Florida DUI Statute

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 $2,000 or more than $5,000 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 $2,000.

(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 or unborn quick child 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.

For purposes of this subsection, the definition of the term “unborn quick child” shall be determined in accordance with the definition of viable fetus as set forth in s. 782.071. A person who is convicted of DUI manslaughter shall be sentenced to a mandatory minimum term of imprisonment of 4 years.

(4) Any person who is convicted of a violation of subsection (1) and who has a blood-alcohol level or breath-alcohol level of 0.15 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 $1,000 or more than $2,000 for a first conviction.

2. Not less than $2,000 or more than $4,000 for a second conviction.

3. Not less than $4,000 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 0.15 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 not less than 6 continuous months for the first offense and for not less than 2 continuous years for a second offense, when the convicted person qualifies for a permanent or restricted license.

(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. The court may order a defendant to pay a fine of $10 for each hour of public service or community work otherwise required only if the court finds that the residence or location of the defendant at the time public service or community work is required or the defendant’s employment obligations would create an undue hardship for the defendant. 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. The order of impoundment or immobilization must include the name and telephone numbers of all immobilization agencies meeting all of the conditions of subsection (13). 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. The costs and fees for the impoundment or immobilization must be paid directly to the person impounding or immobilizing the vehicle.

(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.

(13) If personnel of the circuit court or the sheriff do not immobilize vehicles, only immobilization agencies that meet the conditions of this subsection shall immobilize vehicles in that judicial circuit.

(a) The immobilization agency responsible for immobilizing vehicles in that judicial circuit shall be subject to strict compliance with all of the following conditions and restrictions:

1. Any immobilization agency engaged in the business of immobilizing vehicles shall:

a. Have a class “R” license issued pursuant to part IV of chapter 493;

b. Have at least 3 years of verifiable experience in immobilizing vehicles; and

c. Maintain accurate and complete records of all payments for the immobilization, copies of all documents pertaining to the court’s order of impoundment or immobilization, and any other documents relevant to each immobilization. Such records must be maintained by the immobilization agency for at least 3 years.

2. The person who immobilizes a vehicle must never have been convicted of any felony or of driving or boating under the influence of alcohol or a controlled substance in the last 3 years.

(b) A person who violates paragraph (a) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(c) Any immobilization agency who is aggrieved by a person’s violation of paragraph (a) may bring a civil action against the person who violated paragraph (a) seeking injunctive relief, damages, reasonable attorney’s fees and costs, and any other remedy available at law or in equity as may be necessary to enforce this subsection. In any action to enforce this subsection, establishment of a violation of paragraph (a) shall conclusively establish a clear legal right to injunctive relief, that irreparable harm will be caused if an injunction does not issue, that no adequate remedy at law exists, and that public policy favors issuance of injunctive relief.

(14) As used in this chapter, the term:

(a) “Immobilization,” “immobilizing,” or “immobilize” means the act of installing a vehicle antitheft device on the steering wheel of a vehicle, the act of placing a tire lock or wheel clamp on a vehicle, or a governmental agency’s act of taking physical possession of the license tag and vehicle registration rendering a vehicle legally inoperable to prevent any person from operating the vehicle pursuant to an order of impoundment or immobilization under subsection (6).

(b) “Immobilization agency” or “immobilization agencies” means any firm, company, agency, organization, partnership, corporation, association, trust, or other business entity of any kind whatsoever that meets all of the conditions of subsection (13).

(c) “Impoundment,” “impounding,” or “impound” means the act of storing a vehicle at a storage facility pursuant to an order of impoundment or immobilization under subsection (6) where the person impounding the vehicle exercises control, supervision, and responsibility over the vehicle.

(d) “Person” means any individual, firm, company, agency, organization, partnership, corporation, association, trust, or other business entity of any kind whatsoever.

316.1939. Refusal to submit to testing; penalties

(1) Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in s. 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and:

(a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;

(b) Who was placed under lawful arrest for a violation of s. 316.193 unless such test was requested pursuant to s. 316.1932(1)(c);

(c) Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months;

(d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or 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; and

(e) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer

commits a misdemeanor of the first degree and is subject to punishment as provided in s. 775.082 or s. 775.083.

(2) The disposition of any administrative proceeding that relates to the suspension of a person’s driving privilege does not affect a criminal action under this section.

(3) The disposition of a criminal action under this section does not affect any administrative proceeding that relates to the suspension of a person’s driving privilege. The department’s records showing that a person’s license has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood shall be admissible and shall create a rebuttable presumption of such suspension.

