requested pursuant to s. 327.352(1)(a)2., a law
389enforcement officer shall require the person operating or in
390actual physical control of the vessel to submit to a test of the
391person's blood for the purpose of determining the alcoholic
392content thereof or the presence of chemical substances as set
393forth in s. 877.111 or any substance controlled under chapter
394893. The law enforcement officer may use reasonable force if
395necessary to require the person to submit to the administration
396of the blood test. The blood test shall be performed in a
397reasonable manner. Notwithstanding s. 327.352, the testing
398required by this paragraph need not be incidental to a lawful
399arrest of the person unless the testing is required because the
400person refused or failed to submit to a urine test requested
401pursuant to s. 327.352(1)(a)2.
402     Section 6.  Section 327.359, Florida Statutes, is amended
403to read:
404     327.359  Refusal to submit to testing; penalties.--Any
405person who has refused to submit to a chemical or physical test
406of his or her breath, blood, or urine, as described in s.
407327.352, and who has been previously fined for refusal to submit
408to a lawful test of his or her breath, urine, or blood, and:
409     (1)  Who the arresting law enforcement officer had probable
410cause to believe was operating or in actual physical control of
411a vessel in this state while under the influence of alcoholic
412beverages, chemical substances, or controlled substances;
413     (2)  Who was placed under lawful arrest for a violation of
414s. 327.35 unless such test was requested pursuant to s.
415327.352(1)(c);
416     (3)  Who was informed that if he or she refused to submit
417to such test he or she is subject to a fine of $500;
418     (4)  Who was informed that a refusal to submit to a lawful
419test of his or her breath, urine, or blood, if he or she has
420been previously fined for refusal to submit to a lawful test of
421his or her breath, urine, or blood, is a misdemeanor; and
422     (5)  Who, after having been so informed, refused to submit
423to any such test when requested to do so by a law enforcement
424officer or correctional officer
425
426commits a misdemeanor of the first degree, punishable and is
427subject to punishment as provided in s. 775.082 or s. 775.083.
428     Section 7.  This act shall take effect October 1, 2006.


CODING: Words stricken are deletions; words underlined are additions.