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Miami DUI Attorney Laws by Statute
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316.193 Driving under the influence; penalties.--
(1) A person 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:
(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, when affected to the extent that the
person's normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of
alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of 0.08 or more grams of
alcohol per 210 liters of breath.
(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 $250 or more than $500 for a first conviction.
b. Not less than $500 or more than $1,000 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 installation of such device may not occur
before July 1, 2003.
(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. The installation
of such device may not occur before July 1, 2003.
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 $1,000 or more than $2,500
and by imprisonment for not more than 12 months. 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.
The installation of such device may not occur before July 1, 2003.
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 $1,000.
(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 third degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
3. The death of any human being commits DUI manslaughter, and
commits:
a. A felony of the 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.
(4) Any person who is convicted of a violation of subsection (1)
and who has a blood-alcohol level or breath-alcohol level of 0.20
or higher, or any person who is convicted of a violation of
subsection (1) and who at the time of the offense was accompanied
in the vehicle by a person under the age of 18 years, shall be
punished:
(a) By a fine of:
1. Not less than $500 or more than $1,000 for a first conviction.
2. Not less than $1,000 or more than $2,000 for a second
conviction.
3. Not less than $2,000 for a third or subsequent conviction.
(b) By imprisonment for:
1. Not more than 9 months for a first conviction.
2. Not more than 12 months for a second conviction.
For the purposes of this subsection, only the instant offense is
required to be a violation of subsection (1) by a person who has a
blood-alcohol level or breath-alcohol level of 0.20 or higher.
(c) In addition to the penalties in paragraphs (a) and (b), the
court shall order the mandatory placement, 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 for up to 6 months for the first
offense and for at least 2 years for a second offense, when the
convicted person qualifies for a permanent or restricted license.
The installation of such device may not occur before July 1, 2003.
(5) The court shall place all offenders convicted of violating
this section on monthly reporting probation and shall require
completion of a substance abuse course conducted by a DUI program
licensed by the department under s. 322.292, which must include a
psychosocial evaluation of the offender. If the DUI program refers
the offender to an authorized substance abuse treatment provider
for substance abuse treatment, in addition to any sentence or fine
imposed under this section, completion of all such education,
evaluation, and treatment is a condition of reporting probation.
The offender shall assume reasonable costs for such education,
evaluation, and treatment. The referral to treatment resulting
from a psychosocial evaluation shall not be waived without a
supporting independent psychosocial evaluation conducted by an
authorized substance abuse treatment provider appointed by the
court, which shall have access to the DUI program's psychosocial
evaluation before the independent psychosocial evaluation is
conducted. The court shall review the results and recommendations
of both evaluations before determining the request for waiver. The
offender shall bear the full cost of this procedure. The term
"substance abuse" means the abuse of alcohol or any substance
named or described in Schedules I through V of s. 893.03. If an
offender referred to treatment under this subsection fails to
report for or complete such treatment or fails to complete the DUI
program substance abuse education course and evaluation, the DUI
program shall notify the court and the department of the failure.
Upon receipt of the notice, the department shall cancel the
offender's driving privilege, notwithstanding the terms of the
court order or any suspension or revocation of the driving
privilege. The department may temporarily reinstate the driving
privilege on a restricted basis upon verification from the DUI
program that the offender is currently participating in treatment
and the DUI education course and evaluation requirement has been
completed. If the DUI program notifies the department of the
second failure to complete treatment, the department shall
reinstate the driving privilege only after notice of completion of
treatment from the DUI program. The organization that conducts the
substance abuse education and evaluation may not provide required
substance abuse treatment unless a waiver has been granted to that
organization by the department. A waiver may be granted only if
the department determines, in accordance with its rules, that the
service provider that conducts the substance abuse education and
evaluation is the most appropriate service provider and is
licensed under chapter 397 or is exempt from such licensure. A
statistical referral report shall be submitted quarterly to the
department by each organization authorized to provide services
under this section.
(6) With respect to any person convicted of a violation of
subsection (1), regardless of any penalty imposed pursuant to
subsection (2), subsection (3), or subsection (4):
(a) For the first conviction, the court shall place the defendant
on probation for a period not to exceed 1 year and, as a condition
of such probation, shall order the defendant to participate in
public service or a community work project for a minimum of 50
hours; or the court may order instead, that any defendant pay an
additional fine of $10 for each hour of public service or
community work otherwise required, if, after consideration of the
residence or location of the defendant at the time public service
or community work is required, payment of the fine is in the best
interests of the state. However, the total period of probation and
incarceration may not exceed 1 year. The court must also, as a
condition of probation, order the impoundment or immobilization of
the vehicle that was operated by or in the actual control of the
defendant or any one vehicle registered in the defendant's name at
the time of impoundment or immobilization, for a period of 10 days
or for the unexpired term of any lease or rental agreement that
expires within 10 days. The impoundment or immobilization must not
occur concurrently with the incarceration of the defendant. The
impoundment or immobilization order may be dismissed in accordance
with paragraph (e), paragraph (f), paragraph (g), or paragraph
(h).
