Bill Text: FL S0824 | 2011 | Regular Session | Introduced
Bill Title: Driving While License is Suspended or Revoked
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [S0824 Detail]
Download: Florida-2011-S0824-Introduced.html
Florida Senate - 2011 SB 824 By Senator Bogdanoff 25-00412B-11 2011824__ 1 A bill to be entitled 2 An act relating to driving while the operator’s driver 3 license is suspended or revoked; amending s. 322.34, 4 F.S.; specifying exceptions to certain penalties for a 5 person driving a motor vehicle while the person’s 6 driver’s license is canceled, suspended, or revoked; 7 removing provisions requiring a law enforcement 8 officer to immediately impound or immobilize a motor 9 vehicle under certain circumstances if the operator’s 10 driver’s license or driving privilege is suspended or 11 revoked; removing a requirement that the arresting 12 agency or towing service in possession of the 13 impounded or immobilized motor vehicle send notice to 14 any coregistered owner of the motor vehicle and to 15 each person of record claiming a lien against the 16 motor vehicle; requiring that a motor vehicle be 17 impounded or immobilized for specified periods 18 depending on the seriousness of the violation 19 committed; prohibiting the court from ordering that 20 the impoundment or immobilization run concurrently 21 with the defendant’s incarceration; requiring that all 22 costs of impounding or immobilizing a motor vehicle be 23 borne by the defendant; providing for a person who 24 owns or coowns a motor vehicle when a violation of law 25 was committed to petition the sentencing court for an 26 order setting aside the impoundment or immobilization 27 order; requiring that the court set aside or dismiss 28 an impoundment or immobilization order under certain 29 circumstances; amending s. 932.701, F.S., relating to 30 the Florida Contraband Forfeiture Act; conforming a 31 cross-reference; providing an effective date. 32 33 Be It Enacted by the Legislature of the State of Florida: 34 35 Section 1. Section 322.34, Florida Statutes, is amended to 36 read: 37 322.34 Driving while license suspended, revoked, canceled, 38 or disqualified.— 39 (1) Except as provided in subsection (2), any person whose 40 driver’s license or driving privilege has been canceled, 41 suspended, or revoked, except a “habitual traffic offender” as 42 defined in s. 322.264, who drives a vehicle upon the highways of 43 this state while thesuchlicense or privilege is canceled, 44 suspended, or revoked commitsis guilty ofa moving violation, 45 punishable as provided in chapter 318. 46 (2) Except as provided in subsection (9), any person whose 47 driver’s license or driving privilege has been canceled, 48 suspended, or revoked as provided by law, except persons defined 49 in s. 322.264, who, knowing of such cancellation, suspension, or 50 revocation, drives any motor vehicle upon the highways of this 51 state while thesuchlicense or privilege is canceled, 52 suspended, or revoked, upon: 53 (a) A first conviction is guilty of a misdemeanor of the 54 second degree, punishable as provided in s. 775.082 or s. 55 775.083. 56 (b) A second conviction is guilty of a misdemeanor of the 57 first degree, punishable as provided in s. 775.082 or s. 58 775.083. 59 (c) A third or subsequent conviction is guilty of a felony 60 of the third degree, punishable as provided in s. 775.082, s. 61 775.083, or s. 775.084. 62 63 The element of knowledge is satisfied if the person has been 64 previously cited as provided in subsection (1);orthe person 65 admits to knowledge of the cancellation, suspension, or 66 revocation; or the person received notice as provided in 67 subsection (4). There isshall bea rebuttable presumption that 68 the knowledge requirement is satisfied if a judgment or order as 69 provided in subsection (4) appears in the department’s records 70 for any case except for one involving a suspension by the 71 department for failure to pay a traffic fine or for a financial 72 responsibility violation. 73 (3) In any proceeding for a violation of this section, a 74 court may consider evidence, other than that specified in 75 subsection (2), that the person knowingly violated this section. 76 (4) Any judgment or order rendered by a court or 77 adjudicatory body or any uniform traffic citation that cancels, 78 suspends, or revokes a person’s driver’s license must contain a 79 provision notifying the person that his or her driver’s license 80 has been canceled, suspended, or revoked. 81 (5) Except as provided in subsection (9), any person whose 82 driver’s license has been revoked pursuant to s. 322.264 83 (habitual offender) and who drives any motor vehicle upon the 84 highways of this state while thesuchlicense is revoked commits 85is guilty ofa felony of the third degree, punishable as 86 provided in s. 775.082, s. 775.083, or s. 775.084. 87 (6) Any person who operates a motor vehicle: 88 (a) Without having a driver’s license as required under s. 89 322.03; or 90 (b) While his or her driver’s license or driving privilege 91 is canceled, suspended, or revoked pursuant to s. 316.655, s. 92 322.26(8), s. 322.27(2), or s. 322.28(2) or (4), 93 94 and who by careless or negligent operation of the motor vehicle 95 causes the death of or serious bodily injury to another human 96 being commitsis guilty ofa felony of the third degree, 97 punishable as provided in s. 775.082 or s. 775.083. 