Bill Summary – FastDemocracy

       Florida Senate - 2023                                     SB 448
       
       
        
       By Senator Berman
       
       
       
       
       
       26-00065E-23                                           2023448__
                      A bill to be entitled                      
       An act relating to operating vehicles and vessels
       under the influence; 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 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 âimpairing substanceâ; providing
       construction; amending s. 933.02, F.S.; adding
       specified grounds for issuance of a search warrant;
       amending ss. 316.1932 and 316.1933, F.S.; conforming
       cross-references; providing an effective date.
        
Be It Enacted by the Legislature of the State of Florida:

       Section 1.â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, subsections (1) and (9) of that
section are amended, and subsection (2) of that section is
republished, to read:
       316.193âDriving under the influence; penalties.â
       (1)(a)â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)â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 personâs normal faculties are impaired;
       2.(b)âThe person has a blood-alcohol level of 0.08 or more
grams of alcohol per 100 milliliters of blood; or
       3.(c)âThe person has a breath-alcohol level of 0.08 or more
grams of alcohol per 210 liters of breath; or
       4.â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)â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 practitionerâ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)â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.âBy a fine of:
       a.âNot less than $500 or more than $1,000 for a first
conviction.
       b.âNot less than $1,000 or more than $2,000 for a second
conviction; and
       2.âBy imprisonment for:
       a.âNot more than 6 months for a first conviction.
       b.âNot more than 9 months for a second conviction.
       3.âFor a second conviction, by mandatory placement for a
period of at least 1 year, at the convicted personâ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.â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 personâ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.â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 personâ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.â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)âIn addition to the penalties in paragraph (a), the
court may order placement, at the convicted personâ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.
       (9)âA person who is arrested for a violation of this
section may not be released from custody:
       (a)â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)âUntil the personâs blood-alcohol level or breath
alcohol level is less than 0.05; or
       (c)âUntil 8 hours have elapsed from the time the person was
arrested.
       (14)âAs used in this chapter, the term:
       (c)ââImpairing substanceâ means any substance that, when
taken into the human body, can impair, or diminish in some
material respect, a personâs normal faculties. Such normal
faculties include, but are not limited to, the ability to see,
hear, walk, talk, judge distances, drive a motor vehicle, make
judgments, act in emergencies, and, in general, normally perform
the many mental and physical acts of daily life.
       Section 2.âSubsections (1) and (8) of section 327.35,
Florida Statutes, are amended, subsection (11) is added to that
section, and subsection (2) of that section is republished, to
read:
       327.35âBoating under the influence; penalties; âdesignated
drivers.ââ
       (1)(a)â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 within this
state and:
       1.(a)â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 personâs normal faculties are impaired;
       2.(b)âThe person has a blood-alcohol level of 0.08 or more
grams of alcohol per 100 milliliters of blood; or
       3.(c)âThe person has a breath-alcohol level of 0.08 or more
grams of alcohol per 210 liters of breath; or
       4.â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 operating.
       (b)â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 practitionerâ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)â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.âBy a fine of:
       a.âNot less than $500 or more than $1,000 for a first
conviction.
       b.âNot less than $1,000 or more than $2,000 for a second
conviction; and
       2.âBy imprisonment for:
       a.âNot more than 6 months for a first conviction.
       b.âNot more than 9 months for a second conviction.

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.â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.
       2.â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.
       3.â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 not be less than $2,000. The portion of such fine
imposed in excess of $1,000 shall be remitted by the clerk to
the Department of Revenue for deposit into the General Revenue
Fund.
       (8)âA person who is arrested for a violation of this
section may not be released from custody:
       (a)â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)âUntil the personâs blood-alcohol level or breath
alcohol level is less than 0.05; or
       (c)âUntil 8 hours have elapsed from the time the person was
arrested.
       (11)âAs used in this section, the term âimpairing
substanceâ means any substance that, when taken into the human
body, can impair, or diminish in some material respect, a
personâs normal faculties. Such normal faculties include, but
are not limited to, the ability to see, hear, walk, talk, judge
distances, operate a vessel, make judgments, act in emergencies,
and, in general, normally perform the many mental and physical
acts of daily life.
       Section 3.âSection 933.02, Florida Statutes, is amended to
read:
       933.02âGrounds for issuance of search warrant.âUpon proper
affidavits being made, a search warrant may be issued under the
provisions of this chapter upon any of the following grounds:
       (1)âWhen the property shall have been stolen or embezzled
in violation of law;
       (2)âWhen any property shall have been used:
       (a)âAs a means to commit any crime;
       (b)âIn connection with gambling, gambling implements and
appliances; or
       (c)âIn violation of s. 847.011 or other laws in reference
to obscene prints and literature;
       (3)âWhen any property constitutes evidence relevant to
proving that a felony has been committed;
       (4)âWhen any property is being held or possessed:
       (a)âIn violation of any of the laws prohibiting the
manufacture, sale, and transportation of intoxicating liquors;
       (b)âIn violation of the fish and game laws;
       (c)âIn violation of the laws relative to food and drug; or
       (d)âIn violation of the laws relative to citrus disease
pursuant to s. 581.184; or
       (5)âWhen the laws in relation to cruelty to animals, as
provided in chapter 828, have been or are violated in any
particular building or place; or
       (6)âWhen a sample of the blood of a person constitutes
evidence relevant to proving that a violation of s. 316.193 or
s. 327.35 has been committed.

This section also applies to any papers or documents used as a
means of or in aid of the commission of any offense against the
laws of the state.
       Section 4.âParagraph (f) of subsection (1) of section
316.1932, Florida Statutes, is amended to read:
       316.1932âTests for alcohol, chemical substances, or
controlled substances; implied consent; refusal.â
       (1)
       (f)1.âThe tests determining the weight of alcohol in the
defendantâs blood or breath shall be administered at the request
of a law enforcement officer substantially in accordance with
rules of the Department of Law Enforcement. Such rules must
specify precisely the test or tests that are approved by the
Department of Law Enforcement for reliability of result and ease
of administration, and must provide an approved method of
administration which must be followed in all such tests given
under this section. However, the failure of a law enforcement
officer to request the withdrawal of blood does not affect the
admissibility of a test of blood withdrawn for medical purposes.
       2.a.âOnly a physician, certified paramedic, registered
nurse, licensed practical nurse, other personnel authorized by a
hospital to draw blood, or duly licensed clinical laboratory
director, supervisor, technologist, or technician, acting at the
request of a law enforcement officer, may withdraw blood for the
purpose of determining its alcoholic content or the presence of
chemical substanc