| 1 | A bill to be entitled | 
| 2 | An act relating to driving and boating under the | 
| 3 | influence; providing a short title; amending s. 316.193, | 
| 4 | F.S.; revising the applicability of sanctions; requiring a | 
| 5 | specified period of imprisonment for a fourth or | 
| 6 | subsequent conviction of driving under the influence; | 
| 7 | prohibiting substitution of treatment alternatives in | 
| 8 | certain circumstances; requiring impoundment or | 
| 9 | immobilization of all vehicles owned by the defendant for | 
| 10 | a specified period; providing for dismissal of an | 
| 11 | impoundment order; requiring records of judgments of | 
| 12 | guilty to include fingerprints and social security | 
| 13 | numbers; amending s. 327.35, F.S.; revising the | 
| 14 | applicability of sanctions; requiring a specified period | 
| 15 | of imprisonment for a fourth or subsequent conviction of | 
| 16 | boating under the influence; prohibiting substitution of | 
| 17 | treatment alternatives in certain circumstances; requiring | 
| 18 | impoundment or immobilization of the vessel operated by or | 
| 19 | in the actual control of the defendant or any one vehicle | 
| 20 | registered in the defendant's name at the time of | 
| 21 | impoundment or immobilization for a specified period; | 
| 22 | providing for dismissal of an order of impoundment or | 
| 23 | immobilization under certain circumstances upon request of | 
| 24 | an owner who was not operating the vessel; providing for | 
| 25 | dismissal of an impoundment order; requiring records of | 
| 26 | judgments of guilty to include fingerprints and social | 
| 27 | security numbers; providing an effective date. | 
| 28 | 
 | 
| 29 | Be It Enacted by the Legislature of the State of Florida: | 
| 30 | 
 | 
| 31 | Section 1.  This act may be cited as "The Barry and Sydney | 
| 32 | Mazer Act." | 
| 33 | Section 2.  Subsection (6) of section 316.193, Florida | 
| 34 | Statutes, is amended, and subsection (13) is added to that | 
| 35 | section, to read: | 
| 36 | 316.193  Driving under the influence; penalties.-- | 
| 37 | (6)  With respect to any person convicted of a violation of | 
| 38 | this section subsection (1), regardless of any penalty imposed | 
| 39 | pursuant to subsection (2), subsection (3), or subsection (4): | 
| 40 | (a)  For the first conviction, the court shall place the | 
| 41 | defendant on probation for a period not to exceed 1 yearand, as | 
| 42 | a condition of such probation, shall order the defendant to | 
| 43 | participate in public service or a community work project for a | 
| 44 | minimum of 50 hours; or the court may order instead, that any | 
| 45 | defendant pay an additional fine of $10 for each hour of public | 
| 46 | service or community work otherwise required, if, after | 
| 47 | consideration of the residence or location of the defendant at | 
| 48 | the time public service or community work is required, payment | 
| 49 | of the fine is in the best interests of the state. However, the | 
| 50 | total period of probation and incarceration may not exceed 1 | 
| 51 | year.The court must also, as a condition of probation, order | 
| 52 | the impoundment or immobilization of the vehicle that was | 
| 53 | operated by or in the actual control of the defendant or any one | 
| 54 | vehicle registered in the defendant's name at the time of | 
| 55 | impoundment or immobilization, for a period of 10 days or for | 
| 56 | the unexpired term of any lease or rental agreement that expires | 
| 57 | within 10 days. The impoundment or immobilization must not occur | 
| 58 | concurrently with the incarceration of the defendant. The | 
| 59 | impoundment or immobilization order may be dismissed in | 
| 60 | accordance with paragraph (e), paragraph (f), paragraph (g), or | 
| 61 | paragraph (h). | 
| 62 | (b)  For the second conviction for an offense that occurs | 
| 63 | within a period of 5 years after the date of a prior conviction | 
| 64 | for violation of this section, the court shall order | 
| 65 | imprisonment for not less than 10 days. The court must also, as | 
| 66 | a condition of probation, order the impoundment or | 
| 67 | immobilization of all vehicles owned by the defendant at the | 
| 68 | time of impoundment or immobilization ,for a period of 30 days | 
| 69 | or for the unexpired term of any lease or rental agreement that | 
| 70 | expires within 30 days. The impoundment or immobilization must | 
| 71 | not occur concurrently with the incarceration of the defendant | 
| 72 | and must occur concurrently with the driver's license revocation | 
| 73 | imposed under s. 322.28(2)(a)2. The impoundment or | 
| 74 | immobilization order may be dismissed in accordance with | 