98 (7) Any person whose driver’s license or driving privilege 99 has been canceled, suspended, revoked, or disqualified and who 100 drives a commercial motor vehicle on the highways of this state 101 while thesuchlicense or privilege is canceled, suspended, 102 revoked, or disqualified, upon: 103 (a) A first conviction is guilty of a misdemeanor of the 104 first degree, punishable as provided in s. 775.082 or s. 105 775.083. 106 (b) A second or subsequent conviction is guilty of a felony 107 of the third degree, punishable as provided in s. 775.082, s. 108 775.083, or s. 775.084. 109(8)(a)Upon the arrest of a person for the offense of110driving while the person’s driver’s license or driving privilege111is suspended or revoked, the arresting officer shall determine:1121.Whether the person’s driver’s license is suspended or113revoked.1142.Whether the person’s driver’s license has remained115suspended or revoked since a conviction for the offense of116driving with a suspended or revoked license.1173.Whether the suspension or revocation was made under s.118316.646or s.627.733, relating to failure to maintain required119security, or under s.322.264, relating to habitual traffic120offenders.1214.Whether the driver is the registered owner or coowner of122the vehicle.123(b)If the arresting officer finds in the affirmative as to124all of the criteria in paragraph (a), the officer shall125immediately impound or immobilize the vehicle.126(c)Within 7 business days after the date the arresting127agency impounds or immobilizes the vehicle, either the arresting128agency or the towing service, whichever is in possession of the129vehicle, shall send notice by certified mail to any coregistered130owners of the vehicle other than the person arrested and to each131person of record claiming a lien against the vehicle. All costs132and fees for the impoundment or immobilization, including the133cost of notification, must be paid by the owner of the vehicle134or, if the vehicle is leased, by the person leasing the vehicle.135(d)Either the arresting agency or the towing service,136whichever is in possession of the vehicle, shall determine137whether any vehicle impounded or immobilized under this section138has been leased or rented or if there are any persons of record139with a lien upon the vehicle. Either the arresting agency or the140towing service, whichever is in possession of the vehicle, shall141notify by express courier service with receipt or certified mail142within 7 business days after the date of the immobilization or143impoundment of the vehicle, the registered owner and all persons144having a recorded lien against the vehicle that the vehicle has145been impounded or immobilized. A lessor, rental car company, or146lienholder may then obtain the vehicle, upon payment of any147lawful towing or storage charges. If the vehicle is a rental148vehicle subject to a written contract, the charges may be149separately charged to the renter, in addition to the rental150rate, along with other separate fees, charges, and recoupments151disclosed on the rental agreement. If the storage facility fails152to provide timely notice to a lessor, rental car company, or153lienholder as required by this paragraph, the storage facility154shall be responsible for payment of any towing or storage155charges necessary to release the vehicle to a lessor, rental car156company, or lienholder that accrue after the notice period,157which charges may then be assessed against the driver of the158vehicle if the vehicle was lawfully impounded or immobilized.159(e)Except as provided in paragraph (d), the vehicle shall160remain impounded or immobilized for any period imposed by the161court until:1621.The owner presents proof of insurance to the arresting163agency; or1642.The owner presents proof of sale of the vehicle to the165arresting agency and the buyer presents proof of insurance to166the arresting agency.167 168If proof is not presented within 35 days after the impoundment169or immobilization, a lien shall be placed upon such vehicle170pursuant to s.713.78.171(f)The owner of a vehicle that is impounded or immobilized172under this subsection may, within 10 days after the date the173owner has knowledge of the location of the vehicle, file a174complaint in the county in which the owner resides to determine175whether the vehicle was wrongfully taken or withheld. Upon the176filing of a complaint, the owner or lienholder may have the177vehicle released by posting with the court a bond or other178adequate security equal to the amount of the costs and fees for179impoundment or immobilization, including towing or storage, to180ensure the payment of such costs and fees if the owner or181lienholder does not prevail. When the vehicle owner or182lienholder does not prevail on a complaint that the vehicle was183wrongfully taken or withheld, he or she must pay the accrued184charges for the immobilization or impoundment, including any185towing and storage charges