CREDIT(S)

Added by Laws 2002, c. 2002-263, § 5, eff. July 1, 2002.

LIBRARY REFERENCES

322.62. Driving under the influence; commercial motor vehicle operators

(1) A person who has any alcohol in his or her body may not drive or be in actual physical control of a commercial motor vehicle in this state. Any person who violates this section is guilty of a moving violation, punishable as provided in s. 318.18.

(2)(a) In addition to the penalty provided in subsection (1), a person who violates this section shall be placed out-of-service immediately for a period of 24 hours.

(b) In addition to the penalty provided in subsection (1), a person who violates this section and who has a blood-alcohol level of 0.04 or more grams of alcohol per 100 milliliters of blood, or a breath-alcohol level of 0.04 or more grams of alcohol per 210 liters of breath is subject to the penalty provided in s. 322.61.

(3) This section does not supersede s. 316.193. Nothing in this section prohibits the prosecution of a person who drives a commercial motor vehicle for driving under the influence of alcohol or controlled substances whether or not such person is also prosecuted for a violation of this section.

CREDIT(S)

322.63. Alcohol or drug testing; commercial motor vehicle operators

(1) A person who accepts the privilege extended by the laws of this state of operating a commercial motor vehicle within this state shall, by so operating such commercial motor vehicle, be deemed to have given his or her consent to submit to an approved chemical or physical test of his or her blood or breath for the purpose of determining his or her alcohol concentration, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or of controlled substances.

(a) By applying for a commercial driver’s license and by accepting and using a commercial driver’s license, the person holding the commercial driver’s license is deemed to have expressed his or her consent to the provisions of this section.

(b) Any person who drives a commercial motor vehicle within this state and who is not required to obtain a commercial driver’s license in this state is, by his or her act of driving a commercial motor vehicle within this state, deemed to have expressed his or her consent to the provisions of this section.

(c) A notification of the consent provision of this section shall be printed on each new or renewed commercial driver’s license issued.

(2) The chemical and physical tests authorized by this section shall only be required if a law enforcement officer has reasonable cause to believe that a person driving a commercial motor vehicle has any alcohol, chemical substance, or controlled substance in his or her body.

(a) The breath test shall be administered at the request of a law enforcement officer who has reasonable cause to believe that a person was driving a commercial motor vehicle with any alcohol in his or her blood.

(b) The urine test shall be administered at the request of a law enforcement officer who has reasonable cause to believe that a person was driving a commercial motor vehicle with any chemical substance or controlled substance in his or her body. The test shall be administered at a facility, mobile or otherwise, that is equipped to administer such tests in a reasonable manner so as to ensure the accuracy of the specimen and maintain the privacy of the individual involved.

(c) The blood test shall be administered at the request of a law enforcement officer who has reasonable cause to believe that a person was driving a commercial motor vehicle with any alcohol, chemical substance, or controlled substance in his or her body. The blood test shall be performed in a reasonable manner by qualified medical personnel. Any person who appears for treatment at a medical facility as a result of his or her involvement as a commercial motor vehicle driver in a crash and who is incapable, by reason of a mental or physical condition, of refusing a blood test shall be deemed to have consented to such test.

(d) The administration of one test under paragraph (a), paragraph (b), or paragraph (c) shall not preclude the administration of a different test under paragraph (a), paragraph (b), or paragraph (c). However, a urine test may not be used to determine alcohol concentration and a breath test may not be used to determine the presence of controlled substances or chemical substances in a person’s body. Notwithstanding the provisions of this paragraph, in the event a Florida licensee has been convicted in another state for an offense substantially similar to s. 316.193 or to s. 322.62, which conviction was based upon evidence of test results prohibited by this paragraph, that out-of-state conviction shall constitute a conviction for the purposes of this chapter.

(3)(a) The breath and blood tests authorized in this section shall be administered substantially in accordance with rules adopted by the Department of Law Enforcement.

(b) 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 316 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 316 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 316 and 327. The program shall:

1. Establish uniform criteria for the issuance of permits to breath test operators, agency inspectors, instructors, blood analysts, and instruments.

2. Have the authority to permit breath test operators, agency inspectors, instructors, blood analysts, and instruments.

3. Have the authority to discipline and suspend, revoke, or renew the permits of breath test operators, agency inspectors, instructors, blood analysts, and instruments.

4. Establish uniform requirements for instruction and curricula for the operation and inspection of approved instruments.

5. Have the authority to specify one approved curriculum for the operation and inspection of approved instruments.

6. Establish a procedure for the approval of breath test operator and agency inspector classes.

7. 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 316 and 327.

8. 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.