(b) For the second conviction for an offense that occurs within a
period of 5 years after the date of a prior conviction for
violation of this section, the court shall order imprisonment for
not less than 10 days. The court must also, as a condition of
probation, order the impoundment or immobilization of all vehicles
owned by the defendant at the time of impoundment or
immobilization, for a period of 30 days or for the unexpired term
of any lease or rental agreement that expires within 30 days. The
impoundment or immobilization must not occur concurrently with the
incarceration of the defendant and must occur concurrently with
the driver's license revocation imposed under s. 322.28(2)(a)2.
The impoundment or immobilization order may be dismissed in
accordance with paragraph (e), paragraph (f), paragraph (g), or
paragraph (h). At least 48 hours of confinement must be
consecutive.
(c) For the third or subsequent conviction for an offense that
occurs within a period of 10 years after the date of a prior
conviction for violation of this section, the court shall order
imprisonment for not less than 30 days. The court must also, as a
condition of probation, order the impoundment or immobilization of
all vehicles owned by the defendant at the time of impoundment or
immobilization, for a period of 90 days or for the unexpired term
of any lease or rental agreement that expires within 90 days. The
impoundment or immobilization must not occur concurrently with the
incarceration of the defendant and must occur concurrently with
the driver's license revocation imposed under s. 322.28(2)(a)3.
The impoundment or immobilization order may be dismissed in
accordance with paragraph (e), paragraph (f), paragraph (g), or
paragraph (h). At least 48 hours of confinement must be
consecutive.
(d) The court must at the time of sentencing the defendant issue
an order for the impoundment or immobilization of a vehicle.
Within 7 business days after the date that the court issues the
order of impoundment or immobilization, the clerk of the court
must send notice by certified mail, return receipt requested, to
the registered owner of each vehicle, if the registered owner is a
person other than the defendant, and to each person of record
claiming a lien against the vehicle.
(e) A person who owns but was not operating the vehicle when the
offense occurred may submit to the court a police report
indicating that the vehicle was stolen at the time of the offense
or documentation of having purchased the vehicle after the offense
was committed from an entity other than the defendant or the
defendant's agent. If the court finds that the vehicle was stolen
or that the sale was not made to circumvent the order and allow
the defendant continued access to the vehicle, the order must be
dismissed and the owner of the vehicle will incur no costs. If the
court denies the request to dismiss the order of impoundment or
immobilization, the petitioner may request an evidentiary hearing.
(f) A person who owns but was not operating the vehicle when the
offense occurred, and whose vehicle was stolen or who purchased
the vehicle after the offense was committed directly from the
defendant or the defendant's agent, may request an evidentiary
hearing to determine whether the impoundment or immobilization
should occur. If the court finds that either the vehicle was
stolen or the purchase was made without knowledge of the offense,
that the purchaser had no relationship to the defendant other than
through the transaction, and that such purchase would not
circumvent the order and allow the defendant continued access to
the vehicle, the order must be dismissed and the owner of the
vehicle will incur no costs.
(g) The court shall also dismiss the order of impoundment or
immobilization of the vehicle if the court finds that the family
of the owner of the vehicle has no other private or public means
of transportation.
(h) The court may also dismiss the order of impoundment or
immobilization of any vehicles that are owned by the defendant but
that are operated solely by the employees of the defendant or any
business owned by the defendant.
(i) All costs and fees for the impoundment or immobilization,
including the cost of notification, must be paid by the owner of
the vehicle or, if the vehicle is leased or rented, by the person
leasing or renting the vehicle, unless the impoundment or
immobilization order is dismissed. All provisions of s. 713.78
shall apply.
(j) The person who owns a vehicle that is impounded or immobilized
under this paragraph, or a person who has a lien of record against
such a vehicle and who has not requested a review of the
impoundment pursuant to paragraph (e), paragraph (f), or paragraph
(g), may, within 10 days after the date that person has knowledge
of the location of the vehicle, file a complaint in the county in
which the owner resides to determine whether the vehicle was
wrongfully taken or withheld from the owner or lienholder. Upon
the filing of a complaint, the owner or lienholder may have the
vehicle released by posting with the court a bond or other
adequate security equal to the amount of the costs and fees for
impoundment or immobilization, including towing or storage, to
ensure the payment of such costs and fees if the owner or
lienholder does not prevail. When the bond is posted and the fee
is paid as set forth in s. 28.24, the clerk of the court shall
issue a certificate releasing the vehicle. At the time of release,
after reasonable inspection, the owner or lienholder must give a
receipt to the towing or storage company indicating any loss or
damage to the vehicle or to the contents of the vehicle.
