Bill Summary – FastDemocracy

       Florida Senate - 2024                                    SB 1172
       
       
        
       By Senator Berman
       
       
       
       
       
       26-00563C-24                                          20241172__
                      A bill to be entitled                      
       An act relating to operating vehicles and vessels
       under the influence; amending s. 316.003, F.S.;
       defining the term “actual physical control”; amending
       ss. 316.193 and 327.35, F.S.; revising conditions
       under which a person commits the offense of driving
       under the influence or boating under the influence,
       respectively; providing an affirmative defense;
       revising criminal penalties; conforming provisions to
       changes made by the act; revising a condition that
       must be met before a person arrested for driving under
       the influence or boating under the influence,
       respectively, may be released from custody; defining
       the term “impairing substance”; providing
       construction; authorizing law enforcement witnesses to
       give certain testimony under certain circumstances;
       defining the term “conviction” for a specified
       purpose; requiring the clerk of court to notify the
       Department of Law Enforcement under certain
       circumstances; requiring the department to maintain
       records; creating a rebuttable presumption; amending
       s. 316.1939, F.S.; providing that the disposition of
       an administrative proceeding relating to a specified
       fine does not affect certain criminal action; revising
       a rebuttable presumption of suspended driving
       privileges; amending s. 316.645, F.S.; making
       technical changes; amending ss. 322.01 and 327.02,
       F.S.; defining the term “actual physical control”;
       amending s. 327.359, F.S.; providing that the
       disposition of any administrative proceeding relating
       to a specified fine or the suspension of driving
       privileges does not affect certain criminal action;
       providing that the disposition of certain criminal
       action does not affect certain administrative
       hearings; creating a rebuttable presumption; amending
       s. 933.02, F.S.; adding specified grounds for issuance
       of a search warrant; amending s. 948.15, F.S.;
       revising probation guidelines for felonies in which
       certain substances are contributing factors; amending
       ss. 212.05, 316.1932, 316.1933, 316.303, 316.305,
       316.306, 316.85, 322.18, 322.34, 322.61, 327.391,
       327.53, 627.749, 655.960, and 921.0022, F.S.;
       conforming cross-references and provisions to changes
       made by the act; reenacting s. 947.146(3)(j), F.S.,
       relating to the Control Release Authority, to
       incorporate the amendments made by this act to s.
       316.193, F.S., in a reference thereto; providing an
       effective date.
        
Be It Enacted by the Legislature of the State of Florida:

       Section 1. Present subsections (1) through (111) of section
316.003, Florida Statutes, are redesignated as subsections (2)
through (112), respectively, a new subsection (1) is added to
that section, and present subsection (64) of that section is
amended, to read:
       316.003 Definitions.—The following words and phrases, when
used in this chapter, shall have the meanings respectively
ascribed to them in this section, except where the context
otherwise requires:
       (1) ACTUAL PHYSICAL CONTROL.—Being physically in or on a
motor vehicle and having the capability to operate the vehicle,
regardless of whether the vehicle is actually being operated at
that time.
       (65)(64) PRIVATE ROAD OR DRIVEWAY.—Except as otherwise
provided in paragraph (90)(b) (89)(b), any privately owned way
or place used for vehicular travel by the owner and those having
express or implied permission from the owner, but not by other
persons.
       Section 2. Present paragraphs (c) and (d) of subsection
(14) of section 316.193, Florida Statutes, are redesignated as
paragraphs (d) and (e), respectively, a new paragraph (c) is
added to that subsection and subsections (15) through (19) are
added to that section, subsections (1), (3), and (9) of that
section are amended, and subsection (2) of that section is
republished, to read:
       316.193 Driving under the influence; penalties.—
       (1)(a) A person commits is guilty of the offense of driving
under the influence and is subject to punishment as provided in
subsection (2) if the person is driving or in actual physical
control of a vehicle within this state and:
       1.(a) The person is under the influence of alcoholic
beverages, any chemical substance set forth in s. 877.111, or
any substance controlled under chapter 893, or any other
impairing substance, or any combination thereof, when affected
to the extent that the person’s normal faculties are impaired;
       2.(b) At the time of driving or while in actual physical
control of the vehicle or at any time thereafter, the person has
a blood-alcohol level of 0.08 or more grams of alcohol per 100
milliliters of blood as a result of consuming alcohol before or
during driving; or
       3.(c) At the time of driving or while in actual physical
control of the vehicle or at any time thereafter, the person has
a breath-alcohol level of 0.08 or more grams of alcohol per 210
liters of breath as a result of consuming alcohol before or
during driving; or
       4. The person has in his or her blood any amount of a
chemical substance set forth in s. 877.111 or a substance
controlled under chapter 893, or such chemical or controlled
substance in any combination with alcohol as a result of
consuming alcohol before or during driving.
       (b) It is an affirmative defense as to the presence of a
chemical or controlled substance under subparagraph (a)4. that
the person ingested, injected, or inhaled the substance in
accordance with a valid prescription issued pursuant to s.
893.04 by a practitioner as defined in s. 893.02, or pursuant to
s. 381.986, and in accordance with the practitioner’s
directions. However, the fact that a person is or was legally
entitled to consume alcohol or any other chemical or controlled
substance, medication, drug, or other impairing substance is not
an affirmative defense to this section.
       (2)(a) Except as provided in paragraph (b), subsection (3),
or subsection (4), any person who is convicted of a violation of
subsection (1) shall be punished:
       1. By a fine of:
       a. Not less than $500 or more than $1,000 for a first
conviction.
       b. Not less than $1,000 or more than $2,000 for a second
conviction; and
       2. By imprisonment for:
       a. Not more than 6 months for a first conviction.
       b. Not more than 9 months for a second conviction.
       3. For a second conviction, by mandatory placement for a
period of at least 1 year, at the convicted person’s sole
expense, of an ignition interlock device approved by the
department in accordance with s. 316.1938 upon all vehicles that
are individually or jointly leased or owned and routinely
operated by the convicted person, when the convicted person
qualifies for a permanent or restricted license.

