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DUI Cases in Florida

A charge of driving under the influence is one of the most common cases you will see in Florida Misdemeanor Courts. These cases are common because it can happen to “anyone”; DUI cases do not require the prosecution to prove intent on the part of the vehicle operator. DUI cases can be incredibly complex to navigate to achieve the best possible result. There are a whole host of common misunderstandings when it comes to your defense in a DUI case. Information can be found below or you may contact our team with questions.

Call 813-496-7778 to schedule your free consultation and discuss the best strategies for your case.

We represent men and women arrested for driving under the influence in Hillsborough County, Hernando County, Pasco County, Pinellas County, and Polk County.

§ 316.193(1), Fla. Stat.

To prove the crime of Driving Under the Influence, the State must prove the following two elements beyond a reasonable doubt:

  1. (Defendant) drove or was in actual physical control of a vehicle.
  2. While driving or in actual physical control of the vehicle, (defendant)
    1. was under the influence of alcoholic beverages, or a chemical/controlled substance to the extent that his or her normal faculties were impaired, OR
    2. had a blood/breath-alcohol level of .08 or more grams of alcohol per 100 milliliters of blood/210 liters of breath.

“Vehicle” is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Impaired means diminished in some material respect. Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).

Actual physical control of a vehicle means the defendant must be physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

In cases where the State charged the defendant with driving with a blood or breath-alcohol level of 0.08 or over, if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

The Elements of a DUI Charge
Legal Definitions of DUI

DUI Penalties

If you are convicted of a DUI under § 316.193(1), the following penalties apply:

A fine of:

  • First conviction:
    • Not less than $500 or more than $1,000.
    • If blood/breath alcohol level (BAL) was .15 or higher, or if there was a minor in the vehicle, not less than $1,000 or more than $2,000.
  • Second conviction:
    • Not less than $1,000 or more than $2,000.
    • If BAL was .15 or higher, or if there was a minor in the vehicle, not less than $2,000 or more than $4,000.
  • Third conviction (within 10 years from the second offense):
    • Not less than $2,000 or more than $5,000.
    • If BAL was .15 or higher, or if there was a minor in the vehicle, not less than $4,000.
  • Third conviction (more than 10 years from second):
    • Not less than $2,000 or more than $5,000.
    • If BAL was .15 or higher, or if there was a minor in the vehicle, not less than $4,000.
  • Fourth or subsequent conviction: 
    • Not less than $2,000.
    • If BAL was .15 or higher, or if there was a minor in the vehicle, not less than $4,000.

Imprisonment for:

  • First conviction:
    • Not more than six months.
    • If BAL was .15 or higher, or if there was a minor in the vehicle, not more than nine months.
  • Second conviction:
    • Not more than nine months.
    • If BAL was .15 or higher, or if there was a minor in the vehicle, not more than 12 months.
    • If second conviction was within five years of a prior conviction, mandatory imprisonment of at least 10 days. At least 48 hours of confinement must be consecutive.
  • Third conviction:
    • If third conviction is within 10 years of a prior conviction, mandatory imprisonment of at least 30 days. At least 48 hours of confinement must be consecutive.
    • If third conviction is more than 10 years of a prior conviction, imprisonment for not more than 12 months.
  • Fourth or subsequent conviction:
    • Not more than five years, or as provided in section 775.084, Florida Statutes, if habitual/violent offender.

Minimum Mandatory Sanctions

Florida law also requires certain minimum mandatory sanctions for DUIs depending on a person’s DUI history (is it a first offense, second offense, etc.) and whether a person provided a breath sample over/under .150 or refused. These mandatory sanctions can include:

  • 6 Month – Lifetime Driver’s License Revocation
  • Community Service Hours
  • Vehicle Impoundment
  • DUI School
  • Victim Impact Panel
  • Ignition Interlock

Aggravating Circumstances

A 1st offense DUI in Florida is classified as a 2nd degree misdemeanor except under certain circumstances where it can be charged as a 1st degree misdemeanor or as a felony. Those aggravating circumstances include:

  • Damage to the property of another (1st degree misdemeanor)
  • A 3rd DUI conviction that occurs within 10 years of the prior conviction (3rd degree felony)
  • A 4th (or more) lifetime DUI conviction, regardless of when prior convictions occurred (3rd degree felony)
  • Serious bodily injury (3rd degree felony)
  • Death – DUI manslaughter (1st or 2nd degree felony)

These charges are often accompanied by penalty enhancements including larger fines and longer possible prison sentences.

Repeat DUI Offender

A third DUI conviction within 10 years of a prior conviction or a fourth or subsequent DUI, is a third degree felony (not more than $5,000 fine and/or five years imprisonment).