| 75 | paragraph (e), paragraph (f), paragraph (g), or paragraph (h). | 
| 76 | At least 48 hours of confinement must be consecutive. | 
| 77 | (c)  For the third or subsequentconvictionfor an offense | 
| 78 | that occurs within a period of 10 years after the date of a | 
| 79 | prior conviction for violation of this section, the court shall | 
| 80 | order imprisonment for not less than 30 days. The court must | 
| 81 | also, as a condition of probation, order the impoundment or | 
| 82 | immobilization of all vehicles owned by the defendant at the | 
| 83 | time of impoundment or immobilization ,for a period of 90 days | 
| 84 | or for the unexpired term of any lease or rental agreement that | 
| 85 | expires within 90 days. The impoundment or immobilization may | 
| 86 | mustnot occur concurrently with the incarceration of the | 
| 87 | defendant and shall mustoccur concurrently with the driver's | 
| 88 | license revocation imposed under s. 322.28(2)(a)3. The | 
| 89 | impoundment or immobilization order may be dismissed in | 
| 90 | accordance with paragraph (e), paragraph (f), paragraph (g), or | 
| 91 | paragraph (h). At least 48 hours of confinement must be | 
| 92 | consecutive. | 
| 93 | (d)  The court must at the time of sentencing the defendant | 
| 94 | issue an order for the impoundment or immobilization of a | 
| 95 | vehicle. Within 7 business days after the date that the court | 
| 96 | issues the order of impoundment or immobilization, the clerk of | 
| 97 | the court must send notice by certified mail, return receipt | 
| 98 | requested, to the registered owner of each vehicle, if the | 
| 99 | registered owner is a person other than the defendant, and to | 
| 100 | each person of record claiming a lien against the vehicle. | 
| 101 | (e)  A person who owns but was not operating the vehicle | 
| 102 | when the offense occurred may submit to the court a police | 
| 103 | report indicating that the vehicle was stolen at the time of the | 
| 104 | offense or documentation of having purchased the vehicle after | 
| 105 | the offense was committed from an entity other than the | 
| 106 | defendant or the defendant's agent. If the court finds that the | 
| 107 | vehicle was stolen or that the sale was not made to circumvent | 
| 108 | the order and allow the defendant continued access to the | 
| 109 | vehicle, the order must be dismissed and the owner of the | 
| 110 | vehicle will incur no costs. If the court denies the request to | 
| 111 | dismiss the order of impoundment or immobilization, the | 
| 112 | petitioner may request an evidentiary hearing. | 
| 113 | (f)  A person who owns but was not operating the vehicle | 
| 114 | when the offense occurred, and whose vehicle was stolen or who | 
| 115 | purchased the vehicle after the offense was committed directly | 
| 116 | from the defendant or the defendant's agent, may request an | 
| 117 | evidentiary hearing to determine whether the impoundment or | 
| 118 | immobilization should occur. If the court finds that either the | 
| 119 | vehicle was stolen or the purchase was made without knowledge of | 
| 120 | the offense, that the purchaser had no relationship to the | 
| 121 | defendant other than through the transaction, and that such | 
| 122 | purchase would not circumvent the order and allow the defendant | 
| 123 | continued access to the vehicle, the order must be dismissed and | 
| 124 | the owner of the vehicle will incur no costs. | 
| 125 | (g)  The court shall also dismiss the order of impoundment | 
| 126 | or immobilization of the vehicle if the court finds that the | 
| 127 | family of the owner of the vehicle has no other private or | 
| 128 | public means of transportation. | 
| 129 | (h)  The court may also dismiss the order of impoundment or | 
| 130 | immobilization of any vehicles that are owned by the defendant | 
| 131 | but that are operated solely by the employees of the defendant | 
| 132 | or any business owned by the defendant. | 
| 133 | (i)  All costs and fees for the impoundment or | 
| 134 | immobilization, including the cost of notification, must be paid | 
| 135 | by the owner of the vehicle or, if the vehicle is leased or | 
| 136 | rented, by the person leasing or renting the vehicle, unless the | 
| 137 | impoundment or immobilization order is dismissed. All provisions | 
| 138 | of s. 713.78 shall apply. | 
| 139 | (j)  The person who owns a vehicle that is impounded or | 
| 140 | immobilized under this paragraph, or a person who has a lien of | 
| 141 | record against such a vehicle and who has not requested a review | 
| 142 | of the impoundment pursuant to paragraph (e), paragraph (f), or | 
| 143 | paragraph (g), may, within 10 days after the date that person | 