assessed against the vehicle. When186the bond is posted and the fee is paid as set forth in s.28.24,187the clerk of the court shall issue a certificate releasing the188vehicle. At the time of release, after reasonable inspection,189the owner must give a receipt to the towing or storage company190indicating any loss or damage to the vehicle or to the contents191of the vehicle.192 (8)(9)(a) A motor vehicle that is driven by a person under 193 the influence of alcohol or drugs in violation of s. 316.193 is 194 subject to seizure and forfeiture under ss. 932.701-932.706 and 195 is subject to liens for recovering, towing, or storing vehicles 196 under s. 713.78 if, at the time of the offense, the person’s 197 driver’s license is suspended, revoked, or canceled as a result 198 of a prior conviction for driving under the influence. 199 (b) The law enforcement officer shall notify the Department 200 of Highway Safety and Motor Vehicles of any impoundment or 201 seizure for violation of paragraph (a) in accordance with 202 procedures established by the department. 203 (c) Notwithstanding s. 932.703(1)(c) or s. 932.7055, when 204 the seizing agency obtains a final judgment granting forfeiture 205 of the motor vehicle under this section, 30 percent of the net 206 proceeds from the sale of the motor vehicle shall be retained by 207 the seizing law enforcement agency and 70 percent shall be 208 deposited in the General Revenue Fund for use by regional 209 workforce boards in providing transportation services for 210 participants of the welfare transition program. In a forfeiture 211 proceeding under this section, the court may consider the extent 212 that the family of the owner has other public or private means 213 of transportation. 214 (9)(10)(a) Notwithstanding any other provision of this 215 section, if a person does not have a prior forcible felony 216 conviction as defined in s. 776.08, the penalties provided in 217 paragraph (b) apply if a person’s driver’s license or driving 218 privilege is canceled, suspended, or revoked for: 219 1. Failing to pay child support as provided in s. 322.245 220 or s. 61.13016; 221 2. Failing to pay any other financial obligation as 222 provided in s. 322.245 other than those specified in s. 223 322.245(1); 224 3. Failing to comply with a civil penalty required in s. 225 318.15; 226 4. Failing to maintain vehicular financial responsibility 227 as required by chapter 324; 228 5. Failing to comply with attendance or other requirements 229 for minors as set forth in s. 322.091; or 230 6. Having been designated a habitual traffic offender under 231 s. 322.264(1)(d) as a result of suspensions of his or her 232 driver’s license or driver privilege for any underlying 233 violation listed in subparagraphs 1.-5. 234 (b)1. Upon a first conviction for knowingly driving while 235 his or her license is suspended, revoked, or canceled for any of 236 the underlying violations listed in subparagraphs (a)1.-6., a 237 person is guilty ofcommitsa misdemeanor of the second degree, 238 punishable as provided in s. 775.082 or s. 775.083. 239 2. Upon a second or subsequent conviction for the same 240 offense of knowingly driving while his or her license is 241 suspended, revoked, or canceled for any of the underlying 242 violations listed in subparagraphs (a)1.-6., a person is guilty 243 ofcommitsa misdemeanor of the first degree, punishable as 244 provided in s. 775.082 or s. 775.083. 245 (10)(a) When a person is convicted of a violation of this 246 section, except for a person convicted under subsection (7), at 247 the time of sentencing, the court shall order the impoundment or 248 immobilization of any motor vehicle that was operated by, under 249 the actual control of, or registered in the name of the 250 defendant as follows: 251 1. For a misdemeanor of the second degree, the impoundment 252 or immobilization shall be for 5 days. 253 2. For a misdemeanor of the first degree, the impoundment 254 or immobilization shall be for 10 days. 255 3. For a felony of the third degree, the impoundment or 256 immobilization shall be for 30 days. 257 (b) The court may not order the impoundment or 258 immobilization to run concurrently with any incarceration of the 259 defendant. 260 (c) All costs of impoundment or immobilization must be 261 borne by the defendant. 262 (11)(a) A person who owns or coowns but who was not 263 operating the motor vehicle when a violation of this section was 264 committed may petition the sentencing court for an order setting 265 aside the impoundment or immobilization order. In support of the 266 petition, the person must submit to the sentencing court a 267 police report demonstrating that the motor vehicle was stolen at 268 the time the violation of this section was committed or 269 documentation showing that the motor vehicle was purchased after 270 the offense was committed from a person other than the defendant 271 or the defendant’s agent. If the court finds that the motor 272 vehicle was stolen or that the sale was not made to circumvent 273 the order of impoundment or immobilization, the order of 274 impoundment or immobilization shall be set aside and the motor 275 vehicle shall be returned to the owner. If the owner of the 276 motor vehicle prevails, the owner is not liable for costs. 