9. Issue final orders which include findings of fact and conclusions of law and which constitute final agency action for the purpose of chapter 120.

10. Enforce compliance with the provisions of this section through civil or administrative proceedings.

11. Make recommendations concerning any matter within the purview of this section, this chapter, chapter 316, or chapter 327.

12. Promulgate rules for the administration and implementation of this section, including definitions of terms.

13. Consult and cooperate with other entities for the purpose of implementing the mandates of this section.

14. 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 316 and 327.

15. 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 316 and 327.

16. 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 316 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.

(c) Any insubstantial differences between approved techniques and actual testing procedures in any individual case does not render the test or tests results invalid.

(d) Notwithstanding any other provision of this section, 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.

(4)(a) Except as provided in paragraph (b), a person shall be told that his or her failure to submit to a physical or chemical test authorized by this section shall result in the disqualification of his or her privilege to operate a commercial motor vehicle for a period of 1 year for a first refusal, and shall result in the permanent disqualification of such privilege for a second refusal, arising from separate incidents.

(b) Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition shall be deemed to have consented to a blood test.

(c) The refusal of a person to submit to a physical or chemical test authorized by this section shall be admissible in evidence in any criminal proceeding.

(5) The results of any test administered pursuant to this section shall not be admissible in a criminal prosecution for possession of a controlled substance.

(6) Notwithstanding any provision of law pertaining to the confidentiality of hospital records or other medical records, information relating to the alcohol content of a person’s blood or the presence of chemical substances or controlled substances in a person’s 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 or s. 322.62 upon request for such information.

CREDIT(S)

322.64. Holder of commercial driver’s license; persons operating a commercial motor vehicle; driving with unlawful blood-alcohol level; refusal to submit to breath, urine, or blood test

(1)(a) A law enforcement officer or correctional officer shall, on behalf of the department, disqualify from operating any commercial motor vehicle a person who while operating or in actual physical control of a commercial motor vehicle is arrested for a violation of s. 316.193, relating to unlawful blood-alcohol level or breath-alcohol level, or a person who has refused to submit to a breath, urine, or blood test authorized by s. 322.63 or s. 316.1932 arising out of the operation or actual physical control of a commercial motor vehicle. A law enforcement officer or correctional officer shall, on behalf of the department, disqualify the holder of a commercial driver’s license from operating any commercial motor vehicle if the license holder, while operating or in actual physical control of a motor vehicle, is arrested for a violation of s. 316.193, relating to unlawful blood-alcohol level or breath-alcohol level, or refused to submit to a breath, urine, or blood test authorized by s. 322.63 or s. 316.1932. Upon disqualification of the person, the officer shall take the person’s driver’s license and issue the person a 10-day temporary permit for the operation of noncommercial vehicles only if the person is otherwise eligible for the driving privilege and shall issue the person a notice of disqualification. If the person has been given a blood, breath, or urine test, the results of which are not available to the officer at the time of the arrest, the agency employing the officer shall transmit such results to the department within 5 days after receipt of the results. If the department then determines that the person had a blood-alcohol level or breath-alcohol level of 0.08 or higher, the department shall disqualify the person from operating a commercial motor vehicle pursuant to subsection (3).

(b) The disqualification under paragraph (a) shall be pursuant to, and the notice of disqualification shall inform the driver of, the following:

1. a. The driver refused to submit to a lawful breath, blood, or urine test and he or she is disqualified from operating a commercial motor vehicle for a period of 1 year, for a first refusal, or permanently, if he or she has previously been disqualified under this section; or

b. The driver was driving or in actual physical control of a commercial motor vehicle, or any motor vehicle if the driver holds a commercial driver’s license, had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher, and his or her driving privilege shall be disqualified for a period of 1 year for a first offense or permanently disqualified if his or her driving privilege has been previously disqualified under this section.

2. The disqualification period for operating commercial vehicles shall commence on the date of issuance of the notice of disqualification.

3. The driver may request a formal or informal review of the disqualification by the department within 10 days after the date of issuance of the notice of disqualification.

4. The temporary permit issued at the time of disqualification expires at midnight of the 10th day following the date of disqualification.

