Florida Senate - 2024                              CS for SB 232
       
       
        
       By the Committee on Criminal Justice; and Senator Wright
       
       
       
       
       
       591-02390-24                                           2024232c1
    1                        A bill to be entitled                      
    2         An act relating to driving under the influence;
    3         amending s. 316.1932, F.S.; requiring that a person be
    4         told that his or her failure to submit to a lawful
    5         test of breath or urine is a second degree misdemeanor
    6         or a first degree misdemeanor under certain
    7         circumstances; making technical changes; amending s.
    8         316.1939, F.S.; classifying a person’s refusal to
    9         submit to a chemical or physical test of breath or
   10         urine as a second degree misdemeanor or a first degree
   11         misdemeanor under certain circumstances; making
   12         technical changes; creating s. 316.19395, F.S.;
   13         authorizing judicial circuits to create a driving
   14         under the influence diversion program; requiring that
   15         the policies and procedures of the diversion program
   16         be published on the website of the state attorney’s
   17         office; requiring each judicial circuit operating such
   18         a diversion program to submit participant information
   19         for persons who successfully complete the program to
   20         the Department of Highway Safety and Motor Vehicles;
   21         requiring the department to notate successful
   22         completion on the driving record of such participants;
   23         providing that a person who successfully completes
   24         such a diversion program is ineligible for
   25         participation in such a program in the future;
   26         amending s. 316.656, F.S.; prohibiting a court from
   27         suspending, deferring, or withholding adjudication of
   28         guilt or imposition of sentence for a specified
   29         violation; amending s. 322.34, F.S.; providing
   30         penalties for specified violations of driving while a
   31         license or driving privilege is canceled, suspended,
   32         or revoked or under suspension or revocation
   33         equivalent status; making technical changes; providing
   34         an effective date.
   35          
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Paragraph (a) of subsection (1) of section
   39  316.1932, Florida Statutes, is amended to read:
   40         316.1932 Tests for alcohol, chemical substances, or
   41  controlled substances; implied consent; refusal.—
   42         (1)(a)1.a. A person who accepts the privilege extended by
   43  the laws of this state of operating a motor vehicle within this
   44  state is, by operating such vehicle, deemed to have given his or
   45  her consent to submit to an approved chemical test or physical
   46  test including, but not limited to, an infrared light test of
   47  his or her breath for the purpose of determining the alcoholic
   48  content of his or her blood or breath if the person is lawfully
   49  arrested for any offense allegedly committed while the person
   50  was driving or was in actual physical control of a motor vehicle
   51  while under the influence of alcoholic beverages. The chemical
   52  or physical breath test must be incidental to a lawful arrest
   53  and administered at the request of a law enforcement officer who
   54  has reasonable cause to believe such person was driving or was
   55  in actual physical control of the motor vehicle within this
   56  state while under the influence of alcoholic beverages. The
   57  administration of a breath test does not preclude the
   58  administration of another type of test. The person must shall be
   59  told that his or her failure to submit to any lawful test of his
   60  or her breath will result in the suspension of his or her the
   61  person’s privilege to operate a motor vehicle as provided in s.
   62  322.2615(1)(a) for a period of 1 year for a first refusal, or
   63  for a period of 18 months if the driving privilege of such
   64  person has been previously suspended or if he or she has
   65  previously been fined under s. 327.35215 as a result of a
   66  refusal to submit to a test or tests required under this chapter
   67  or chapter 327, and must shall also be told that if he or she
   68  refuses to submit to a lawful test of his or her breath and his
   69  or her driving privilege has been previously suspended or if he
   70  or she has previously been fined under s. 327.35215 for a prior
   71  refusal to submit to a lawful test of his or her breath, urine,
   72  or blood as required under this chapter or chapter 327, he or
   73  she commits a misdemeanor of the second first degree, punishable
   74  as provided in s. 775.082 or s. 775.083, or a misdemeanor of the
   75  first degree, punishable as provided in s. 775.082 or s.
   76  775.083, if his or her driving privilege has been previously
   77  suspended or if he or she has previously been fined under s.
   78  327.35215 for a prior refusal to submit to a lawful test of his
   79  or her breath, urine, or blood as required under this chapter or
   80  chapter 327, in addition to any other penalties provided by law.
   81  The refusal to submit to a chemical or physical breath test upon
   82  the request of a law enforcement officer as provided in this
   83  section is admissible into evidence in any criminal proceeding.
