Florida Senate - 2009                                     SB 486
       
       
       
       By Senator Gaetz
       
       
       
       
       4-00511-09                                             2009486__
    1                        A bill to be entitled                      
    2         An act relating to driving while the operator's
    3         license is suspended or revoked; amending s. 322.34,
    4         F.S.; removing provisions requiring a law enforcement
    5         officer to immediately impound or immobilize a motor
    6         vehicle under certain circumstances if the operator's
    7         driver's license or driving privilege is suspended or
    8         revoked; removing a requirement that the arresting
    9         agency or towing service in possession of the
   10         impounded or immobilized vehicle send notice to any
   11         coregistered owner of the vehicle and to each person
   12         of record claiming a lien against the vehicle;
   13         requiring that a vehicle be impounded or immobilized
   14         for specified periods depending on the seriousness of
   15         the violation committed; prohibiting the court from
   16         ordering that the impoundment or immobilization run
   17         concurrently with the defendant's incarceration;
   18         requiring that all costs of impounding or immobilizing
   19         a vehicle be borne by the defendant; providing for a
   20         person who owns or coowns a motor vehicle when a
   21         violation of law was committed to petition the
   22         sentencing court for an order setting aside the
   23         impoundment or immobilization order; requiring that
   24         the court set aside an impoundment or immobilization
   25         order under certain circumstances; amending s.
   26         932.701, F.S., relating to the Florida Contraband
   27         Forfeiture Act; conforming a cross-reference;
   28         providing an effective date.
   29         
   30  Be It Enacted by the Legislature of the State of Florida:
   31         
   32         Section 1. Section 322.34, Florida Statutes, is amended to
   33  read:
   34         322.34 Driving while license suspended, revoked, canceled,
   35  or disqualified.—
   36         (1) Except as provided in subsection (2), any person whose
   37  driver's license or driving privilege has been canceled,
   38  suspended, or revoked, except a “habitual traffic offender” as
   39  defined in s. 322.264, who drives a vehicle upon the highways of
   40  this state while the such license or privilege is canceled,
   41  suspended, or revoked commits is guilty of a moving violation,
   42  punishable as provided in chapter 318.
   43         (2) Except as provided in subsection (9), any person whose
   44  driver's license or driving privilege has been canceled,
   45  suspended, or revoked as provided by law, except persons defined
   46  in s. 322.264, who, knowing of such cancellation, suspension, or
   47  revocation, drives any motor vehicle upon the highways of this
   48  state while the such license or privilege is canceled,
   49  suspended, or revoked, upon:
   50         (a) A first conviction commits is guilty of a misdemeanor
   51  of the second degree, punishable as provided in s. 775.082 or s.
   52  775.083.
   53         (b) A second conviction commits is guilty of a misdemeanor
   54  of the first degree, punishable as provided in s. 775.082 or s.
   55  775.083.
   56         (c) A third or subsequent conviction commits is guilty of a
   57  felony of the third degree, punishable as provided in s.
   58  775.082, s. 775.083, or s. 775.084.
   59  The element of knowledge is satisfied if the person has been
   60  previously cited as provided in subsection (1); or the person
   61  admits to knowledge of the cancellation, suspension, or
   62  revocation; or the person received notice as provided in
   63  subsection (4). There is shall be a rebuttable presumption that
   64  the knowledge requirement is satisfied if a judgment or order as
   65  provided in subsection (4) appears in the department's records
   66  for any case except for one involving a suspension by the
   67  department for failure to pay a traffic fine or for a financial
   68  responsibility violation.
   69         (3) In any proceeding for a violation of this section, a
   70  court may consider evidence, other than that specified in
   71  subsection (2), that the person knowingly violated this section.
   72         (4) Any judgment or order rendered by a court or
   73  adjudicatory body or any uniform traffic citation that cancels,
   74  suspends, or revokes a person's driver's license must contain a
   75  provision notifying the person that his or her driver's license
   76  has been canceled, suspended, or revoked.
   77         (5) Except as provided in subsection (9), any person whose
   78  driver's license has been revoked pursuant to s. 322.264
   79  (habitual offender) and who drives any motor vehicle upon the
   80  highways of this state while the such license is revoked commits
   81  is guilty of a felony of the third degree, punishable as
   82  provided in s. 775.082, s. 775.083, or s. 775.084.
   83         (6) Any person who operates a motor vehicle:
   84         (a) Without having a driver's license as required under s.
   85  322.03; or
   86         (b) While his or her driver's license or driving privilege
   87  is canceled, suspended, or revoked pursuant to s. 316.655, s.