5. The driver may submit to the department any materials relevant to the disqualification.

(2) Except as provided in paragraph (1)(a), the law enforcement officer shall forward to the department, within 5 days after the date of the issuance of the notice of disqualification, a copy of the notice of disqualification, the driver’s license of the person disqualified, and an affidavit stating the officer’s grounds for belief that the person disqualified was operating or in actual physical control of a commercial motor vehicle, or holds a commercial driver’s license, and had an unlawful blood-alcohol or breath-alcohol level; the results of any breath or blood or urine test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person arrested refused to submit; a copy of the notice of disqualification issued to the person; and the officer’s description of the person’s field sobriety test, if any. The failure of the officer to submit materials within the 5-day period specified in this subsection or subsection (1) does not affect the department’s ability to consider any evidence submitted at or prior to the hearing. The officer may also submit a copy of a videotape of the field sobriety test or the attempt to administer such test and a copy of the crash report, if any.

(3) If the department determines that the person arrested should be disqualified from operating a commercial motor vehicle pursuant to this section and if the notice of disqualification has not already been served upon the person by a law enforcement officer or correctional officer as provided in subsection (1), the department shall issue a notice of disqualification and, unless the notice is mailed pursuant to s. 322.251, a temporary permit which expires 10 days after the date of issuance if the driver is otherwise eligible.

(4) If the person disqualified requests an informal review pursuant to subparagraph (1)(b)3., the department shall conduct the informal review by a hearing officer employed by the department. Such informal review hearing shall consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person disqualified, and the presence of an officer or witness is not required.

(5) After completion of the informal review, notice of the department’s decision sustaining, amending, or invalidating the disqualification must be provided to the person. Such notice must be mailed to the person at the last known address shown on the department’s records, and to the address provided in the law enforcement officer’s report if such address differs from the address of record, within 21 days after the expiration of the temporary permit issued pursuant to subsection (1) or subsection (3).

(6)(a) If the person disqualified requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.

(b) Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents as provided in subsection (2), regulate the course and conduct of the hearing, and make a ruling on the disqualification. The department and the person disqualified may subpoena witnesses, and the party requesting the presence of a witness shall be responsible for the payment of any witness fees. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived.

(c) A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person shall not be in contempt while a subpoena is being challenged.

(d) The department must, within 7 days after a formal review hearing, send notice to the person of the hearing officer’s decision as to whether sufficient cause exists to sustain, amend, or invalidate the disqualification.

(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the disqualification. The scope of the review shall be limited to the following issues:

(a) If the person was disqualified from operating a commercial motor vehicle for driving with an unlawful blood-alcohol level:

1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a commercial motor vehicle, or any motor vehicle if the driver holds a commercial driver’s license, in this state while he or she had any alcohol, chemical substances, or controlled substances in his or her body.

2. Whether the person had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher.

(b) If the person was disqualified from operating a commercial motor vehicle for refusal to submit to a breath, blood, or urine test:

1. Whether the law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a commercial motor vehicle, or any motor vehicle if the driver holds a commercial driver’s license, in this state while he or she had any alcohol, chemical substances, or controlled substances in his or her body.

2. Whether the person refused to submit to the test after being requested to do so by a law enforcement officer or correctional officer.

3. Whether the person was told that if he or she refused to submit to such test he or she would be disqualified from operating a commercial motor vehicle for a period of 1 year or, if previously disqualified under this section, permanently.

(8) Based on the determination of the hearing officer pursuant to subsection (7) for both informal hearings under subsection (4) and formal hearings under subsection (6), the department shall:

(a) Sustain the disqualification for a period of 1 year for a first refusal, or permanently if such person has been previously disqualified from operating a commercial motor vehicle under this section. The disqualification period commences on the date of the issuance of the notice of disqualification.

(b) Sustain the disqualification:

1. For a period of 1 year if the person was driving or in actual physical control of a commercial motor vehicle, or any motor vehicle if the driver holds a commercial driver’s license, and had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher; or

2. Permanently if the person has been previously disqualified from operating a commercial motor vehicle under this section or his or her driving privilege has been previously suspended for driving or being in actual physical control of a commercial motor vehicle, or any motor vehicle if the driver holds a commercial driver’s license, and had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher.

The disqualification period commences on the date of the issuance of the notice of disqualification.

(9) A request for a formal review hearing or an informal review hearing shall not stay the disqualification. If the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the disqualification. If the scheduled hearing is continued at the department’s initiative, the department shall issue a temporary driving permit limited to noncommercial vehicles which is valid until the hearing is conducted if the person is otherwise eligible for the driving privilege. Such permit shall not be issued to a person who sought and obtained a continuance of the hearing. The permit issued under this subsection shall authorize driving for business purposes only.

(10) A person who is disqualified from operating a commercial motor vehicle under subsection (1) or subsection (3) is eligible for issuance of a license for business or employment purposes only under s. 322.271 if the person is otherwise eligible for the driving privilege. However, such business or employment purposes license shall not authorize the driver to operate a commercial motor vehicle.