(k) A defendant, in the court's discretion, may be required to
serve all or any portion of a term of imprisonment to which the
defendant has been sentenced pursuant to this section in a
residential alcoholism treatment program or a residential drug
abuse treatment program. Any time spent in such a program must be
credited by the court toward the term of imprisonment.
For the purposes of this section, any conviction for a violation
of s. 327.35; a previous conviction for the violation of former s.
316.1931, former s. 860.01, or former s. 316.028; or a previous
conviction outside this state for driving under the influence,
driving while intoxicated, driving with an unlawful blood-alcohol
level, driving with an unlawful breath-alcohol level, or any other
similar alcohol-related or drug-related traffic offense, is also
considered a previous conviction for violation of this section.
However, in satisfaction of the fine imposed pursuant to this
section, the court may, upon a finding that the defendant is
financially unable to pay either all or part of the fine, order
that the defendant participate for a specified additional period
of time in public service or a community work project in lieu of
payment of that portion of the fine which the court determines the
defendant is unable to pay. In determining such additional
sentence, the court shall consider the amount of the unpaid
portion of the fine and the reasonable value of the services to be
ordered; however, the court may not compute the reasonable value
of services at a rate less than the federal minimum wage at the
time of sentencing.
(7) A conviction under this section does not bar any civil suit
for damages against the person so convicted.
(8) At the arraignment, or in conjunction with any notice of
arraignment provided by the clerk of the court, the clerk shall
provide any person charged with a violation of this section with
notice that upon conviction the court shall suspend or revoke the
offender's driver's license and that the offender should make
arrangements for transportation at any proceeding in which the
court may take such action. Failure to provide such notice does
not affect the court's suspension or revocation of the offender's
driver's license.
(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 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.
(10) The rulings of the Department of Highway Safety and Motor
Vehicles under s. 322.2615 shall not be considered in any trial
for a violation of this section. Testimony or evidence from the
administrative proceedings or any written statement submitted by a
person in his or her request for administrative review is
inadmissible into evidence or for any other purpose in any
criminal proceeding, unless timely disclosed in criminal discovery
pursuant to Rule 3.220, Florida Rules of Criminal Procedure.
(11) The Department of Highway Safety and Motor Vehicles is
directed to adopt rules providing for the implementation of the
use of ignition interlock devices.
(12) If the records of the Department of Highway Safety and Motor
Vehicles show that the defendant has been previously convicted of
the offense of driving under the influence, that evidence is
sufficient by itself to establish that prior conviction for
driving under the influence. However, such evidence may be
contradicted or rebutted by other evidence. This presumption may
be considered along with any other evidence presented in deciding
whether the defendant has been previously convicted of the offense
of driving under the influence.
History.--s. 1, ch. 71-135; s. 19, ch. 73-331; s. 1, ch. 74-384;
s. 1, ch. 76-31; s. 1, ch. 79-408; s. 1, ch. 80-343; s. 2, ch.
82-155; s. 1, ch. 82-403; s. 2, ch. 83-187; s. 1, ch. 83-228; s.
1, ch. 84-359; s. 24, ch. 85-167; s. 2, ch. 85-337; s. 1, ch.
86-296; s. 2, ch. 88-5; s. 5, ch. 88-82; s. 8, ch. 88-196; s. 8,
ch. 88-324; s. 60, ch. 88-381; s. 7, ch. 89-3; ss. 1, 18, ch.
91-255; s. 32, ch. 92-78; ss. 1, 11, ch. 93-124; s. 3, ch. 93-246;
s. 1, ch. 94-324; s. 895, ch. 95-148; s. 1, ch. 95-186; s. 4, ch.
95-333; s. 12, ch. 95-408; s. 3, ch. 96-330; s. 2, ch. 96-413; s.
48, ch. 97-100; s. 97, ch. 97-264; s. 25, ch. 97-271; ss. 6, 13,
ch. 98-324; s. 5, ch. 99-234; s. 139, ch. 99-248; s. 4, ch.
2000-313; s. 10, ch. 2000-320; s. 2, ch. 2002-78; s. 1, ch.
2002-263; s. 1, ch. 2004-379.
Note.--Former s. 316.028.