   88  322.26(8), s. 322.27(2), or s. 322.28(2) or (4),
   89  and who by careless or negligent operation of the motor vehicle
   90  causes the death of or serious bodily injury to another human
   91  being commits is guilty of a felony of the third degree,
   92  punishable as provided in s. 775.082 or s. 775.083.
   93         (7) Any person whose driver's license or driving privilege
   94  has been canceled, suspended, revoked, or disqualified and who
   95  drives a commercial motor vehicle on the highways of this state
   96  while the such license or privilege is canceled, suspended,
   97  revoked, or disqualified, upon:
   98         (a) A first conviction commits is guilty of a misdemeanor
   99  of the first degree, punishable as provided in s. 775.082 or s.
  100  775.083.
  101         (b) A second or subsequent conviction commits is guilty of
  102  a felony of the third degree, punishable as provided in s.
  103  775.082, s. 775.083, or s. 775.084.
  104         (8)(a)Upon the arrest of a person for the offense of
  105  driving while the person's driver's license or driving privilege
  106  is suspended or revoked, the arresting officer shall determine:
  107         1.Whether the person's driver's license is suspended or
  108  revoked.
  109         2.Whether the person's driver's license has remained
  110  suspended or revoked since a conviction for the offense of
  111  driving with a suspended or revoked license.
  112         3.Whether the suspension or revocation was made under s.
  113  316.646 or s. 627.733, relating to failure to maintain required
  114  security, or under s. 322.264, relating to habitual traffic
  115  offenders.
  116         4.Whether the driver is the registered owner or coowner of
  117  the vehicle.
  118         (b)If the arresting officer finds in the affirmative as to
  119  all of the criteria in paragraph (a), the officer shall
  120  immediately impound or immobilize the vehicle.
  121         (c)Within 7 business days after the date the arresting
  122  agency impounds or immobilizes the vehicle, either the arresting
  123  agency or the towing service, whichever is in possession of the
  124  vehicle, shall send notice by certified mail, return receipt
  125  requested, to any coregistered owners of the vehicle other than
  126  the person arrested and to each person of record claiming a lien
  127  against the vehicle. All costs and fees for the impoundment or
  128  immobilization, including the cost of notification, must be paid
  129  by the owner of the vehicle or, if the vehicle is leased, by the
  130  person leasing the vehicle.
  131         (d)Either the arresting agency or the towing service,
  132  whichever is in possession of the vehicle, shall determine
  133  whether any vehicle impounded or immobilized under this section
  134  has been leased or rented or if there are any persons of record
  135  with a lien upon the vehicle. Either the arresting agency or the
  136  towing service, whichever is in possession of the vehicle, shall
  137  notify by express courier service with receipt or certified
  138  mail, return receipt requested, within 7 business days after the
  139  date of the immobilization or impoundment of the vehicle, the
  140  registered owner and all persons having a recorded lien against
  141  the vehicle that the vehicle has been impounded or immobilized.
  142  A lessor, rental car company, or lienholder may then obtain the
  143  vehicle, upon payment of any lawful towing or storage charges.
  144  If the vehicle is a rental vehicle subject to a written
  145  contract, the charges may be separately charged to the renter,
  146  in addition to the rental rate, along with other separate fees,
  147  charges, and recoupments disclosed on the rental agreement. If
  148  the storage facility fails to provide timely notice to a lessor,
  149  rental car company, or lienholder as required by this paragraph,
  150  the storage facility shall be responsible for payment of any
  151  towing or storage charges necessary to release the vehicle to a
  152  lessor, rental car company, or lienholder that accrue after the
  153  notice period, which charges may then be assessed against the
  154  driver of the vehicle if the vehicle was lawfully impounded or
  155  immobilized.
  156         (e)Except as provided in paragraph (d), the vehicle shall
  157  remain impounded or immobilized for any period imposed by the
  158  court until:
  159         1.The owner presents proof of insurance to the arresting
  160  agency; or
  161         2.The owner presents proof of sale of the vehicle to the
  162  arresting agency and the buyer presents proof of insurance to
  163  the arresting agency.
  164  If proof is not presented within 35 days after the impoundment
  165  or immobilization, a lien shall be placed upon such vehicle
  166  pursuant to s. 713.78.
  167         (f)The owner of a vehicle that is impounded or immobilized
  168  under this subsection may, within 10 days after the date the
  169  owner has knowledge of the location of the vehicle, file a
  170  complaint in the county in which the owner resides to determine
  171  whether the vehicle was wrongfully taken or withheld. Upon the
  172  filing of a complaint, the owner may have the vehicle released
  173  by posting with the court a bond or other adequate security
  174  equal to the amount of the costs and fees for impoundment or
  175  immobilization, including towing or storage, to ensure the
  176  payment of such costs and fees if the owner does not prevail.