277 (b) The court shall dismiss the order of impoundment or 278 immobilization if the court finds that the family of the owner 279 of the motor vehicle has no other private or public means of 280 transportation. 281 (12)(11)(a) A person who does not hold a commercial 282 driver’s license and who is cited for an offense of knowingly 283 driving while his or her license is suspended, revoked, or 284 canceled for any of the underlying violations listed in 285 paragraph (9)(10)(a) may, in lieu of payment of fine or court 286 appearance, elect to enter a plea of nolo contendere and provide 287 proof of compliance to the clerk of the court, designated 288 official, or authorized operator of a traffic violations bureau. 289 In such case, adjudication shall be withheld. However, no 290 election shall be made under this subsection if such person has 291 made an election under this subsection during the preceding 12 292 months. A person may not make more than three elections under 293 this subsection. 294 (b) If adjudication is withheld under paragraph (a), such 295 action is not a conviction. 296 Section 2. Paragraph (a) of subsection (2) of section 297 932.701, Florida Statutes, is amended to read: 298 932.701 Short title; definitions.— 299 (2) As used in the Florida Contraband Forfeiture Act: 300 (a) “Contraband article” means: 301 1. Any controlled substance as defined in chapter 893 or 302 any substance, device, paraphernalia, or currency or other means 303 of exchange that was used, was attempted to be used, or was 304 intended to be used in violation of any provision of chapter 305 893, if the totality of the facts presented by the state is 306 clearly sufficient to meet the state’s burden of establishing 307 probable cause to believe that a nexus exists between the 308 article seized and the narcotics activity, whether or not the 309 use of the contraband article can be traced to a specific 310 narcotics transaction. 311 2. Any gambling paraphernalia, lottery tickets, money, 312 currency, or other means of exchange which was used, was 313 attempted, or intended to be used in violation of the gambling 314 laws of the state. 315 3. Any equipment, liquid or solid, which was being used, is 316 being used, was attempted to be used, or intended to be used in 317 violation of the beverage or tobacco laws of the state. 318 4. Any motor fuel upon which the motor fuel tax has not 319 been paid as required by law. 320 5. Any personal property, including, but not limited to, 321 any vessel, aircraft, item, object, tool, substance, device, 322 weapon, machine, vehicle of any kind, money, securities, books, 323 records, research, negotiable instruments, or currency, which 324 was used or was attempted to be used as an instrumentality in 325 the commission of, or in aiding or abetting in the commission 326 of, any felony, whether or not comprising an element of the 327 felony, or which is acquired by proceeds obtained as a result of 328 a violation of the Florida Contraband Forfeiture Act. 329 6. Any real property, including any right, title, 330 leasehold, or other interest in the whole of any lot or tract of 331 land, which was used, is being used, or was attempted to be used 332 as an instrumentality in the commission of, or in aiding or 333 abetting in the commission of, any felony, or which is acquired 334 by proceeds obtained as a result of a violation of the Florida 335 Contraband Forfeiture Act. 336 7. Any personal property, including, but not limited to, 337 equipment, money, securities, books, records, research, 338 negotiable instruments, currency, or any vessel, aircraft, item, 339 object, tool, substance, device, weapon, machine, or vehicle of 340 any kind in the possession of or belonging to any person who 341 takes aquaculture products in violation of s. 812.014(2)(c). 342 8. Any motor vehicle offered for sale in violation of s. 343 320.28. 344 9. Any motor vehicle used during the course of committing 345 an offense in violation of s. 322.34(8)(9)(a). 346 10. Any photograph, film, or other recorded image, 347 including an image recorded on videotape, a compact disc, 348 digital tape, or fixed disk, that is recorded in violation of s. 349 810.145 and is possessed for the purpose of amusement, 350 entertainment, sexual arousal, gratification, or profit, or for 351 the purpose of degrading or abusing another person. 352 11. Any real property, including any right, title, 353 leasehold, or other interest in the whole of any lot or tract of 354 land, which is acquired by proceeds obtained as a result of 355 Medicaid fraud under s. 409.920 or s. 409.9201; any personal 356 property, including, but not limited to, equipment, money, 357 securities, books, records, research, negotiable instruments, or 358 currency; or any vessel, aircraft, item, object, tool, 359 substance, device, weapon, machine, or vehicle of any kind in 360 the possession of or belonging to any person which is acquired 361 by proceeds obtained as a result of Medicaid fraud under s. 362 409.920 or s. 409.9201. 363 Section 3. This act shall take effect July 1, 2011.