316.1932 Tests for alcohol, chemical substances, or controlled
substances; implied consent; refusal.--
(1)(a)1.a. Any person who accepts the privilege extended by the
laws of this state of operating a motor vehicle within this state
is, by so operating such vehicle, deemed to have given his or her
consent to submit to an approved chemical test or physical test
including, but not limited to, an infrared light test of his or
her breath for the purpose of determining the alcoholic content of
his or her blood or breath if the person is lawfully arrested for
any offense allegedly committed while the person was driving or
was in actual physical control of a motor vehicle while under the
influence of alcoholic beverages. The chemical or physical breath
test must be incidental to a lawful arrest and administered at the
request of a law enforcement officer who has reasonable cause to
believe such person was driving or was in actual physical control
of the motor vehicle within this state while under the influence
of alcoholic beverages. The administration of a breath test does
not preclude the administration of another type of test. The
person shall be told that his or her failure to submit to any
lawful test of his or her breath will result in the suspension of
the person's privilege to operate a motor vehicle for a period of
1 year for a first refusal, or for a period of 18 months if the
driving privilege of such person has been previously suspended as
a result of a refusal to submit to such a test or tests, and shall
also be told that if he or she refuses to submit to a lawful test
of his or her breath and his or her driving privilege has been
previously suspended for a prior refusal to submit to a lawful
test of his or her breath, urine, or blood, he or she commits a
misdemeanor in addition to any other penalties. The refusal to
submit to a chemical or physical breath test upon the request of a
law enforcement officer as provided in this section is admissible
into evidence in any criminal proceeding.
b. Any person who accepts the privilege extended by the laws of
this state of operating a motor vehicle within this state is, by
so operating such vehicle, deemed to have given his or her consent
to submit to a urine test for the purpose of detecting the
presence of chemical substances as set forth in s. 877.111 or
controlled substances if the person is lawfully arrested for any
offense allegedly committed while the person was driving or was in
actual physical control of a motor vehicle while under the
influence of chemical substances or controlled substances. The
urine test must be incidental to a lawful arrest and administered
at a detention facility or any other facility, mobile or
otherwise, which is equipped to administer such tests at the
request of a law enforcement officer who has reasonable cause to
believe such person was driving or was in actual physical control
of a motor vehicle within this state while under the influence of
chemical substances or controlled substances. The urine test shall
be administered at a detention facility or any other facility,
mobile or otherwise, which is equipped to administer such test in
a reasonable manner that will ensure the accuracy of the specimen
and maintain the privacy of the individual involved. The
administration of a urine test does not preclude the
administration of another type of test. The person shall be told
that his or her failure to submit to any lawful test of his or her
urine will result in the suspension of the person's privilege to
operate a motor vehicle for a period of 1 year for the first
refusal, or for a period of 18 months if the driving privilege of
such person has been previously suspended as a result of a refusal
to submit to such a test or tests, and shall also be told that if
he or she refuses to submit to a lawful test of his or her urine
and his or her driving privilege has been previously suspended for
a prior refusal to submit to a lawful test of his or her breath,
urine, or blood, he or she commits a misdemeanor in addition to
any other penalties. The refusal to submit to a urine test upon
the request of a law enforcement officer as provided in this
section is admissible into evidence in any criminal proceeding.
2. The Alcohol Testing Program within the Department of Law
Enforcement is responsible for the regulation of the operation,
inspection, and registration of breath test instruments utilized
under the driving and boating under the influence provisions and
related provisions located in this chapter and chapters 322 and
327. The program is responsible for the regulation of the
individuals who operate, inspect, and instruct on the breath test
instruments utilized in the driving and boating under the
influence provisions and related provisions located in this
chapter and chapters 322 and 327. The program is further
responsible for the regulation of blood analysts who conduct blood
testing to be utilized under the driving and boating under the
influence provisions and related provisions located in this
chapter and chapters 322 and 327. The program shall:
a. Establish uniform criteria for the issuance of permits to
breath test operators, agency inspectors, instructors, blood
analysts, and instruments.
b. Have the authority to permit breath test operators, agency
inspectors, instructors, blood analysts, and instruments.
c. Have the authority to discipline and suspend, revoke, or renew
the permits of breath test operators, agency inspectors,
instructors, blood analysts, and instruments.
d. Establish uniform requirements for instruction and curricula
for the operation and inspection of approved instruments.
e. Have the authority to specify one approved curriculum for the
operation and inspection of approved instruments.
f. Establish a procedure for the approval of breath test operator
and agency inspector classes.
g. Have the authority to approve or disapprove breath test
instruments and accompanying paraphernalia for use pursuant to the
driving and boating under the influence provisions and related
provisions located in this chapter and chapters 322 and 327.
h. With the approval of the executive director of the Department
of Law Enforcement, make and enter into contracts and agreements
with other agencies, organizations, associations, corporations,
individuals, or federal agencies as are necessary, expedient, or
incidental to the performance of duties.
i. Issue final orders which include findings of fact and
conclusions of law and which constitute final agency action for
the purpose of chapter 120.
j. Enforce compliance with the provisions of this section through
civil or administrative proceedings.
k. Make recommendations concerning any matter within the purview
of this section, this chapter, chapter 322, or chapter 327.
l. Promulgate rules for the administration and implementation of
this section, including definitions of terms.
m. Consult and cooperate with other entities for the purpose of
implementing the mandates of this section.
n. Have the authority to approve the type of blood test utilized
under the driving and boating under the influence provisions and
related provisions located in this chapter and chapters 322 and
327.
o. Have the authority to specify techniques and methods for breath
alcohol testing and blood testing utilized under the driving and
boating under the influence provisions and related provisions
located in this chapter and chapters 322 and 327.
p. Have the authority to approve repair facilities for the
approved breath test instruments, including the authority to set
criteria for approval.