  177  When the vehicle owner does not prevail on a complaint that the
  178  vehicle was wrongfully taken or withheld, he or she must pay the
  179  accrued charges for the immobilization or impoundment, including
  180  any towing and storage charges assessed against the vehicle.
  181  When the bond is posted and the fee is paid as set forth in s.
  182  28.24, the clerk of the court shall issue a certificate
  183  releasing the vehicle. At the time of release, after reasonable
  184  inspection, the owner must give a receipt to the towing or
  185  storage company indicating any loss or damage to the vehicle or
  186  to the contents of the vehicle.
  187         (8)(9)(a) A motor vehicle that is driven by a person under
  188  the influence of alcohol or drugs in violation of s. 316.193 is
  189  subject to seizure and forfeiture under ss. 932.701-932.706 and
  190  is subject to liens for recovering, towing, or storing vehicles
  191  under s. 713.78 if, at the time of the offense, the person's
  192  driver's license is suspended, revoked, or canceled as a result
  193  of a prior conviction for driving under the influence.
  194         (b) The law enforcement officer shall notify the Department
  195  of Highway Safety and Motor Vehicles of any impoundment or
  196  seizure for violation of paragraph (a) in accordance with
  197  procedures established by the department.
  198         (c) Notwithstanding s. 932.703(1)(c) or s. 932.7055, when
  199  the seizing agency obtains a final judgment granting forfeiture
  200  of the motor vehicle under this section, 30 percent of the net
  201  proceeds from the sale of the motor vehicle shall be retained by
  202  the seizing law enforcement agency and 70 percent shall be
  203  deposited in the General Revenue Fund for use by regional
  204  workforce boards in providing transportation services for
  205  participants of the welfare transition program. In a forfeiture
  206  proceeding under this section, the court may consider the extent
  207  that the family of the owner has other public or private means
  208  of transportation.
  209         (9)(10)(a) Notwithstanding any other provision of this
  210  section, if a person does not have a prior forcible felony
  211  conviction as defined in s. 776.08, the penalties provided in
  212  paragraph (b) apply if a person's driver's license or driving
  213  privilege is canceled, suspended, or revoked for:
  214         1. Failing to pay child support as provided in s. 322.245
  215  or s. 61.13016;
  216         2. Failing to pay any other financial obligation as
  217  provided in s. 322.245 other than those specified in s.
  218  322.245(1);
  219         3. Failing to comply with a civil penalty required in s.
  220  318.15;
  221         4. Failing to maintain vehicular financial responsibility
  222  as required by chapter 324;
  223         5. Failing to comply with attendance or other requirements
  224  for minors as set forth in s. 322.091; or
  225         6. Having been designated a habitual traffic offender under
  226  s. 322.264(1)(d) as a result of suspensions of his or her
  227  driver's license or driver privilege for any underlying
  228  violation listed in subparagraphs 1.-5.
  229         (b)1. Upon a first conviction for knowingly driving while
  230  his or her license is suspended, revoked, or canceled for any of
  231  the underlying violations listed in subparagraphs (a)1.-6., a
  232  person commits a misdemeanor of the second degree, punishable as
  233  provided in s. 775.082 or s. 775.083.
  234         2. Upon a second or subsequent conviction for the same
  235  offense of knowingly driving while his or her license is
  236  suspended, revoked, or canceled for any of the underlying
  237  violations listed in subparagraphs (a)1.-6., a person commits a
  238  misdemeanor of the first degree, punishable as provided in s.
  239  775.082 or s. 775.083.
  240         (10)(a) Except for a person convicted under subsection (7),
  241  at the time of sentencing the court shall order the impoundment
  242  or immobilization of any motor vehicle that was operated by,
  243  under the actual control of, or registered in the name of the
  244  defendant, as follows:
  245         1.For a second-degree misdemeanor the impoundment or
  246  immobilization shall be for 5 days;
  247         2.For a first-degree misdemeanor the impoundment or
  248  immobilization shall be for 10 days; and
  249         3.For a third-degree felony the impoundment or
  250  immobilization shall be for 30 days.
  251         (b)The court may not order the impoundment or
  252  immobilization to run concurrently with any incarceration of the
  253  defendant.
  254         (c)All costs of impoundment or immobilization must be
  255  borne by the defendant.
