Florida Legislative Update “Blue Alert”
New statute 784.071 creates a “blue alert”. A blue alert shall be issued (by FDLE, in cooperation with DHSMV and DOT) when requested by an authorized person employed at a law enforcement agency when all of the following conditions are met:
1.) A law enforcement officer has been killed, has suffered serious bodily injury, has been assaulted with a deadly weapon or is missing while in the line of duty under circumstances evidencing concern for the officer’s safety and
2.) The suspect has fled the scene of the offense
3.) The investigating law enforcement agency determines that the suspect poses an imminent threat to the public or to other LEOs
4.) A detailed description of the suspect’s vehicle, or other means of escape, or the license plate of the suspect’s vehicle is available for broadcasting
5.) Dissemination of available information to the public may help avert further harm or assist in the apprehension of the suspect, and
6.) If the LEO is missing, there is sufficient information available relating to the officer’s last known location and physical description, and the description of the vehicle involved, including the license plate number or other identifying information, to be broadcast to the public and other law enforcement agencies, which could assist in locating the missing LEO.
In addition to the “blue alert” law…
Effective June 2, 2011:
This contains what is called the “Tourist Safety Act of 2011”. The offense of delivering, distributing, or placing (or the attempt to do so) a handbill at or in a public lodging establishment is a first degree misdemeanor. While a second or third violation remains a first degree misdemeanor, additions to this section specify a minimum fine of $2,000 for a second violation and a minimum fine of $3,000 for a third or subsequent violation. New subsection 509.144(6) provides that any personal property used (or attempted to be used) as an instrumentality in the commission of a third or subsequent violation is subject to forfeiture under the Florida Contraband Forfeiture Act.
New section 901.1503 provides that an officer may give a notice to appear without a warrant when the officer has probable cause to believe that a violation of 509.144 has occurred and the owner or manager of the public lodging establishment in which the violation occurred and one additional affiant sign an affidavit containing information that supports the officer’s determination of probable cause.
Effective June 17, 2011:
This deals with some changes to Chapter 790 which deals with weapons and firearms. An amendment to Subsection 790.053(1), dealing with the open carrying of weapons, now provides that it is not illegal for a person with a CCF license to “briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense”.
Although it would seem to go without saying that a person licensed to carry a concealed firearm can lawfully carry the firearm in a vehicle, new subsection 790.06(12)(b) now specifically provides this, if it is being carried or stowed in the vehicle “for lawful purposes”.
Section 790.28, which stated that the purchase of rifles and shotguns in contiguous states was permitted as long as the purchaser abided by the laws of the United States, the contiguous state and Florida, was repealed, as the contiguous-state law that it was based upon no longer exists. Subsection (c) was added to 790.065 which provides for the purchase of rifles and shotguns from dealers in any state.
Effective July 1, 2011:
Chapters 2011-73 and 2011-90:
Both of these laws add controlled substances to the same numbered subsections of Schedule I(c) of 893.03. One can only hope that someone figures the duplication out by the time the new statute books are printed and the numbering will not be 40 to 44 and 40 to 45, but 40 to 51. The names of these controlled substances are long and difficult to spell, but they are, in essence, different chemical compositions of synthetic cannabis and synthetic cocaine (“bath salts”). Chapter 2011-73 states that it is a misdemeanor of the first degree to possess not more than 3 grams of the synthetic cannabinoids; over 3 grams is a felony.
The legislature made a finding that it is a public necessity that any criminal intelligence information or criminal investigation information that is a photograph, videotape, or image of any part of the body of a victim of the sexual offense of video voyeurism prohibited by s. 810.145 be made confidential and exempt from public records requirements. This exemption was added to 119.071(2)(h)1.c., in the list of “agency investigation” exemptions from the public records law.
While not a criminal violation, this is one of my favorite enactments of this stellar legislative session. While the state budget reduced funding for public schools throughout the state, the legislature felt compelled to set a dress code at public schools throughout the state prohibiting clothing that exposes underwear or body parts “in an indecent or vulgar manner or that disrupts the orderly learning environment”. Lack of funding might also disrupt the orderly learning environment…
This chapter adds to the exemptions found in 119.071(2)(h) and makes confidential and exempt any photograph or video or audio recording that depicts or records the killing of a person. “Killing of a person” is defined as all acts or events that cause or otherwise relate to the death of any human being, including any related acts or events immediately preceding or subsequent to the acts or events that were the proximate cause of death. It provides for access to the materials by specified persons or agencies for certain purposes. It provides for access pursuant to court order and provides guidelines for the determination. If a custodian of the material willfully and knowingly violates this section or a court order, it is a third degree felony.