Nothing in this section shall be construed to supersede provisions
in this chapter and chapters 322 and 327. The specifications in
this section are derived from the power and authority previously
and currently possessed by the Department of Law Enforcement and
are enumerated to conform with the mandates of chapter 99-379,
Laws of Florida.
(b)1. The blood-alcohol level must be based upon grams of alcohol
per 100 milliliters of blood. The breath-alcohol level must be
based upon grams of alcohol per 210 liters of breath.
2. An analysis of a person's breath, in order to be considered
valid under this section, must have been performed substantially
according to methods approved by the Department of Law
Enforcement. For this purpose, the department may approve
satisfactory techniques or methods. Any insubstantial differences
between approved techniques and actual testing procedures in any
individual case do not render the test or test results invalid.
(c) Any person who accepts the privilege extended by the laws of
this state of operating a motor vehicle within this state is, by
operating such vehicle, deemed to have given his or her consent to
submit to an approved blood test for the purpose of determining
the alcoholic content of the blood or a blood test for the purpose
of determining the presence of chemical substances or controlled
substances as provided in this section if there is reasonable
cause to believe the person was driving or in actual physical
control of a motor vehicle while under the influence of alcoholic
beverages or chemical or controlled substances and the person
appears for treatment at a hospital, clinic, or other medical
facility and the administration of a breath or urine test is
impractical or impossible. As used in this paragraph, the term
"other medical facility" includes an ambulance or other medical
emergency vehicle. The blood test shall be performed in a
reasonable manner. Any person who is incapable of refusal by
reason of unconsciousness or other mental or physical condition is
deemed not to have withdrawn his or her consent to such test. A
blood test may be administered whether or not the person is told
that his or her failure to submit to such a blood test will result
in the suspension of the person's privilege to operate a motor
vehicle upon the public highways of this state and that a refusal
to submit to a lawful test of his or her blood, if his or her
driving privilege has been previously suspended for refusal to
submit to a lawful test of his or her breath, urine, or blood, is
a misdemeanor. Any person who is capable of refusal shall be told
that his or her failure to submit to such a blood test will result
in the suspension of the person's privilege to operate a motor
vehicle for a period of 1 year for a first refusal, or for a
period of 18 months if the driving privilege of the person has
been suspended previously as a result of a refusal to submit to
such a test or tests, and that a refusal to submit to a lawful
test of his or her blood, if his or her driving privilege has been
previously suspended for a prior refusal to submit to a lawful
test of his or her breath, urine, or blood, is a misdemeanor. The
refusal to submit to a blood test upon the request of a law
enforcement officer is admissible in evidence in any criminal
proceeding.
(d) If the arresting officer does not request a chemical or
physical breath test of the person arrested for any offense
allegedly committed while the person was driving or was in actual
physical control of a motor vehicle while under the influence of
alcoholic beverages or controlled substances, such person may
request the arresting officer to have a chemical or physical test
made of the arrested person's breath or a test of the urine or
blood for the purpose of determining the alcoholic content of the
person's blood or breath or the presence of chemical substances or
controlled substances; and, if so requested, the arresting officer
shall have the test performed.
(e)1. By applying for a driver's license and by accepting and
using a driver's license, the person holding the driver's license
is deemed to have expressed his or her consent to the provisions
of this section.
2. A nonresident or any other person driving in a status exempt
from the requirements of the driver's license law, by his or her
act of driving in such exempt status, is deemed to have expressed
his or her consent to the provisions of this section.
3. A warning of the consent provision of this section shall be
printed above the signature line on each new or renewed driver's
license.
(f)1. The tests determining the weight of alcohol in the
defendant'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. 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
substances or controlled substances therein. 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.
b. Notwithstanding any provision of law pertaining to the
confidentiality of hospital records or other medical records, if a
health care provider, who is providing medical care in a health
care facility to a person injured in a motor vehicle crash,
becomes aware, as a result of any blood test performed in the
course of that medical treatment, that the person's blood-alcohol
level meets or exceeds the blood-alcohol level specified in s.