  256         (11)(a) A person who owns or coowns but who was not
  257  operating the motor vehicle when a violation of this section was
  258  committed may petition the sentencing court for an order setting
  259  aside the impoundment or immobilization order. In support of the
  260  petition, the person must submit to the sentencing court a
  261  police report demonstrating that the motor vehicle was stolen at
  262  the time the violation of this section was committed or
  263  documentation showing that the vehicle was purchased after the
  264  offense was committed from a person other than the defendant or
  265  the defendant's agent. If the court finds that the vehicle was
  266  stolen or that the sale was not made to circumvent the order of
  267  impoundment or immobilization, the order of impoundment or
  268  immobilization shall be set aside and the vehicle returned to
  269  the owner. If the owner of the vehicle prevails, he or she is
  270  not liable for costs.
  271         (b) The court shall dismiss the order of impoundment or
  272  immobilization if the court finds that the family of the owner
  273  of the vehicle has no other private or public means of
  274  transportation.
  275         Section 2. Paragraph (a) of subsection (2) of section
  276  932.701, Florida Statutes, is amended to read:
  277         932.701 Short title; definitions.—
  278         (2) As used in the Florida Contraband Forfeiture Act:
  279         (a) “Contraband article” means:
  280         1. Any controlled substance as defined in chapter 893 or
  281  any substance, device, paraphernalia, or currency or other means
  282  of exchange that was used, was attempted to be used, or was
  283  intended to be used in violation of any provision of chapter
  284  893, if the totality of the facts presented by the state is
  285  clearly sufficient to meet the state's burden of establishing
  286  probable cause to believe that a nexus exists between the
  287  article seized and the narcotics activity, whether or not the
  288  use of the contraband article can be traced to a specific
  289  narcotics transaction.
  290         2. Any gambling paraphernalia, lottery tickets, money,
  291  currency, or other means of exchange which was used, was
  292  attempted, or intended to be used in violation of the gambling
  293  laws of the state.
  294         3. Any equipment, liquid or solid, which was being used, is
  295  being used, was attempted to be used, or intended to be used in
  296  violation of the beverage or tobacco laws of the state.
  297         4. Any motor fuel upon which the motor fuel tax has not
  298  been paid as required by law.
  299         5. Any personal property, including, but not limited to,
  300  any vessel, aircraft, item, object, tool, substance, device,
  301  weapon, machine, vehicle of any kind, money, securities, books,
  302  records, research, negotiable instruments, or currency, which
  303  was used or was attempted to be used as an instrumentality in
  304  the commission of, or in aiding or abetting in the commission
  305  of, any felony, whether or not comprising an element of the
  306  felony, or which is acquired by proceeds obtained as a result of
  307  a violation of the Florida Contraband Forfeiture Act.
  308         6. Any real property, including any right, title,
  309  leasehold, or other interest in the whole of any lot or tract of
  310  land, which was used, is being used, or was attempted to be used
  311  as an instrumentality in the commission of, or in aiding or
  312  abetting in the commission of, any felony, or which is acquired
  313  by proceeds obtained as a result of a violation of the Florida
  314  Contraband Forfeiture Act.
  315         7. Any personal property, including, but not limited to,
  316  equipment, money, securities, books, records, research,
  317  negotiable instruments, currency, or any vessel, aircraft, item,
  318  object, tool, substance, device, weapon, machine, or vehicle of
  319  any kind in the possession of or belonging to any person who
  320  takes aquaculture products in violation of s. 812.014(2)(c).
  321         8. Any motor vehicle offered for sale in violation of s.
  322  320.28.
  323         9. Any motor vehicle used during the course of committing
  324  an offense in violation of s. 322.34(8)(a) s. 322.34(9)(a).
  325         10. Any photograph, film, or other recorded image,
  326  including an image recorded on videotape, a compact disc,
  327  digital tape, or fixed disk, that is recorded in violation of s.
  328  810.145 and is possessed for the purpose of amusement,
  329  entertainment, sexual arousal, gratification, or profit, or for
  330  the purpose of degrading or abusing another person.
  331         11. Any real property, including any right, title,
  332  leasehold, or other interest in the whole of any lot or tract of
  333  land, which is acquired by proceeds obtained as a result of
  334  Medicaid fraud under s. 409.920 or s. 409.9201; any personal
  335  property, including, but not limited to, equipment, money,
  336  securities, books, records, research, negotiable instruments, or
  337  currency; or any vessel, aircraft, item, object, tool,
  338  substance, device, weapon, machine, or vehicle of any kind in
  339  the possession of or belonging to any person which is acquired
  340  by proceeds obtained as a result of Medicaid fraud under s.
  341  409.920 or s. 409.9201.
  342         Section 3. This act shall take effect July 1, 2009.