(11) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test.

(12) The formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department is authorized to adopt rules for the conduct of reviews under this section.

(13) A person may appeal any decision of the department sustaining the disqualification from operating a commercial motor vehicle by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted pursuant to s. 322.31. However, an appeal shall not stay the disqualification. This subsection shall not be construed to provide for a de novo appeal.

(14) The decision of the department under this section shall not be considered in any trial for a violation of s. 316.193, s. 322.61, or s. 322.62, nor shall any written statement submitted by a person in his or her request for departmental review under this section be admissible into evidence against him or her in any such trial. The disposition of any related criminal proceedings shall not affect a disqualification imposed pursuant to this section.

(15) This section does not preclude the suspension of the driving privilege pursuant to s. 322.2615. The driving privilege of a person who has been disqualified from operating a commercial motor vehicle also may be suspended for a violation of s. 316.193.

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322.2616. Suspension of license; persons under 21 years of age; right to review

(1)(a) Notwithstanding s. 316.193, it is unlawful for a person under the age of 21 who has a blood-alcohol or breath-alcohol level of 0.02 or higher to drive or be in actual physical control of a motor vehicle.

(b) A law enforcement officer who has probable cause to believe that a motor vehicle is being driven by or is in the actual physical control of a person who is under the age of 21 while under the influence of alcoholic beverages or who has any blood-alcohol or breath-alcohol level may lawfully detain such a person and may request that person to submit to a test to determine his or her blood-alcohol or breath-alcohol level.

(2)(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving privilege of such person if the person has a blood-alcohol or breath-alcohol level of 0.02 or higher. The officer shall also suspend, on behalf of the department, the driving privilege of a person who has refused to submit to a test as provided by paragraph (b). The officer shall take the person’s driver’s license and issue the person a 10-day temporary driving permit if the person is otherwise eligible for the driving privilege and shall issue the person a notice of suspension.

(b) The suspension under paragraph (a) must be pursuant to, and the notice of suspension must inform the driver of, the following:

1. a. The driver refused to submit to a lawful breath test and his or her driving privilege is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as provided in this section as a result of a refusal to submit to a test; or

b. The driver was under the age of 21 and was driving or in actual physical control of a motor vehicle while having a blood-alcohol or breath-alcohol level of 0.02 or higher; and the person’s driving privilege is suspended for a period of 6 months for a first violation, or for a period of 1 year if his or her driving privilege has been previously suspended as provided in this section for driving or being in actual physical control of a motor vehicle with a blood-alcohol or breath-alcohol level of 0.02 or higher.

2. The suspension period commences on the date of issuance of the notice of suspension.

3. The driver may request a formal or informal review of the suspension by the department within 10 days after the issuance of the notice of suspension.

4. A temporary permit issued at the time of the issuance of the notice of suspension shall not become effective until after 12 hours have elapsed and will expire at midnight of the 10th day following the date of issuance.

5. The driver may submit to the department any materials relevant to the suspension of his or her license.

(c) When a driver subject to this section has a blood-alcohol or breath-alcohol level of 0.05 or higher, the suspension shall remain in effect until such time as the driver has completed a substance abuse course offered by a DUI program licensed by the department. The driver shall assume the reasonable costs for the substance abuse course. As part of the substance abuse course, the program shall conduct a substance abuse evaluation of the driver, and notify the parents or legal guardians of drivers under the age of 19 years of the results of the evaluation. 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 a driver fails to complete the substance abuse education course and evaluation, the driver’s license shall not be reinstated by the department.

(d) A minor under the age of 18 years proven to be driving with a blood-alcohol or breath-alcohol level of 0.02 or higher may be taken by a law enforcement officer to the addictions receiving facility in the county in which the minor is found to be so driving, if the county makes the addictions receiving facility available for such purpose.

(3) The law enforcement officer shall forward to the department, within 5 days after the date of the issuance of the notice of suspension, a copy of the notice of suspension, the driver’s license of the person receiving the notice of suspension, and an affidavit stating the officer’s grounds for belief that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle with any blood-alcohol or breath-alcohol level, and the results of any blood or breath test or an affidavit stating that a breath test was requested by a law enforcement officer or correctional officer and that the person refused to submit to such test. The failure of the officer to submit materials within the 5-day period specified in this subsection does not bar the department from considering any materials submitted at or before the hearing.

(4) If the department finds that the license of the person should be suspended under this section and if the notice of suspension has not already been served upon the person by a law enforcement officer or correctional officer as provided in subsection (2), the department shall issue a notice of suspension and, unless the notice is mailed under s. 322.251, a temporary driving permit that expires 10 days after the date of issuance if the driver is otherwise eligible.