| 144 | has knowledge of the location of the vehicle, file a complaint | 
| 145 | in the county in which the owner resides to determine whether | 
| 146 | the vehicle was wrongfully taken or withheld from the owner or | 
| 147 | lienholder. Upon the filing of a complaint, the owner or | 
| 148 | lienholder may have the vehicle released by posting with the | 
| 149 | court a bond or other adequate security equal to the amount of | 
| 150 | the costs and fees for impoundment or immobilization, including | 
| 151 | towing or storage, to ensure the payment of such costs and fees | 
| 152 | if the owner or lienholder does not prevail. When the bond is | 
| 153 | posted and the fee is paid as set forth in s. 28.24, the clerk | 
| 154 | of the court shall issue a certificate releasing the vehicle. At | 
| 155 | the time of release, after reasonable inspection, the owner or | 
| 156 | lienholder must give a receipt to the towing or storage company | 
| 157 | indicating any loss or damage to the vehicle or to the contents | 
| 158 | of the vehicle. | 
| 159 | (k)  A defendant, in the court's discretion, may be | 
| 160 | required to serve all or any portion of a term of imprisonment | 
| 161 | to which the defendant has been sentenced pursuant to this | 
| 162 | section in a residential alcoholism treatment program or a | 
| 163 | residential drug abuse treatment program. Any time spent in such | 
| 164 | a program must be credited by the court toward the term of | 
| 165 | imprisonment. | 
| 166 | (l)  For the fourth or subsequent conviction under | 
| 167 | subparagraph (2)(b)3., the court shall order imprisonment for | 
| 168 | not less than 2 years. Another punishment may not be substituted | 
| 169 | for this minimum mandatory term of imprisonment with treatment | 
| 170 | alternatives. However, the court may, with the consent of the | 
| 171 | state, order the defendant to serve a minimum mandatory sentence | 
| 172 | of 1 year and 1 day of incarceration followed by a period of | 
| 173 | probation during which the defendant must attend and | 
| 174 | successfully complete a residential alcohol treatment program or | 
| 175 | a residential drug abuse treatment program or be placed on | 
| 176 | community control. The court must also, as a condition of | 
| 177 | probation, order the impoundment or immobilization of all | 
| 178 | vehicles owned by the defendant at the time of impoundment or | 
| 179 | immobilization for a period of 120 days or for the unexpired | 
| 180 | term of any lease or rental agreement that expires within 120 | 
| 181 | days. The impoundment or immobilization may not occur | 
| 182 | concurrently with the incarceration of the defendant and shall | 
| 183 | occur concurrently with the driver's license revocation imposed | 
| 184 | under s. 322.28. The impoundment or immobilization order may be | 
| 185 | dismissed in accordance with paragraph (e), paragraph (f), | 
| 186 | paragraph (g), or paragraph (h). At least 48 hours of | 
| 187 | confinement must be consecutive. | 
| 188 | 
 | 
| 189 | For the purposes of this section, any conviction for a violation | 
| 190 | of s. 327.35; a previous conviction for the violation of former | 
| 191 | s. 316.1931, former s. 860.01, or former s. 316.028; or a | 
| 192 | previous conviction outside this state for driving under the | 
| 193 | influence, driving while intoxicated, driving with an unlawful | 
| 194 | blood-alcohol level, driving with an unlawful breath-alcohol | 
| 195 | level, or any other similar alcohol-related or drug-related | 
| 196 | traffic offense, is also considered a previous conviction for | 
| 197 | violation of this section. However, in satisfaction of the fine | 
| 198 | imposed pursuant to this section, the court may, upon a finding | 
| 199 | that the defendant is financially unable to pay either all or | 
| 200 | part of the fine, order that the defendant participate for a | 
| 201 | specified additional period of time in public service or a | 
| 202 | community work project in lieu of payment of that portion of the | 
| 203 | fine which the court determines the defendant is unable to pay. | 
| 204 | In determining such additional sentence, the court shall | 
| 205 | consider the amount of the unpaid portion of the fine and the | 
| 206 | reasonable value of the services to be ordered; however, the | 
| 207 | court may not compute the reasonable value of services at a rate | 
| 208 | less than the federal minimum wage at the time of sentencing. | 
| 209 | (13)(a)  Notwithstanding s. 921.241, every judgment of | 
| 210 | guilty with respect to any offense governed by this section | 
| 211 | shall comply with this subsection. Each judgment shall be in | 
| 212 | writing, signed by the judge, and recorded by the clerk of the | 