   84         b. A person who accepts the privilege extended by the laws
   85  of this state of operating a motor vehicle within this state is,
   86  by operating such vehicle, deemed to have given his or her
   87  consent to submit to a urine test for the purpose of detecting
   88  the presence of chemical substances as set forth in s. 877.111
   89  or controlled substances if the person is lawfully arrested for
   90  any offense allegedly committed while the person was driving or
   91  was in actual physical control of a motor vehicle while under
   92  the influence of chemical substances or controlled substances.
   93  The urine test must be incidental to a lawful arrest and
   94  administered at a detention facility or any other facility,
   95  mobile or otherwise, which is equipped to administer such tests
   96  at the request of a law enforcement officer who has reasonable
   97  cause to believe such person was driving or was in actual
   98  physical control of a motor vehicle within this state while
   99  under the influence of chemical substances or controlled
  100  substances. The urine test must shall be administered at a
  101  detention facility or any other facility, mobile or otherwise,
  102  which is equipped to administer such test in a reasonable manner
  103  that will ensure the accuracy of the specimen and maintain the
  104  privacy of the individual involved. The administration of a
  105  urine test does not preclude the administration of another type
  106  of test. The person must shall be told that his or her failure
  107  to submit to any lawful test of his or her urine will result in
  108  the suspension of his or her the person’s privilege to operate a
  109  motor vehicle for a period of 1 year for the first refusal, or
  110  for a period of 18 months if the driving privilege of such
  111  person has been previously suspended or if he or she has
  112  previously been fined under s. 327.35215 as a result of a
  113  refusal to submit to a test or tests required under this chapter
  114  or chapter 327, and must shall also be told that if he or she
  115  refuses to submit to a lawful test of his or her urine and his
  116  or her driving privilege has been previously suspended or if he
  117  or she has previously been fined under s. 327.35215 for a prior
  118  refusal to submit to a lawful test of his or her breath, urine,
  119  or blood as required under this chapter or chapter 327, he or
  120  she commits a misdemeanor of the second first degree, punishable
  121  as provided in s. 775.082 or s. 775.083, or a misdemeanor of the
  122  first degree, punishable as provided in s. 775.082 or s.
  123  775.083, if his or her driving privilege has been previously
  124  suspended or if he or she has previously been fined under s.
  125  327.35215 for a prior refusal to submit to a lawful test of his
  126  or her breath, urine, or blood as required under this chapter or
  127  chapter 327, in addition to any other penalties provided by law.
  128  The refusal to submit to a urine test upon the request of a law
  129  enforcement officer as provided in this section is admissible
  130  into evidence in any criminal proceeding.
  131         2. The Alcohol Testing Program within the Department of Law
  132  Enforcement is responsible for the regulation of the operation,
  133  inspection, and registration of breath test instruments utilized
  134  under the driving and boating under the influence provisions and
  135  related provisions located in this chapter and chapters 322 and
  136  327. The program is responsible for the regulation of the
  137  individuals who operate, inspect, and instruct on the breath
  138  test instruments utilized in the driving and boating under the
  139  influence provisions and related provisions located in this
  140  chapter and chapters 322 and 327. The program is further
  141  responsible for the regulation of blood analysts who conduct
  142  blood testing to be utilized under the driving and boating under
  143  the influence provisions and related provisions located in this
  144  chapter and chapters 322 and 327. The program shall:
  145         a. Establish uniform criteria for the issuance of permits
  146  to breath test operators, agency inspectors, instructors, blood
  147  analysts, and instruments.
  148         b. Have the authority to permit breath test operators,
  149  agency inspectors, instructors, blood analysts, and instruments.
  150         c. Have the authority to discipline and suspend, revoke, or
  151  renew the permits of breath test operators, agency inspectors,
  152  instructors, blood analysts, and instruments.
  153         d. Establish uniform requirements for instruction and
  154  curricula for the operation and inspection of approved
  155  instruments.
  156         e. Have the authority to specify one approved curriculum
  157  for the operation and inspection of approved instruments.
  158         f. Establish a procedure for the approval of breath test
  159  operator and agency inspector classes.
  160         g. Have the authority to approve or disapprove breath test
  161  instruments and accompanying paraphernalia for use pursuant to
  162  the driving and boating under the influence provisions and
  163  related provisions located in this chapter and chapters 322 and
  164  327.