(5) If the person whose license is suspended requests an informal review under subparagraph (2)(b)3., the department shall conduct the informal review by a hearing officer employed by the department within 30 days after the request is received by the department and shall issue such person a temporary driving permit for business purposes only to expire on the date that such review is scheduled to be conducted if the person is otherwise eligible. The informal review hearing must consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person whose license is suspended, and the presence of an officer or witness is not required.

(6) After completion of the informal review, notice of the department’s decision sustaining, amending, or invalidating the suspension of the driver’s license must be provided to the person. The notice must be mailed to the person at the last known address shown on the department’s records, or to the address provided in the law enforcement officer’s report if such address differs from the address of record, within 7 days after completing the review.

(7)(a) If the person whose license is suspended requests a formal review, the department must schedule a hearing to be held within 30 days after the request is received by the department and must notify the person of the date, time, and place of the hearing and shall issue such person a temporary driving permit for business purposes only to expire on the date that such review is scheduled to be conducted if the person is otherwise eligible.

(b) The formal review hearing must be held before a hearing officer employed by the department, and the hearing officer may administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension. The department and the person whose license was suspended may subpoena witnesses, and the party requesting the presence of a witness is responsible for paying any witness fees and for notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds the failure to be without just cause, the right to a formal hearing is waived and the suspension is sustained.

(c) A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court constitutes contempt of court. However, a person may not be held in contempt while a subpoena is being challenged.

(d) The department must, within 7 days after a formal review hearing, send notice to the person of the hearing officer’s decision as to whether sufficient cause exists to sustain, amend, or invalidate the suspension.

(8) In a formal review hearing under subsection (7) or an informal review hearing under subsection (5), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review is limited to the following issues:

(a) If the license was suspended because the individual, then under the age of 21, drove with a blood-alcohol or breath-alcohol level of 0.02 or higher:

1. Whether the law enforcement officer had probable cause to believe that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-alcohol or breath-alcohol level or while under the influence of alcoholic beverages.

2. Whether the person was under the age of 21.

3. Whether the person had a blood-alcohol or breath-alcohol level of 0.02 or higher.

(b) If the license was suspended because of the individual’s refusal to submit to a breath test:

1. Whether the law enforcement officer had probable cause to believe that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-alcohol or breath-alcohol level or while under the influence of alcoholic beverages.

2. Whether the person was under the age of 21.

3. Whether the person refused to submit to a breath test after being requested to do so by a law enforcement officer or correctional officer.

4. Whether the person was told that if he or she refused to submit to a breath test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

(9) Based on the determination of the hearing officer under subsection (8) for both informal hearings under subsection (5) and formal hearings under subsection (7), the department shall:

(a) Sustain the suspension of the person’s driving privilege 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 previously suspended, as provided in this section, as a result of a refusal to submit to a test. The suspension period commences on the date of the issuance of the notice of suspension.

(b) Sustain the suspension of the person’s driving privilege for a period of 6 months for driving or being in actual physical control of a motor vehicle while under the age of 21 with a blood-alcohol or breath-alcohol level of 0.02 or higher, or for a period of 1 year if the driving privilege of such person has been previously suspended under this section. The suspension period commences on the date of the issuance of the notice of suspension.

(10) A request for a formal review hearing or an informal review hearing shall not stay the suspension of the person’s driver’s license. If the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the suspension. If the scheduled hearing is continued at the department’s initiative, the department shall issue a temporary driving permit that is valid until the hearing is conducted if the person is otherwise eligible for the driving privilege. The permit shall not be issued to a person who requested a continuance of the hearing. The permit issued under this subsection authorizes driving for business or employment use only.

(11) A person whose driver’s license is suspended under subsection (2) or subsection (4) may apply for issuance of a license for business or employment purposes only, pursuant to s. 322.271, if the person is otherwise eligible for the driving privilege. However, such a license may not be issued until 30 days have elapsed after the expiration of the last temporary driving permit issued under this section.

(12) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or correctional officer, including documents relating to the administration of a breath test or the refusal to take a test. However, as provided in subsection (7), the driver may subpoena the officer or any person who administered a breath or blood test.

(13) The formal review hearing and the informal review hearing are exempt from chapter 120. The department may adopt rules for conducting reviews under this section.

(14) A person may appeal any decision of the department sustaining a suspension of his or her driver’s license by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted under s. 322.31. However, an appeal does not stay the suspension. This subsection does not provide for a de novo appeal.