This is the “Pill Mill Bill”. New section 456.44 is created to deal with the prescribing of controlled substances. Physicians who prescribe controlled substances for the treatment of chronic, nonmalignant pain must register as such effective January 1, 2012 and comply with the requirements of this section. There are also additional requirements for pain management clinics.
New subsection 458.327(1)(f) makes it a third degree felony for a physician to dispense a controlled substance listed in schedules II or III in violation of section 465.0276. New subsection 459.013(1)(f) likewise makes it a third degree felony for osteopaths to dispense controlled substances in violation of the same section.
New subsection 465.015(3) makes it a first degree misdemeanor for pharmacists to fail to report within 24 hours to law enforcement when controlled substances have been obtained, or attempted to be obtained, by fraud. The subsection sets forth the minimum information that must be provided to law enforcement with regard to these frauds.
New subsection 499.0051(16) makes it a third degree felony to submit a false report with regard to distribution (of controlled substances) reporting required by section 499.0121(14). New subsection 499.0051(17) makes it a third degree felony to engage in the wholesale distribution of prescription drugs and knowingly distribute controlled substances in violation of 499.0121(14).
A new subsection in the burglary statute, 810.02(3)(f), makes it a second degree felony to burglarize a structure or conveyance (normally third degree felonies) when the offense intended to be committed therein is theft of a controlled substance.
A new subsection in the theft statute, 812.014(2)(c)13, make theft of any amount of a controlled substance a third degree felony.
An amendment to 893.07(4) provides that law enforcement officers are not required to obtain a subpoena, court order, or search warrant in order to obtain access to or copies of any of the records required to be kept under this chapter. New subsection 893.03(5)(b) requires that the discovery of any theft or significant loss of controlled substances must be reported within 24 hours. Failure to report theft or loss of controlled substances listed in 893.03(3), (4) or (5) is a second degree misdemeanor. Failure to report the theft or loss of substances listed in 893.03(2) is a first degree misdemeanor.
New subsections under 893.13(7) state that it is a third degree felony for either a person to obtain, or a health care practitioner to provide, a controlled substance or a prescription for a controlled substance by misrepresentation, fraud, forgery, deception, subterfuge or concealment of a material fact, with the intent to obtain a controlled substance that is not medically necessary or in an amount not medically necessary. “A material fact” includes whether the person has an existing prescription for a controlled substance issued for the same period of time by another practitioner. These subsections are limited to controlled substances listed in Schedules II, III or IV.
The following are now violations of injunctions against repeat violence, sexual violence or dating violence, issued pursuant to 784.046:
- Being within 500 feet of the petitioner’s residence, school, place of employment or any other location specified in the injunction frequented regularly by the petitioner and any named family or household member
- Knowing and intentionally coming within 100 feet of the petitioner’s motor vehicle, whether the vehicle is occupied or not
- Defacing or destroying the petitioner’s personal property, including the petitioner’s motor vehicle
- Refusing to surrender firearms or ammunition if ordered to do so by the court
This chapter makes same changes to the laws governing service of process. If you are regularly involved in this process, you will want to read these amendments in their entirety. All of the amendments appear to make the job of the process server a little easier. Of particular note to law enforcement, in case you may be called upon by security at a gated residential community to resolve a dispute, is a new subsection 48.031(7) which provides that a gated residential community, including a condominium association or a cooperative, shall grant unannounced entry into the community, including its common areas and common elements, to a person who is attempting to serve process on a defendant or witness who resides within or is known to be within the community.
This amendment adds an enhanced sentencing section to s. 856.015, which deals with open house parties. A second or subsequent violation of this section is now a first degree misdemeanor. It is also a first degree misdemeanor if a violation causes or contributes to causing serious bodily injury or the death of the minor, or if the minor causes or contributes to causing serious bodily injury or the death of another as a result of the minor’s consumption of alcohol or drugs at the open house party.
While subsection 395.1021(2) previously provided that emergency room facilities must arrange for appropriate medical attention, treatment and gathering of forensic medical evidence from sexual assault victims required for an investigation and/or prosecution, it now provides for the same services to such a victim whether the victim has already reported the sexual battery to law enforcement or the victim hasn’t reported the sexual battery but may possibly report it in the future.
The statute of limitations for video voyeurism, section 810.145, was extended to 1 year after the date the victim of the voyeurism obtains actual knowledge of the recording, or the date the recording is confiscated by law enforcement, whichever occurs first.
Amendments to 794.052, provide that an officer shall provide or arrange for transportation to an appropriate facility for the victim of a sexual battery and, in 794.052(c), that prior to submitting a final report the investigating officer shall permit the victim to review the report and provide a statement as to the accuracy of the final report. [When the word “shall” is used in legislation, it is interpreted as “must”.]