| 213 | circuit court. The judge shall cause to be affixed to every such | 
| 214 | written judgment of guilty, in open court and in the presence of | 
| 215 | such judge, the fingerprints of the defendant against whom such | 
| 216 | judgment is rendered. Such fingerprints shall be affixed beneath | 
| 217 | the judge's signature to any such judgment. Beneath such | 
| 218 | fingerprints shall be appended a certificate in substantially | 
| 219 | the following form: | 
| 220 | 
 | 
| 221 | "I hereby certify that the above and foregoing fingerprints | 
| 222 | are of the defendant,  (name)  , and that they were placed | 
| 223 | thereon by said defendant in my presence, in open court, | 
| 224 | this the ___ day of _(month)_________ (year) ." | 
| 225 | 
 | 
| 226 | Such certificate shall be signed by the judge, whose signature | 
| 227 | thereto shall be followed by the word "Judge." | 
| 228 | (b)  Any such written judgment of guilty, or a certified | 
| 229 | copy thereof, is admissible in evidence in the courts of this | 
| 230 | state as prima facie evidence that the fingerprints appearing | 
| 231 | thereon and certified by the judge are the fingerprints of the | 
| 232 | defendant against whom such judgment of guilty was rendered. | 
| 233 | (c)  At the time the defendant's fingerprints are taken, | 
| 234 | the judge shall also cause the defendant's social security | 
| 235 | number to be taken. The defendant's social security number shall | 
| 236 | be affixed to every written judgment of guilty, in open court, | 
| 237 | in the presence of such judge, and at the time the judgment is | 
| 238 | rendered. If the defendant is unable or unwilling to provide his | 
| 239 | or her social security number, the reason for its absence shall | 
| 240 | be indicated on the written judgment. | 
| 241 | Section 3.  Paragraphs (a) and (c) of subsection (6) of | 
| 242 | section 327.35, Florida Statutes, are amended, paragraphs (j) | 
| 243 | and (k) are added to that subsection, and subsection (11) is | 
| 244 | added to that section, to read: | 
| 245 | 327.35  Boating under the influence; penalties; "designated | 
| 246 | drivers".-- | 
| 247 | (6)  With respect to any person convicted of a violation of | 
| 248 | subsection (1), regardless of any other penalty imposed: | 
| 249 | (a)  For the first conviction, the court shall place the | 
| 250 | defendant on probation for a period not to exceed 1 yearand, as | 
| 251 | a condition of such probation, shall order the defendant to | 
| 252 | participate in public service or a community work project for a | 
| 253 | minimum of 50 hours. The court must also, as a condition of | 
| 254 | probation, order the impoundment or immobilization of the vessel | 
| 255 | that was operated by or in the actual control of the defendant | 
| 256 | or any one vehicle registered in the defendant's name at the | 
| 257 | time of impoundment or immobilization ,for a period of 10 days | 
| 258 | or for the unexpired term of any lease or rental agreement that | 
| 259 | expires within 10 days. The impoundment or immobilization must | 
| 260 | not occur concurrently with the incarceration of the defendant. | 
| 261 | The impoundment or immobilization order may be dismissed in | 
| 262 | accordance with paragraph (e) or paragraph (f). The total period | 
| 263 | of probation and incarceration may not exceed 1 year. | 
| 264 | (c)  For the third or subsequentconvictionfor an offense | 
| 265 | that occurs within a period of 10 years after the date of a | 
| 266 | prior conviction for violation of this section, the court shall | 
| 267 | order imprisonment for not less than 30 days. The court must | 
| 268 | also, as a condition of probation, order the impoundment or | 
| 269 | immobilization of the vessel that was operated by or in the | 
| 270 | actual control of the defendant or any one vehicle registered in | 
| 271 | the defendant's name at the time of impoundment or | 
| 272 | immobilization ,for a period of 90 days or for the unexpired | 
| 273 | term of any lease or rental agreement that expires within 90 | 
| 274 | days. The impoundment or immobilization may mustnot occur | 
| 275 | concurrently with the incarceration of the defendant. The | 
| 276 | impoundment or immobilization order may be dismissed in | 
| 277 | accordance with paragraph (e) or paragraph (f). At least 48 | 
| 278 | hours of confinement must be consecutive. | 
| 279 | (j)  For the fourth or subsequent conviction under | 
| 280 | subparagraph (2)(b)3., the court shall order imprisonment for | 
| 281 | not less than 2 years. Another punishment may not be substituted | 
| 282 | for this minimum mandatory term of imprisonment with treatment | 