  165         h. With the approval of the executive director of the
  166  Department of Law Enforcement, make and enter into contracts and
  167  agreements with other agencies, organizations, associations,
  168  corporations, individuals, or federal agencies as are necessary,
  169  expedient, or incidental to the performance of duties.
  170         i. Issue final orders which include findings of fact and
  171  conclusions of law and which constitute final agency action for
  172  the purpose of chapter 120.
  173         j. Enforce compliance with this section through civil or
  174  administrative proceedings.
  175         k. Make recommendations concerning any matter within the
  176  purview of this section, this chapter, chapter 322, or chapter
  177  327.
  178         l. Adopt Promulgate rules for the administration and
  179  implementation of this section, including definitions of terms.
  180         m. Consult and cooperate with other entities for the
  181  purpose of implementing the mandates of this section.
  182         n. Have the authority to approve the type of blood test
  183  utilized under the driving and boating under the influence
  184  provisions and related provisions located in this chapter and
  185  chapters 322 and 327.
  186         o. Have the authority to specify techniques and methods for
  187  breath alcohol testing and blood testing utilized under the
  188  driving and boating under the influence provisions and related
  189  provisions located in this chapter and chapters 322 and 327.
  190         p. Have the authority to approve repair facilities for the
  191  approved breath test instruments, including the authority to set
  192  criteria for approval.
  193  
  194  Nothing in this section shall be construed to supersede
  195  provisions in this chapter and chapters 322 and 327. The
  196  specifications in this section are derived from the power and
  197  authority previously and currently possessed by the Department
  198  of Law Enforcement and are enumerated to conform with the
  199  mandates of chapter 99-379, Laws of Florida.
  200         Section 2. Section 316.1939, Florida Statutes, is amended
  201  to read:
  202         316.1939 Refusal to submit to testing; penalties.—
  203         (1) A person who has refused to submit to a chemical or
  204  physical test of his or her breath or urine, as described in s.
  205  316.1932, commits a misdemeanor of the second degree, punishable
  206  as provided in s. 775.082 or s. 775.083, in addition to any
  207  other penalties provided by law, and such person whose driving
  208  privilege was previously suspended or who was previously fined
  209  under s. 327.35215 for a prior refusal to submit to a lawful
  210  test of his or her breath, urine, or blood required under this
  211  chapter or chapter 327 commits a misdemeanor of the first
  212  degree, punishable as provided in s. 775.082 or s. 775.083, in
  213  addition to any other penalties provided by law if all of the
  214  following apply, and:
  215         (a) Who The arresting law enforcement officer had probable
  216  cause to believe that the person was driving or in actual
  217  physical control of a motor vehicle in this state while under
  218  the influence of alcoholic beverages, chemical substances, or
  219  controlled substances.;
  220         (b) The person Who was placed under lawful arrest for a
  221  violation of s. 316.193, unless such test was requested pursuant
  222  to s. 316.1932(1)(c).;
  223         (c) The person Who was informed that, if he or she refused
  224  to submit to such test, his or her privilege to operate a motor
  225  vehicle would be suspended for a period of 1 year or, in the
  226  case of a second or subsequent refusal, for a period of 18
  227  months.;
  228         (d) The person, after having been informed as required in
  229  paragraph (c), still refuses Who was informed that a refusal to
  230  submit to a lawful test of his or her breath or urine as
  231  described in s. 316.1932, if his or her driving privilege has
  232  been previously suspended or if he or she has previously been
  233  fined under s. 327.35215 for a prior refusal to submit to a
  234  lawful test of his or her breath, urine, or blood as required
  235  under this chapter or chapter 327, is a misdemeanor of the first
  236  degree, punishable as provided in s. 775.082 or s. 775.083, in
  237  addition to any other penalties provided by law; and
  238         (e) Who, after having been so informed, refused to submit
  239  to any such test when requested to do so by a law enforcement
  240  officer or correctional officer
  241  
  242  commits a misdemeanor of the first degree and is subject to
  243  punishment as provided in s. 775.082 or s. 775.083.
  244         (2) The disposition of any administrative proceeding that
  245  relates to the suspension of a person’s driving privilege does
  246  not affect a criminal action under this section.
  247         (3) The disposition of a criminal action under this section
  248  does not affect any administrative proceeding that relates to
  249  the suspension of a person’s driving privilege. The department’s
  250  records showing that a person’s license has been previously
  251  suspended for a prior refusal to submit to a lawful test of his
  252  or her breath, urine, or blood are shall be admissible and
  253  create shall create a rebuttable presumption of such suspension.