Testing for hepatitis has been added to section 960.03, which provides for HIV testing for persons charged with certain offenses. It also now provides for follow-up HIV testing, if medically appropriate.
Included in the same chapter, but not effective until October 1, 2011, amendments to section 827.071, sexual performance by a child, add the offenses of “controlling” or “intentionally viewing” to the prohibitions against media depicting any sexual conduct by a child. “Intentionally viewing” is defined as deliberately, purposefully and voluntarily viewing. Proof of intentional viewing requires establishing more than a single image, motion picture, exhibition, show, image, data, computer depiction, representation or other presentation over any period of time. It also includes an exception for material possessed, controlled, or intentionally viewed as part of a law enforcement investigation.
Effective October 1, 2011:
I would really like to know how this made its way onto the legislative agenda…New section 828.126 makes it a first degree misdemeanor to knowingly engage in sexual conduct or have sexual contact with an animal, or to aid and abet another person’s doing so, or to permit it on premises under one’s control, or to organize, promote, etc. such activity for a commercial or recreational purpose.
An amendment to 316.027(1)(b) provides that a person arrested for leaving the scene of a crash that results in the death of any person who has previously been convicted of 316.027 (Leaving the scene involving death or personal injuries), 316.061 (Leaving the scene involving property damage), 316.191 (Drag racing), 316.193 (DUI) or a felony violation of 322.34 (DWLSR) shall be held in custody until brought before a judge at a bond hearing.
In this law, the legislature has preempted the field of legislation as it relates to firearms to the state and federal governments only. Any existing county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local governments are declared null and void. The exception for county waiting period ordinances in 790.33(2) has been deleted. The legislature also added subsection (3) which provides for penalties to be exacted when county, city, town or other local governments take it upon themselves to enact or enforce ordinances, regulations or rules that relate to the regulation of firearms or ammunition. Such penalties include declaring the ordinance, regulation or rule invalid, issuing an injunction against the local government involved, civil fines of up to $5,000, a suit for declaratory and injunction relief and actual damages and “cause for termination of employment or contract or removal from office by the governor”.
There are some exceptions. This section does not prohibit
- Zoning ordinances unless the ordinances are designed for the purpose of restricting or prohibiting the sale, purchase, transfer or manufacture or firearms or ammunition
- Law enforcement agencies from enacting and enforcing regulations pertaining to firearms, ammunition, or firearm accessories issued to or used by peace officers in the course of their official duties
- An entity subject to the prohibitions of this section from regulating or prohibiting the carrying of firearms and ammunition by an employee of the entity during and in the course of the employee’s official duties
- A court or administrative law judge from hearing cases or controversies and issuing opinions or orders otherwise within the jurisdiction of the court or judge, or
- Fish and Wildlife Commission from regulating the use of firearms or ammunition as a method of taking wildlife and the regulating their shooting ranges
Amendments to section 327.33 make it a second degree misdemeanor when violations of navigational rules result in a boating accident causing serious bodily injury, even if it does not involve reckless operation of the vessel. If it does not involve reckless operation of the vessel nor result in serious bodily injury, it remains a non-criminal infraction.
“Sexting” is a new offense. It is described as a minor knowingly using a computer (or other data transmitting device) to transmit or distribute to another minor any photograph or video which depicts nudity (as defined in s.847.001(9)) and is harmful to minors (as defined in s. 847.001(6)). It is also illegal for a minor to possess a photograph or video of any person that was transmitted by another minor which depicts nudity and is harmful to minors. It is not illegal for a minor to possess such a photo or video if
- The minor did not solicit the photo or video,
- The minor took reasonable steps to report the photo or video to his or her legal guardian, a school or law enforcement officer, and
- The minor did not transmit or distribute the photo or video to a third party.
The transmission of multiple images within the same 24-hour period is a single offense.
A first offense is a non-criminal violation. A second offense is a first degree misdemeanor. A third offense is a third degree felony. Prosecution under this section does not preclude a minor’s prosecution under any other law of this state that applies, specifically including stalking.
New subsection 817.60(8) makes it a third degree felony to knowingly possess, receive, or retain custody of a credit or debit card that has been taken from the possession, custody, or control of another without the cardholder’s consent with the intent to impede the recovery of the credit or debit card by the cardholder. Retailers and retail employees who, in the ordinary course of business, receive, hold or return a credit or debit card not knowing it is stolen or receive, hold or return a card knowing it is stolen, for the purpose of investigation, have not violated this subsection.