The portion of a fine imposed in excess of $500 pursuant to sub
subparagraph 1.a. and the portion of a fine imposed in excess of
$1,000 pursuant to sub-subparagraph 1.b., shall be remitted by
the clerk to the Department of Revenue for deposit into the
General Revenue Fund.
       (b)1. Any person who is convicted of a third violation of
this section for an offense that occurs within 10 years after a
prior conviction for a violation of this section commits a
felony of the third degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084. In addition, the court shall
order the mandatory placement for a period of not less than 2
years, at the convicted person’s sole expense, of an ignition
interlock device approved by the department in accordance with
s. 316.1938 upon all vehicles that are individually or jointly
leased or owned and routinely operated by the convicted person,
when the convicted person qualifies for a permanent or
restricted license.
       2. Any person who is convicted of a third violation of this
section for an offense that occurs more than 10 years after the
date of a prior conviction for a violation of this section shall
be punished by a fine of not less than $2,000 or more than
$5,000 and by imprisonment for not more than 12 months. The
portion of a fine imposed in excess of $2,500 pursuant to this
subparagraph shall be remitted by the clerk to the Department of
Revenue for deposit into the General Revenue Fund. In addition,
the court shall order the mandatory placement for a period of at
least 2 years, at the convicted person’s sole expense, of an
ignition interlock device approved by the department in
accordance with s. 316.1938 upon all vehicles that are
individually or jointly leased or owned and routinely operated
by the convicted person, when the convicted person qualifies for
a permanent or restricted license.
       3. Any person who is convicted of a fourth or subsequent
violation of this section, regardless of when any prior
conviction for a violation of this section occurred, commits a
felony of the third degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084. However, the fine imposed
for such fourth or subsequent violation may be not less than
$2,000. The portion of a fine imposed in excess of $1,000
pursuant to this subparagraph shall be remitted by the clerk to
the Department of Revenue for deposit into the General Revenue
Fund.
       (c) In addition to the penalties in paragraph (a), the
court may order placement, at the convicted person’s sole
expense, of an ignition interlock device approved by the
department in accordance with s. 316.1938 for at least 6
continuous months upon all vehicles that are individually or
jointly leased or owned and routinely operated by the convicted
person if, at the time of the offense, the person had a blood
alcohol level or breath-alcohol level of .08 or higher.
       (3) Any person:
       (a) Who is in violation of subsection (1);
       (b) Who operates a vehicle; and
       (c) Who, by reason of such operation, causes or contributes
to causing:
       1. Damage to the property or person of another commits a
misdemeanor of the first degree, punishable as provided in s.
775.082 or s. 775.083.
       2. Serious bodily injury to another, as defined in s.
316.1933, commits a felony of the second third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
       3. The death of any human being or unborn child commits DUI
manslaughter, and commits:
       a. a felony of the first second degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.
       b. A felony of the first degree, punishable as provided in
s. 775.082, s. 775.083, or s. 775.084, if:
       (I) At the time of the crash, the person knew, or should
have known, that the crash occurred; and
       (II) The person failed to give information and render aid
as required by s. 316.062.