  254         Section 3. Section 316.19395, Florida Statutes, is created
  255  to read:
  256         316.19395Driving under the influence diversion programs.—
  257         (1) Any judicial circuit may create a driving under the
  258  influence diversion program. A judicial circuit that creates
  259  such a diversion program shall publish the terms and conditions
  260  of the program on the website of the office of the state
  261  attorney for that circuit.
  262         (2) Each judicial circuit that offers a diversion program
  263  under this section shall notify the department of each person
  264  who successfully completes the program. The department shall
  265  notate the successful completion of participation in the
  266  diversion program on the driving record of each such person.
  267         (3) A person who successfully completes such a diversion
  268  program is ineligible for future participation in such a
  269  program.
  270         Section 4. Subsection (1) of section 316.656, Florida
  271  Statutes, is amended to read:
  272         316.656 Mandatory adjudication; prohibition against
  273  accepting plea to lesser included offense.—
  274         (1) Notwithstanding the provisions of s. 948.01, a court
  275  may not no court may suspend, defer, or withhold adjudication of
  276  guilt or imposition of sentence for any violation of s. 316.193
  277  or s. 316.1939, for manslaughter resulting from the operation of
  278  a motor vehicle, or for vehicular homicide.
  279         Section 5. Subsection (2) of section 322.34, Florida
  280  Statutes, is amended to read:
  281         322.34 Driving while license suspended, revoked, canceled,
  282  or disqualified.—
  283         (2) Any person whose driver license or driving privilege
  284  has been canceled, suspended, or revoked as provided by law, or
  285  who does not have a driver license or driving privilege but is
  286  under suspension or revocation equivalent status as defined in
  287  s. 322.01(42), except persons defined in s. 322.264, who,
  288  knowing of such cancellation, suspension, revocation, or
  289  suspension or revocation equivalent status, drives any motor
  290  vehicle upon the highways of this state while such license or
  291  privilege is canceled, suspended, or revoked, or while under
  292  suspension or revocation equivalent status, commits:
  293         (a) A misdemeanor of the second degree, punishable as
  294  provided in s. 775.082 or s. 775.083.
  295         (b)1. A misdemeanor of the first degree, punishable as
  296  provided in s. 775.082 or s. 775.083, upon a second or
  297  subsequent conviction, except as provided in paragraph (c).
  298         2. A person convicted of a third or subsequent conviction,
  299  except as provided in paragraph (c), must serve a minimum of 10
  300  days in jail.
  301         (c) A felony of the third degree, punishable as provided in
  302  s. 775.082, s. 775.083, or s. 775.084, upon a third or
  303  subsequent conviction if the current violation of this section
  304  or the most recent prior violation of the section is related to
  305  driving while license canceled, suspended, revoked, or
  306  suspension or revocation equivalent status resulting from a
  307  violation of:
  308         1. Driving under the influence. A person to whom this
  309  subparagraph applies must serve a minimum of 30 days in jail
  310  upon a first conviction, a minimum of 60 days in jail upon a
  311  second conviction, and a minimum of 90 days in jail upon a third
  312  or subsequent conviction;
  313         2. Refusal to submit to a urine, breath-alcohol, or blood
  314  alcohol test. A person to whom this subparagraph applies must
  315  serve a minimum of 30 days in jail upon a first conviction, a
  316  minimum of 60 days in jail upon a second conviction, and a
  317  minimum of 90 days in jail upon a third or subsequent
  318  conviction;
  319         3. A traffic offense causing death or serious bodily
  320  injury; or
  321         4. Fleeing or eluding.
  322  
  323  The element of knowledge is satisfied if the person has been
  324  previously cited as provided in subsection (1); or the person
  325  admits to knowledge of the cancellation, suspension, or
  326  revocation, or suspension or revocation equivalent status; or
  327  the person received notice as provided in subsection (4). There
  328  is shall be a rebuttable presumption that the knowledge
  329  requirement is satisfied if a judgment or an order as provided
  330  in subsection (4) appears in the department’s records for any
  331  case except for one involving a suspension by the department for
  332  failure to pay a traffic fine or for a financial responsibility
  333  violation.
  334         Section 6. This act shall take effect October 1, 2024.