(15) The decision of the department under this section shall not be considered in any trial for a violation of s. 316.193, nor shall any written statement submitted by a person in his or her request for departmental review under this section be admissible into evidence against him or her in any such trial. The disposition of any related criminal proceedings shall not affect a suspension imposed under this section.

(16) By applying for and accepting and using a driver’s license, a person under the age of 21 years who holds the driver’s license is deemed to have expressed his or her consent to the provisions of this section.

(17) A breath test to determine breath-alcohol level pursuant to this section may be conducted as authorized by s. 316.1932 or by a breath-alcohol test device listed in the United States Department of Transportation’s conforming-product list of evidential breath-measurement devices. The reading from such a device is presumed accurate and is admissible in evidence in any administrative hearing conducted under this section.

(18) The result of a blood test obtained during an investigation conducted under s. 316.1932 or s. 316.1933 may be used to suspend the driving privilege of a person under this section.

(19) A violation of this section is neither a traffic infraction nor a criminal offense, nor does being detained pursuant to this section constitute an arrest. A violation of this section is subject to the administrative action provisions of this section, which are administered by the department through its administrative processes. Administrative actions taken pursuant to this section shall be recorded in the motor vehicle records maintained by the department. This section does not bar prosecution under s. 316.193. However, if the department suspends a person’s license under s. 322.2615 for a violation of s. 316.193, it may not also suspend the person’s license under this section for the same episode that was the basis for the suspension under s. 322.2615.

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322.271. Authority to modify revocation, cancellation, or suspension order

(1)(a) Upon the suspension, cancellation, or revocation of the driver’s license of any person as authorized or required in this chapter, except a person whose license is revoked as a habitual traffic offender under s. 322.27(5) or a person who is ineligible to be granted the privilege of driving on a limited or restricted basis under subsection (2), the department shall immediately notify the licensee and, upon his or her request, shall afford him or her an opportunity for a hearing pursuant to chapter 120, as early as practicable within not more than 30 days after receipt of such request, in the county wherein the licensee resides, unless the department and the licensee agree that such hearing may be held in some other county.

(b) A person whose driving privilege has been revoked under s. 322.27(5) may, upon expiration of 12 months from the date of such revocation, petition the department for reinstatement of his or her driving privilege. Upon such petition and after investigation of the person’s qualification, fitness, and need to drive, the department shall hold a hearing pursuant to chapter 120 to determine whether the driving privilege shall be reinstated on a restricted basis solely for business or employment purposes.

(c) For the purposes of this section, the term:

1. “A driving privilege restricted to business purposes only” means a driving privilege that is limited to any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes.

2. “A driving privilege restricted to employment purposes only” means a driving privilege that is limited to driving to and from work and any necessary on-the-job driving required by an employer or occupation.

Driving for any purpose other than as provided by this paragraph is not permitted by a person whose driving privilege has been restricted to employment or business purposes. In addition, a person whose driving privilege is restricted to employment or business purposes remains subject to any restriction that applied to the type of license which the person held at the time of the order of suspension, cancellation, or revocation.

(2) At such hearing, the person whose license has been suspended, canceled, or revoked may show that such suspension, cancellation, or revocation causes a serious hardship and precludes the person from carrying out his or her normal business occupation, trade, or employment and that the use of the person’s license in the normal course of his or her business is necessary to the proper support of the person or his or her family.

(a) Except as otherwise provided in this subsection, the department shall require proof of the successful completion of the applicable department-approved driver training course operating pursuant to s. 318.1451 or DUI program substance abuse education course and evaluation as provided in s. 316.193(5). Letters of recommendation from respected business persons in the community, law enforcement officers, or judicial officers may also be required to determine whether the person should be permitted to operate a motor vehicle on a restricted basis for business or employment use only and in determining whether such person can be trusted to so operate a motor vehicle. If a driver’s license has been suspended under the point system or under s. 322.2615, the department shall require proof of enrollment in the applicable department-approved driver training course or licensed DUI program substance abuse education course, including evaluation and treatment, if referred, and may require letters of recommendation described in this paragraph to determine if the driver should be reinstated on a restricted basis. If the person fails to complete the approved course within 90 days after reinstatement or subsequently fails to complete treatment, the department shall cancel his or her driver’s license until the course and treatment, if applicable, is successfully completed, 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 has reentered and is currently participating in treatment and has completed the DUI education course and evaluation requirement. 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 privilege of driving on a limited or restricted basis for business or employment use may not be granted to a person who has been convicted of a violation of s. 316.193 until completion of the DUI program substance abuse education course and evaluations as provided in s. 316.193(5). Except as provided in paragraph (c), the privilege of driving on a limited or restricted basis for business or employment use may not be granted to a person whose license is revoked pursuant to s. 322.28 or suspended pursuant to s. 322.2615 and who has been convicted of a violation of s. 316.193 two or more times or whose license has been suspended two or more times for refusal to submit to a test pursuant to s. 322.2615 or former s. 322.261.

