frequently asked questions

Driving Under the Influence, or “D.U.I.”, is found in Florida Statute 316.193 which makes it illegal for anyone to drive, or to be in actual physical control of a vehicle when that person is either under the influence of alcoholic beverages, any chemical substance set forth in Florida Statute 877.111 or any substance controlled under Chapter 893, when affected to the extent that the person’s normal faculties are impaired (Florida Statute 316.193(1)(a)), or when that person has a blood alcohol level of 0.08 or more (Florida Statute 316.193(1)(b)) or when that person has a breath alcohol level of 0.08 or more (Florida Statute 316.193(1)(c)). Thus, the State can proceed with a DUI prosecution on any one of following three theories: Either they have a breath or a blood sample which is above the legal limit of 0.08 (and which provides a rebuttable presumption of impairment, see Florida Statute 316.1934(2)(c)), or they have competent evidence to attempt to prove beyond a reasonable doubt that the person’s normal faculties were impaired without the benefit of blood or breath results. Common examples of evidence which the State will put forth to show impairment include, but are not limited to, the person’s driving pattern (i.e. the basis for the traffic stop, weaving, failure to obey a traffic control device), observations of the arresting officer (i.e. failure to pull over in either a timely fashion or in a safe manner, leaning on car for support or balance) and results of roadside sobriety exams (a/k/a field sobriety tests, i.e. one-legged stand, walk and turn test, finger to nose test).

By virtue of accepting a Florida Driver License a licensed driver consents to the taking of “any sobriety test provided by law” (Florida Statute 316.1932(1)(a)(1)(b)), and this would include a breathalyzer examination. However, it is a common misconception that a driver is obligated to submit to a breathalyzer test. In fact, a driver has every right to refuse to submit to a breathalyzer examination. There are three (3) main differences between taking a breathalyzer test and refusing. First, a driver who takes the breathalyzer examination and who blows over the legal limit will find him or herself facing a “breath card”, a computerized printout of the results of breathalyzer test, which will likely be physically admitted into evidence at the DUI trial. (It should be noted, however, that the results of the breathalyzer examination are, like any other piece of evidence, subject to suppression.) Second, a person who refuses to submit to a breathalyzer test will, on a first offense, receive an automatic twelve (12) month suspension of their driving privilege, as opposed to the automatic six (6) month suspension that the same person would receive if their breath result is over the legal limit. In other words, assuming that the driver is legally intoxicated (over 0.08), that person’s license is going to get suspended regardless of whether he or she blows into the breathalyzer. Finally, a hardship driving permit is available to a person cited for DUI after thirty (30) days of “hardtime” (no driving) in the event of a breath result over the legal limit whereas the hardtime is a ninety (90) day poeiod in the event of a refusal. Thus the issues becomes the duration of the suspension, the amount of hardtime and the existence of the breath card. (It should be noted that regardless of whether the suspension results from one blowing over the legal limit or refusing, the driver has an administrative right to petition the Department of Highway Safety and Motor Vehicles to set-aside the suspension of their driving privilege, as well as the hardtime, but such a request must be made with ten (10) days of the date of issuance of the DUI citation or the right is forever waived.) The only circumstance where a person does not have a right to refuse is in the case of a blood test for impairment or intoxication where there has been an accident resulting in serious bodily injury or death (Florida Statute 316.1933). In such a case the driver has no right to refuse a withdrawal of blood, however, the withdrawal must be done by a medical professional, according to strict regulation and there must in fact be probable cause for the officer to believe that “a motor vehicle being driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances or any controlled substances has caused the death or serious bodily injury of a human being” (Florida Statute 316.1933(1)(a)).

As with many offenses DUI carries certain minimum mandatory penalties. These penalties can be enhanced when a driver has multiple DUI offenses on his or her record, when a driver has either a blood or a breath alcohol level of .20 or higher or when a driver had a person under the age of 18 in the vehicle at the time of the offense (Florida Statute 316.193(4)). The minimum mandatory penalties (Florida Statute 316.193) in all DUI cases include a fine ($250.00 to $500.00 for a first DUI, $500.00 to $1,000.00 for a second DUI, $1,000.00 to $2,500.00 for a third DUI and a minimum of $1,000.00 for a fourth DUI), monthly reporting probation (six (6) to twelve (12) months for any misdemeanor DUI), completion of substance abuse course / DUI driving school (Level I for a first, Level II for a second, and so on); a psychosocial evaluation and any treatment required thereby, community service hours (minimum of 50 for a first DUI), vehicle impoundment or immobilization (10 days for a first DUI, 30 days for a second DUI, and 90 days for a third DUI) and suspension of the driver’s driving privilege (___________). Although a first time DUI offender faces up to six (6) months in the county jail, there is no mandatory jail time associated with a first DUI. However, a driver who is convicted of a second DUI within five (5) years of his/her first faces a minimum mandatory of ten (10) days, and up to nine (9) months in the county jail. A driver who is convicted of a third DUI within ten (10) years of his/her second faces a minimum mandatory of thirty (30) days, and up to five (5) years in state prison as a third DUI with ten (10) is a third degree felony (as is a fourth DUI regardless of when the third had occurred). There are additional enhancements for DUI offenses which cause serious bodily injury to a person (including the DUI driver), bumping what would otherwise be a misdemeanor to a third degree felony (Florida Statute 316.193(3)(c)(2)), or those which result in a fatality which are thereby bumped to either a second or a first degree felony. (It should be noted that DUI Manslaughter cases are also almost always accompanied by a charge of vehicular homicide, another second degree felony, and while the driver cannot be convicted of both offenses for the same fatality, the driver can be so charged and simultaneously prosecuted.)

Perhaps the most important thing to know about DUI is that it is a very serious offense which is generally prosecuted with great aggression. There are time deadlines (i.e. for administrative relief in regard to the driver license suspension), a great deal of paperwork, potentially complex issues of a scientific and oftentimes medical nature, intricate defense investigation and these cases generally require a lot of time and attention. A good rule of thumb is to contact an attorney as soon as possible after being arrested for DUI.

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