Serious Bodily Injury

A DUI crash causing serious bodily injury is a third degree felony (not more than $5,000 fine and/or five years imprisonment) or as provided in section 775.084, Florida Statutes, if habitual/violent felony offender.

Property Damage or Personal Injury

A DUI crash causing property damage or personal injury to another is a first degree misdemeanor (not more than $1,000 fine or one-year imprisonment).

Manslaughter and Vehicular Homicide

  • DUI Manslaughter: Second degree felony (not more than $10,000 fine and/or 15 years imprisonment).
  • DUI Manslaughter and Leaving the Scene: A driver convicted of DUI manslaughter who knew/should have known the crash occurred, but failed to give information or render aid is guilty of a first degree felony (not more than $10,000 fine and/or 30 years imprisonment).
  • Vehicular Homicide: Second degree felony (not more than $10,000 fine and/or 15 years imprisonment).
  • Vehicular Homicide and Leaving the Scene: A driver convicted of vehicular homicide who left the scene of a crash is guilty of a first degree felony (not more than $10,000 fine and/or 30 years imprisonment).
Penalties for DUI Charges

Withhold of Adjudication Prohibited for DUI

Pursuant to section 316.656, Florida Statutes, no court shall suspend, defer, or withhold adjudication of guilt or the imposition of sentence for the offense of driving or being in actual physical control of a motor vehicle while having an unlawful blood alcohol level or while under the influence of alcoholic beverages, any chemical substance set forth in section 877.111, Florida Statutes, or any substance controlled by chapter 893, Florida Statutes.

Withholding Adjudication on a DUI

Administrative Law Issues

After a DUI, a Florida administrative suspension of your driver’s license will occur if either the breath or blood-alcohol test result is 0.08 or higher, OR there was a refusal to submit to a breath, blood, or urine test requested by a law enforcement officer at the scene.

The suspension is effective immediately. The officer will issue the driver a temporary permit valid for 10 days from the date of arrest, provided the driver is otherwise eligible.

In the case of a breath or blood-alcohol level of 0.08 or above, driving privilege will be suspended for a period of 6 months for a first offense or for a period of 1 year if your driving privilege has been previously suspended under this section of the statute.

In the case of a refusal to submit to a breath, blood, or urine test, driving privilege will be suspended for a period of 1 year for a first refusal or for a period of 18 months if your driving privilege has previously been suspended as the result of a prior refusal to submit to such a test.

Review of Driver’s License Suspension

You can request a formal or informal review by the Department of Highway Safety and Motor Vehicles of the suspension within 10 days after the date of when your notice of suspension was issued. It is important to contact an attorney within that time so that you can discuss your options for review. Any decision resulting from either a formal or informal review can not be considered in any DUI trial, nor can any written statements made by the person suspended be used as evidence in a trial.

Formal Review Hearing

A formal review hearing is held before a hearing officer and conducted upon a review of the reports of a law enforcement officer, including documents related to a breath or blood test, or the refusal to take a breath, blood, or urine test. The driver may subpoena the officer or any person who administered or analyzed a test.

The hearing officer will look at the following issues to determine whether to invalidate or sustain the suspension:

  1. If the license was suspended for driving with a breath or blood-alcohol level of 0.08 or higher:
    1. Whether the law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances.
    2. Whether the person had an unlawful breath or blood-alcohol level of 0.08 or higher.
  2. If the license was suspended 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 motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances.
    2. Whether the person refused to submit to any such test after being requested to do so by a law enforcement officer.
    3. Whether the person was told that a refusal to submit to the test would result in a suspension of driving privileges for a period of 1 year, or in the case of a second or subsequent refusal, for a period of 18 months.

The hearing officer’s decision will be provided within 7 working days after the formal review hearing.

The driver may subpoena the officer or any person who administered or analyzed a test. If the officer or breath technician fails to appear at the hearing, the suspension will be invalidated.

Informal Review

An informal review conducted by a hearing officer consists solely of an examination of materials submitted to the department by the driver and the law enforcement officer. The driver may submit any materials related to the case. The law enforcement officer shall submit an affidavit stating the officer’s grounds for belief that the person was driving under the influence, the results of any breath or blood tests, an affidavit stating that the person refused to submit to a breath, blood or urine test, and the officer’s description of the person’s field sobriety exercises, if any. The officer may also submit crash reports and video recording of the field sobriety test.

After informal review is completed, a decision will be provided within 21 days after the expiration of the temporary permit issued upon suspension.

License for Business or Employment Purposes

If your driver’s license is suspended, you may apply for a license for business or employment purposes only.

If the suspension is related to an unlawful breath or blood-alcohol level of 0.08 or higher, you are eligible to receive a business or employment license 30 days after your temporary permit expires. If you were not issued a temporary permit because you were ineligible, you are eligible to receive a business or employment license 30 days after the date of your suspension.