316.193(1)(b), the health care provider may notify any law
enforcement officer or law enforcement agency. Any such notice
must be given within a reasonable time after the health care
provider receives the test result. Any such notice shall be used
only for the purpose of providing the law enforcement officer with
reasonable cause to request the withdrawal of a blood sample
pursuant to this section.
c. The notice shall consist only of the name of the person being
treated, the name of the person who drew the blood, the
blood-alcohol level indicated by the test, and the date and time
of the administration of the test.
d. Nothing contained in s. 395.3025(4), s. 456.057, or any
applicable practice act affects the authority to provide notice
under this section, and the health care provider is not considered
to have breached any duty owed to the person under s. 395.3025(4),
s. 456.057, or any applicable practice act by providing notice or
failing to provide notice. It shall not be a breach of any
ethical, moral, or legal duty for a health care provider to
provide notice or fail to provide notice.
e. A civil, criminal, or administrative action may not be brought
against any person or health care provider participating in good
faith in the provision of notice or failure to provide notice as
provided in this section. Any person or health care provider
participating in the provision of notice or failure to provide
notice as provided in this section shall be immune from any civil
or criminal liability and from any professional disciplinary
action with respect to the provision of notice or failure to
provide notice under this section. Any such participant has the
same immunity with respect to participating in any judicial
proceedings resulting from the notice or failure to provide
notice.
3. The person tested may, at his or her own expense, have a
physician, registered nurse, other personnel authorized by a
hospital to draw blood, or duly licensed clinical laboratory
director, supervisor, technologist, or technician, or other person
of his or her own choosing administer an independent test in
addition to the test administered at the direction of the law
enforcement officer for the purpose of determining the amount of
alcohol in the person's blood or breath or the presence of
chemical substances or controlled substances at the time alleged,
as shown by chemical analysis of his or her blood or urine, or by
chemical or physical test of his or her breath. The failure or
inability to obtain an independent test by a person does not
preclude the admissibility in evidence of the test taken at the
direction of the law enforcement officer. The law enforcement
officer shall not interfere with the person's opportunity to
obtain the independent test and shall provide the person with
timely telephone access to secure the test, but the burden is on
the person to arrange and secure the test at the person's own
expense.
4. Upon the request of the person tested, full information
concerning the test taken at the direction of the law enforcement
officer shall be made available to the person or his or her
attorney.
5. A hospital, clinical laboratory, medical clinic, or similar
medical institution or 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, or other person
assisting a law enforcement officer does not incur any civil or
criminal liability as a result of the withdrawal or analysis of a
blood or urine specimen, or the chemical or physical test of a
person's breath pursuant to accepted medical standards when
requested by a law enforcement officer, regardless of whether or
not the subject resisted administration of the test.
(2) The results of any test administered pursuant to this section
for the purpose of detecting the presence of any controlled
substance shall not be admissible as evidence in a criminal
prosecution for the possession of a controlled substance.
(3) Notwithstanding any provision of law pertaining to the
confidentiality of hospital records or other medical records,
information relating to the alcoholic content of the blood or
breath or the presence of chemical substances or controlled
substances in the blood obtained pursuant to this section shall be
released to a court, prosecuting attorney, defense attorney, or
law enforcement officer in connection with an alleged violation of
s. 316.193 upon request for such information.
History.--s. 3, ch. 82-155; s. 3, ch. 82-403; s. 1, ch. 83-218; s.
4, ch. 83-228; s. 3, ch. 84-359; s. 2, ch. 86-296; s. 3, ch. 88-5;
s. 1, ch. 88-82; s. 2, ch. 91-255; s. 20, ch. 92-58; s. 314, ch.
95-148; s. 4, ch. 96-330; s. 1, ch. 98-27; s. 6, ch. 2000-160; s.
1, ch. 2000-226; s. 2, ch. 2002-263; s. 1, ch. 2003-54.
316.1933 Blood test for impairment or intoxication in cases of
death or serious bodily injury; right to use reasonable force.--
(1)(a) If a law enforcement officer has probable cause to believe
that a motor vehicle driven by or in the actual physical control
of a person under the influence of alcoholic beverages, any
chemical substances, or any controlled substances has caused the
death or serious bodily injury of a human being, a law enforcement
officer shall require the person driving or in actual physical
control of the motor vehicle to submit to a test of the person's
blood for the purpose of determining the alcoholic content thereof
or the presence of chemical substances as set forth in s. 877.111
or any substance controlled under chapter 893. The law enforcement
officer may use reasonable force if necessary to require such
person to submit to the administration of the blood test. The
blood test shall be performed in a reasonable manner.
Notwithstanding s. 316.1932, the testing required by this
paragraph need not be incidental to a lawful arrest of the person.
(b) The term "serious bodily injury" means an injury to any
person, including the driver, which consists of a physical
condition that creates a substantial risk of death, serious
personal disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.