| 283 | alternatives. However, the court may, with the consent of the | 
| 284 | state, order the defendant to serve a minimum mandatory sentence | 
| 285 | of 1 year and 1 day of incarceration followed by a period of | 
| 286 | probation during which the defendant must attend and | 
| 287 | successfully complete a residential alcohol treatment program or | 
| 288 | a residential drug abuse treatment program or be placed on | 
| 289 | community control. The court must also, as a condition of | 
| 290 | probation, order the impoundment or immobilization of the vessel | 
| 291 | that was operated by or in the actual control of the defendant | 
| 292 | or any one vehicle registered in the defendant's name at the | 
| 293 | time of impoundment or immobilization for a period of 120 days | 
| 294 | or for the unexpired term of any lease or rental agreement that | 
| 295 | expires within 120 days. The impoundment or immobilization may | 
| 296 | not occur concurrently with the incarceration of the defendant. | 
| 297 | The impoundment or immobilization order may be dismissed in | 
| 298 | accordance with paragraph (e) or paragraph (f). At least 48 | 
| 299 | hours of confinement must be consecutive. | 
| 300 | (k)  A person who owns but was not operating the vessel | 
| 301 | when an offense under this section occurred may request an | 
| 302 | evidentiary hearing to determine whether the impoundment or | 
| 303 | immobilization should occur. If the court finds that the owner | 
| 304 | was unaware of the defendant's prior conviction and sentence | 
| 305 | under paragraph (a), paragraph (b), paragraph (c), or paragraph | 
| 306 | (j) or if the court finds that there are other mitigating | 
| 307 | circumstances that should allow the owner of the vessel to | 
| 308 | secure the release of the vessel to the owner's possession, the | 
| 309 | court may do so by dismissing the order of impoundment or | 
| 310 | immobilization with or without cost to the vessel owner. | 
| 311 | 
 | 
| 312 | For the purposes of this section, any conviction for a violation | 
| 313 | of s. 316.193, a previous conviction for the violation of former | 
| 314 | s. 316.1931, former s. 860.01, or former s. 316.028, or a | 
| 315 | previous conviction outside this state for driving under the | 
| 316 | influence, driving while intoxicated, driving with an unlawful | 
| 317 | blood-alcohol level, driving with an unlawful breath-alcohol | 
| 318 | level, or any other similar alcohol-related or drug-related | 
| 319 | traffic offense, is also considered a previous conviction for | 
| 320 | violation of this section. | 
| 321 | (11)(a)  Notwithstanding s. 921.241, every judgment of | 
| 322 | guilty with respect to any offense governed by this section | 
| 323 | shall comply with this subsection. Each judgment shall be in | 
| 324 | writing, signed by the judge, and recorded by the clerk of the | 
| 325 | circuit court. The judge shall cause to be affixed to every such | 
| 326 | written judgment of guilty, in open court and in the presence of | 
| 327 | such judge, the fingerprints of the defendant against whom such | 
| 328 | judgment is rendered. Such fingerprints shall be affixed beneath | 
| 329 | the judge's signature to any such judgment. Beneath such | 
| 330 | fingerprints shall be appended a certificate in substantially | 
| 331 | the following form: | 
| 332 | 
 | 
| 333 | "I hereby certify that the above and foregoing fingerprints | 
| 334 | are of the defendant,  (name)  , and that they were placed | 
| 335 | thereon by said defendant in my presence, in open court, | 
| 336 | this the ___ day of _(month)_________ (year) ." | 
| 337 | 
 | 
| 338 | Such certificate shall be signed by the judge, whose signature | 
| 339 | thereto shall be followed by the word "Judge." | 
| 340 | (b)  Any such written judgment of guilty, or a certified | 
| 341 | copy thereof, is admissible in evidence in the courts of this | 
| 342 | state as prima facie evidence that the fingerprints appearing | 
| 343 | thereon and certified by the judge are the fingerprints of the | 
| 344 | defendant against whom such judgment of guilty was rendered. | 
| 345 | (c)  At the time the defendant's fingerprints are taken, | 
| 346 | the judge shall also cause the defendant's social security | 
| 347 | number to be taken. The defendant's social security number shall | 
| 348 | be affixed to every written judgment of guilty, in open court, | 
| 349 | in the presence of such judge, and at the time the judgment is | 
| 350 | rendered. If the defendant is unable or unwilling to provide his | 
| 351 | or her social security number, the reason for its absence shall | 
| 352 | be indicated on the written judgment. | 
| 353 | Section 4.  This act shall take effect October 1, 2007. |