(b) The department may waive the hearing process for suspensions and revocations upon request by the driver if the driver has enrolled in [FN1] or completed the applicable driver training course approved under s. 318.1451 or the DUI program substance abuse education course and evaluation provided in s. 316.193(5). However, the department may not waive the hearing for suspensions or revocations that involve death or serious bodily injury, multiple convictions for violations of s. 316.193 pursuant to s. 322.27(5), or a second or subsequent suspension or revocation pursuant to the same provision of this chapter. This paragraph does not preclude the department from requiring a hearing for any suspension or revocation that it determines is warranted based on the severity of the offense.

(c) A person whose license has been revoked for a period of 5 years or less pursuant to s. 322.28(2)(a) may, 12 months after the date the revocation was imposed, petition the department for reinstatement of his or her driving privilege on a restricted basis. A person whose license has been revoked for more than 5 years under s. 322.28(2)(a) may, 24 months after the date the revocation was imposed, petition the department for reinstatement of his or her driving privilege on a restricted basis. Reinstatement under this subsection is restricted to business or employment purposes only. In addition, the department shall require such persons upon reinstatement to have not driven and to have been drug free for at least 12 months immediately before the reinstatement, to be supervised by a DUI program licensed by the department, and to report to the program at least three times a year as required by the program for the duration of the revocation period for supervision. Such supervision includes evaluation, education, referral into treatment, and other activities required by the department. Such persons shall assume reasonable costs of supervision. If the person fails to comply with the required supervision, the program shall report the failure to the department, and the department shall cancel the person’s driving privilege. This paragraph does not apply to any person whose driving privilege has been permanently revoked.

(d) For the purpose of this section, a previous conviction of driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other similar alcohol-related or drug-related offense outside this state or a previous conviction of former s. 316.1931, former s. 316.028, or former s. 860.01 is considered a previous conviction for violation of s. 316.193.

(e) The department, based upon review of the licensee’s application for reinstatement, may require use of an ignition interlock device pursuant to s. 322.2715.

(3) Upon such hearing, the department shall either suspend, affirm, or modify its order and may restore to the licensee the privilege of driving on a limited or restricted basis for business or employment use only.

(4) Notwithstanding the provisions of s. 322.28(2)(e), a person whose driving privilege has been permanently revoked because he or she has been convicted of DUI manslaughter in violation of s. 316.193 and has no prior convictions for DUI-related offenses may, upon the expiration of 5 years after the date of such revocation or the expiration of 5 years after the termination of any term of incarceration under s. 316.193 or former s. 316.1931, whichever date is later, petition the department for reinstatement of his or her driving privilege.

(a) Within 30 days after the receipt of such a petition, the department shall afford the petitioner an opportunity for a hearing. At the hearing, the petitioner must demonstrate to the department that he or she:

1. Has not been arrested for a drug-related offense during the 5 years preceding the filing of the petition;

2. Has not driven a motor vehicle without a license for at least 5 years prior to the hearing;

3. Has been drug-free for at least 5 years prior to the hearing; and

4. Has completed a DUI program licensed by the department.

(b) At such hearing, the department shall determine the petitioner’s qualification, fitness, and need to drive. Upon such determination, the department may, in its discretion, reinstate the driver’s license of the petitioner. Such reinstatement must be made subject to the following qualifications:

1. The license must be restricted for employment purposes for not less than 1 year; and

2. Such person must be supervised by a DUI program licensed by the department and report to the program for such supervision and education at least four times a year or additionally as required by the program for the remainder of the revocation period. Such supervision shall include evaluation, education, referral into treatment, and other activities required by the department.

(c) Such person must assume the reasonable costs of supervision. If such person fails to comply with the required supervision, the program shall report the failure to the department, and the department shall cancel such person’s driving privilege.

(d) If, after reinstatement, such person is convicted of an offense for which mandatory revocation of his or her license is required, the department shall revoke his or her driving privilege.

(e) The department shall adopt rules regulating the providing of services by DUI programs pursuant to this section.

(5) A person may not be issued a commercial driver’s license during a period in which such person is disqualified from operating commercial motor vehicles or in which the driving privilege of such person is suspended, revoked, or canceled.