For purposes of this subsection, the term “unborn child” has the
same meaning as provided in s. 775.021(5). A person who is
convicted of DUI manslaughter shall be sentenced to a mandatory
minimum term of imprisonment of 4 years.
       (9) A person who is arrested for a violation of this
section may not be released from custody:
       (a) Until the person is no longer under the influence of
alcoholic beverages, any chemical substance set forth in s.
877.111, or any substance controlled under chapter 893, or any
other impairing substance, or any combination thereof, and
affected to the extent that his or her normal faculties are
impaired;
       (b) Until the person’s blood-alcohol level or breath
alcohol level is less than 0.05; or
       (c) Until 8 hours have elapsed from the time the person was
arrested.
       (14) As used in this chapter, the term:
       (c) “Impairing substance” means any substance that, when
taken into the human body, can impair, or diminish in some
material respect, a person’s normal faculties. Such normal
faculties include, but are not limited to, the ability to see,
hear, walk, talk, gauge distances, drive a motor vehicle, make
judgments, act in emergencies, and, in general, perform the many
mental and physical acts of daily life.
       (15) Notwithstanding any other law and for the purposes of
prosecutions under this section, the law enforcement officer who
administers a horizontal nystagmus gaze test may give testimony
as a witness on the issue of a person’s impairment, based on the
results of the horizontal gaze nystagmus test, if the officer
has successfully completed training on the horizontal gaze
nystagmus test and if the test is given in accordance with the
individual’s training.
       (16) Notwithstanding any other law, a law enforcement
witness in a criminal prosecution under this section may give
testimony on the issue of impairment relating to whether a
person was under the influence of one or more impairing
substances, and the category or categories of the impairing
substance or substances, if the witness holds current
credentials as a drug recognition expert, issued by the
International Association of Chiefs of Police, at the time of
arrest.
       (17) For the purpose of determining whether a conviction is
a first, second, or third or subsequent conviction for the
purposes of sentencing under this section, the term “conviction”
includes being convicted of a violation of this section, or the
completion of any diversion or other program that results in the
dismissal or change of charge for a violation of this section.
The term also includes being convicted of a violation of any law
or ordinance of another state or jurisdiction which this section
prohibits, or the completion of any diversion or other program
that results in the dismissal or change of charge for a
violation of such law or ordinance of another state or
jurisdiction which this section prohibits.
       (18) The clerk of court shall notify the department of the
dismissal or change of charge for a violation of this section
based on the completion of any diversion or other program. The
department shall maintain a record of a person’s completion of
any diversion or other program that results in a dismissal or
change of charge for a violation of this section.
       (19) There is a rebuttable presumption that a diversion or
other program was completed which results in the dismissal or
change of charge for a violation of this section as provided in
subsection (17) if notation or designation of such completion
appears in the department’s records.
       Section 3. Subsections (1), (3), and (8) of section 327.35,
Florida Statutes, are amended, subsections (11) through (16) are
added to that section, and subsection (2) of that section is
republished, to read:
       327.35 Boating under the influence; penalties; “designated
drivers.”—
       (1)(a) A person commits is guilty of the offense of boating
under the influence and is subject to punishment as provided in
subsection (2) if the person is operating a vessel or in actual
physical control of a vessel within this state and:
       1.(a) The person is under the influence of alcoholic
beverages, any chemical substance set forth in s. 877.111, or
any substance controlled under chapter 893, or any other
impairing substance, or any combination thereof, when affected
to the extent that the person’s normal faculties are impaired;
       2.(b) At the time of operating the vessel or at any time
thereafter, the person has a blood-alcohol level of 0.08 or more
grams of alcohol per 100 milliliters of blood as a result of
consuming alcohol before or during operating; or
       3.(c) At the time of operating the vessel or at any time
thereafter, the person has a breath-alcohol level of 0.08 or
more grams of alcohol per 210 liters of breath as a result of
consuming alcohol before or during operating; or