If the suspension is for refusal to submit to a breath, blood, or urine test, you are eligible to receive a business or employment license 90 days after your temporary permit expires. If you were not issued a temporary permit because you were ineligible, you are eligible to receive a business or employment license 90 days after the date of your suspension.

No hardship license is available for two or more refusals.

Under the Age of 21

  • First suspension for persons under the age of 21 with an alcohol level of .02 or above, six months.
  • Second or subsequent suspensions for persons under the age of 21 with an alcohol level of .02 or above, one year.
  • If the breath or blood alcohol level is .05 or higher, the suspension remains in effect until completion of a substance abuse evaluation and course.
  • The temporary permit is not valid until 12 hours after issuance and is valid for 10 days, provided the driver is otherwise eligible.

Law enforcement officers can lawfully detain and request a breath-alcohol test from any person, under the age of 21, who the officer has probable cause to believe is driving or in actual physical control of a motor vehicle while under the influence of alcohol or having any alcohol level.

Driver’s license suspension for a DUI, Review hearing
  • Refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings.
  • Blood may be withdrawn in DUI cases involving serious bodily injury or death by authorized medical personnel with the use of reasonable force by the arresting officer, even if the driver refuses.
  • Any person who is unconscious and incapable of refusal will be deemed not to have withdrawn his consent to a test. A blood test may be administered whether or not such person is told that his failure to submit to a blood test will result in the suspension of his privilege to operate a motor vehicle.

Criminal Proceedings

Criminal proceedings do not affect a license suspension for refusal to submit to a breath, blood, or urine test. However, if the suspension was for unlawful breath or blood-alcohol level and the person was found not guilty at trial, the suspension will be invalidated.

Driver’s License Reinstatement if Convicted of DUI

  • First conviction:
    • Complete DUI school and apply to FLHSMV for hearing for possible hardship reinstatement.
    • Mandatory ignition interlock device (IID) for up to six months for BAL of .15.
  • Subsequent convictions:
    • No hardship license (except as provided below).
    • Mandatory IID for one to two years if BAL is greater than .15.
  • Second conviction within five years:
    • Five-year revocation.
    • After one year, may apply for hardship reinstatement hearing.
    • Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period.
    • May not consume any alcoholic beverage or controlled substance or drive a motor vehicle for 12 months prior to reinstatement.
    • Mandatory IID for one to two years if BAL is greater than .15.
  • Third conviction within 10 years of a prior conviction:
    • 10-year revocation.
    • After two years, may apply for hardship reinstatement hearing.
    • Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period.
    • May not consume any alcoholic beverage or controlled substance or drive a motor vehicle for 12 months prior to reinstatement.
    • Mandatory IID for two years.
  • DUI manslaughter with no prior DUI-related conviction:
    • Permanent revocation. May be eligible for hardship reinstatement after five years have expired, if:
      • Applicant has not been arrested for a drug-related offense for at least five years prior to the hearing;
      • Applicant has not driven a motor vehicle without a license for at least five years prior to the hearing;
      • Applicant has been alcohol and drug-free for at least five years prior to the hearing; and
      • Applicant must complete a DUI school and be supervised under the DUI program for the remainder of the revocation period.
    • An IID is required for two years.
  • Manslaughter, DUI serious bodily injury, or vehicular homicide convictions:
    • Three-year revocation.
    • May immediately apply for hardship reinstatement hearing.
    • Must complete DUI school or advanced driver improvement course.
Criminal Proceedings in DUI Cases

Commercial Motor Vehicle (CMV) / Commercial Driver’s License (CDL)

Persons who are licensed to operate a CMV may be disqualified from operating a CMV for one year in several instances, including:

  • Conviction for driving a CMV with a blood alcohol level of .04 or above;
  • Driving a CMV while under the influence of alcohol or a controlled substance, or refusing to submit to a test to determine the alcohol concentration;
  • Driving a CMV while in possession of a controlled substance.

Administrative Disqualification Law for Commercial Motor Vehicle Operators

  • First disqualification for driving a CMV while under the influence of alcohol or a controlled substance:
    • One year
  • Second or subsequent disqualification for driving a CMV while under the influence of alcohol or a controlled substance: 
    • Permanently disqualified
  • First disqualification for refusal to submit to breath, urine, or blood test:
    • One year
  • Second or subsequent disqualification for refusal to submit: 
    • Permanently disqualified

The disqualification is effective immediately.

The officer will issue the driver a temporary permit which is valid for 10 days from the date of arrest; however, the permit does not authorize the operation of a CMV, only for the operation of a non-commercial motor vehicle.

There are no provisions for persons disqualified from operating a CMV to obtain a hardship (business or employment) license to operate a CMV.

Commercial Motor Vehicle/Commercial Driver’s License DUI Law