(2)(a) 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 the alcoholic content thereof or the presence of
chemical substances or controlled substances therein. However, the
failure of a law enforcement officer to request the withdrawal of
blood shall not affect the admissibility of a test of blood
withdrawn for medical purposes.
1. Notwithstanding any provision of law pertaining to the
confidentiality of hospital records or other medical records, if a
health care provider, who is providing medical care in a health
care facility to a person injured in a motor vehicle crash,
becomes aware, as a result of any blood test performed in the
course of that medical treatment, that the person's blood-alcohol
level meets or exceeds the blood-alcohol level specified in s.
316.193(1)(b), the health care provider may notify any law
enforcement officer or law enforcement agency. Any such notice
must be given within a reasonable time after the health care
provider receives the test result. Any such notice shall be used
only for the purpose of providing the law enforcement officer with
reasonable cause to request the withdrawal of a blood sample
pursuant to this section.
2. The notice shall consist only of the name of the person being
treated, the name of the person who drew the blood, the
blood-alcohol level indicated by the test, and the date and time
of the administration of the test.
3. Nothing contained in s. 395.3025(4), s. 456.057, or any
applicable practice act affects the authority to provide notice
under this section, and the health care provider is not considered
to have breached any duty owed to the person under s. 395.3025(4),
s. 456.057, or any applicable practice act by providing notice or
failing to provide notice. It shall not be a breach of any
ethical, moral, or legal duty for a health care provider to
provide notice or fail to provide notice.
4. A civil, criminal, or administrative action may not be brought
against any person or health care provider participating in good
faith in the provision of notice or failure to provide notice as
provided in this section. Any person or health care provider
participating in the provision of notice or failure to provide
notice as provided in this section shall be immune from any civil
or criminal liability and from any professional disciplinary
action with respect to the provision of notice or failure to
provide notice under this section. Any such participant has the
same immunity with respect to participating in any judicial
proceedings resulting from the notice or failure to provide
notice.
(b) A chemical analysis of the person's blood to determine the
alcoholic content thereof must have been performed substantially
in accordance with methods approved by the Department of Law
Enforcement and by an individual possessing a valid permit issued
by the department for this purpose. The Department of Law
Enforcement may approve satisfactory techniques or methods,
ascertain the qualifications and competence of individuals to
conduct such analyses, and issue permits that are subject to
termination or revocation at the discretion of the department. Any
insubstantial differences between approved methods or techniques
and actual testing procedures, or any insubstantial defects
concerning the permit issued by the department, in any individual
case, shall not render the test or test results invalid.
(c) No hospital, clinical laboratory, medical clinic, or similar
medical institution or 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, or other person
assisting a law enforcement officer shall incur any civil or
criminal liability as a result of the withdrawal or analysis of a
blood specimen pursuant to accepted medical standards when
requested by a law enforcement officer, regardless of whether or
not the subject resisted administration of the test.
(3)(a) Any criminal charge resulting from the incident giving rise
to the officer's demand for testing shall be tried concurrently
with a charge of any violation arising out of the same incident,
unless, in the discretion of the court, such charges should be
tried separately. If such charges are tried separately, the fact
that such person refused, resisted, obstructed, or opposed testing
shall be admissible at the trial of the criminal offense which
gave rise to the demand for testing.
(b) The results of any test administered pursuant to this section
for the purpose of detecting the presence of any controlled
substance shall not be admissible as evidence in a criminal
prosecution for the possession of a controlled substance.
(4) Notwithstanding any provision of law pertaining to the
confidentiality of hospital records or other medical records,
information relating to the alcoholic content of the blood or the
presence of chemical substances or controlled substances in the
blood obtained pursuant to this section shall be released to a
court, prosecuting attorney, defense attorney, or law enforcement
officer in connection with an alleged violation of s. 316.193 upon
request for such information.
History.--s. 4, ch. 82-155; s. 19, ch. 83-215; s. 4, ch. 84-359;
s. 16, ch. 86-296; s. 4, ch. 88-5; s. 3, ch. 91-255; s. 21, ch.
92-58; s. 3, ch. 93-124; s. 315, ch. 95-148; s. 2, ch. 98-27; s.
7, ch. 2000-160; s. 3, ch. 2002-263.
316.1934 Presumption of impairment; testing methods.--
(1) It is unlawful and punishable as provided in chapter 322 and
in s. 316.193 for any person who is under the influence of
alcoholic beverages or controlled substances, when affected to the
extent that the person's normal faculties are impaired or to the
extent that the person is deprived of full possession of normal
faculties, to drive or be in actual physical control of any motor
vehicle within this state. Such normal faculties include, but are
not limited to, the ability to see, hear, walk, talk, judge
distances, drive an automobile, make judgments, act in
emergencies, and, in general, normally perform the many mental and
physical acts of daily life.
(2) At the trial of any civil or criminal action or proceeding
arising out of acts alleged to have been committed by any person
while driving, or in actual physical control of, a vehicle while
under the influence of alcoholic beverages or controlled
substances, when affected to the extent that the person's normal
faculties were impaired or to the extent that he or she was
deprived of full possession of his or her normal faculties, the
results of any test administered in accordance with s. 316.1932 or
s. 316.1933 and this section are admissible into evidence when
otherwise admissible, and the amount of alcohol in the person's
blood or breath at the time alleged, as shown by chemical analysis
of the person's blood, or by chemical or physical test of the
person's breath, gives rise to the following presumptions:
(a) If there was at that time a blood-alcohol level or
breath-alcohol level of 0.05 or less, it is presumed that the
person was not under the influence of alcoholic beverages to the
extent that his or her normal faculties were impaired.
(b) If there was at that time a blood-alcohol level or
breath-alcohol level in excess of 0.05 but less than 0.08, that
fact does not give rise to any presumption that the person was or
was not under the influence of alcoholic beverages to the extent
that his or her normal faculties were impaired but may be
considered with other competent evidence in determining whether
the person was under the influence of alcoholic beverages to the
extent that his or her normal faculties were impaired.
(c) If there was at that time a blood-alcohol level or
breath-alcohol level of 0.08 or higher, that fact is prima facie
evidence that the person was under the influence of alcoholic
beverages to the extent that his or her normal faculties were
impaired. Moreover, such person who has a blood-alcohol level or
breath-alcohol level of 0.08 or higher is guilty of driving, or
being in actual physical control of, a motor vehicle, with an
unlawful blood-alcohol level or breath-alcohol level.
The presumptions provided in this subsection do not limit the
introduction of any other competent evidence bearing upon the
question of whether the person was under the influence of
alcoholic beverages to the extent that his or her normal faculties
were impaired.
(3) A chemical analysis of a person's blood to determine alcoholic
content or a chemical or physical test of a person's breath, in
order to be considered valid under this section, must have been
performed substantially in accordance with methods approved by the
Department of Law Enforcement and by an individual possessing a
valid permit issued by the department for this purpose. Any
insubstantial differences between approved techniques and actual
testing procedures or any insubstantial defects concerning the
permit issued by the department, in any individual case do not
render the test or test results invalid. The Department of Law
Enforcement may approve satisfactory techniques or methods,
ascertain the qualifications and competence of individuals to
conduct such analyses, and issue permits that are subject to
termination or revocation in accordance with rules adopted by the
department.
(4) Any person charged with a violation of s. 316.193, whether in
a municipality or not, is entitled to trial by jury according to
the Florida Rules of Criminal Procedure.
(5) An affidavit containing the results of any test of a person's
blood or breath to determine its alcohol content, as authorized by
s. 316.1932 or s. 316.1933, is admissible in evidence under the
exception to the hearsay rule in s. 90.803(8) for public records
and reports. Such affidavit is admissible without further
authentication and is presumptive proof of the results of an
authorized test to determine alcohol content of the blood or
breath if the affidavit discloses:
(a) The type of test administered and the procedures followed;
(b) The time of the collection of the blood or breath sample
analyzed;
(c) The numerical results of the test indicating the alcohol
content of the blood or breath;
(d) The type and status of any permit issued by the Department of
Law Enforcement which was held by the person who performed the
test; and
(e) If the test was administered by means of a breath testing
instrument, the date of performance of the most recent required
maintenance on such instrument.
The Department of Law Enforcement shall provide a form for the
affidavit. Admissibility of the affidavit does not abrogate the
right of the person tested to subpoena the person who administered
the test for examination as an adverse witness at a civil or
criminal trial or other proceeding.
(6) Nothing in this section prohibits the prosecution of a person
under s. 322.62. The provisions of subsection (2) do not apply to
such prosecution and the presumptions made pursuant to that
subsection may not be introduced into evidence during such
prosecution.
History.--ss. 2, 3, ch. 67-308; ss. 19, 35, ch. 69-106; ss. 3, 4,
ch. 70-279; s. 1, ch. 70-439; s. 3, ch. 74-384; s. 42, ch. 76-31;
s. 1, ch. 76-153; s. 51, ch. 77-147; s. 5, ch. 82-155; s. 2, ch.
83-218; s. 5, ch. 84-359; s. 17, ch. 86-296; s. 5, ch. 88-5; s. 2,
ch. 88-82; s. 27, ch. 89-282; s. 4, ch. 91-255; s. 22, ch. 92-58;
ss. 2, 4, ch. 93-124; s. 316, ch. 95-148; s. 5, ch. 96-330.
Note.--Former s. 322.262.
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