DUI Defense

When you are charged with a DUI, you actually have two cases against you. The first is the criminal charges that exist under Florida Statute 316.193. The second is the administrative case with the Florida D.M.V. An arrest or conviction may also result in increased insurance costs, loss of work, and the inability to operate work or personal vehicles.

It is essential to seek the help of a Florida Criminal Defense Attorney to help you understand your case and all of its implications for you. If you do not act quickly after your arrest, your license will be suspended. An attorney can help you request a formal administrative hearing to keep your license or attain a hardship license after any required suspension time has elapsed. The DUI laws are statutorily– mandated. Some frequently asked questions are outlined below:

What is Driving Under the Influence (DUI)?

DUI is defined under s. 316.193, F.S. (Driving Under the Influence of Alcoholic Beverages, Chemical Substances or Controlled Substances). Under Florida law, DUI is one offense proven by impairment of normal faculties or unlawful blood alcohol or breath alcohol level of .08 or above. The penalties upon conviction are the same, regardless of the manner in which the offense is proven.

What are the financial penalties of DUI?

Fines are based on the statutorily–identified minimum and maximum amounts for the particular offense with which you are charged as well as any previous convictions you may have for the same offense. Judges have discretion to apply these fines as they see fit within the limitations of the statute.

Fine Schedule s. 316.193(2)(a)–(b), F.S.

Can the Judge require me to complete community service?

Absolutely. In some cases, where the defendant does not have the financial resources to pay fines, court costs, or probation supervision fees, the judge may substitute more community service hours in exchange for reducing those costs.

Community Service – s. 316.193 (6)(a), F.S.

First Conviction: Mandatory 50 hours of community service or additional fine of $10 for each hour of community service required.

For how long can the Judge place me on probation?

Probation – s. 316.193 (5)(6), F.S.

First conviction, total period of probation and incarceration may not exceed 1 year.

Can I go to Jail for DUI? What are the penalties?

Yes. Although it is not common that you will go to jail for a first conviction, the possibility still exists. Once again, the Judge in your case is given a fair amount of latitude in sentencing you somewhere between the minimum and maximum penalty periods, depending on the circumstances of your case. If you cause an accident with personal injury or are extremely uncooperative with the arresting officer, you may serve a period of incarceration even after a first conviction. The periods applicable in the statute are listed below.

Imprisonment– s. 316.193 (2)(a) 2, 4(b), (6)(j), F.S. Imprisonment for certain periods of time is always a possibility. There are even some circumstances where imprisonment is required, upon a conviction for DUI. Sometimes a required jail term may be served in a residential alcoholism or drug abuse treatment program, credited toward the term of imprisonment.

Can my car be impounded for DUI?

Yes. However, there are some limitations as listed below:

Impoundment of Immobilization of Vehicle – s. 316.193 (6), F.S.

Unless the family of the defendant has no other transportation, their vehicle can be suspended for different periods of time, depending on the final adjudication. If you are convicted, there are statutory periods for which your vehicle can be suspended.

If I am taken to jail after being stopped for suspicion of DUI, how long can they hold me?

Conditions for Release of Persons Arrested for DUI – s. 316.193 (9), F.S.

Generally they will require 8 hours to have elapsed since the arrest and release, as it is believed that it takes at least that long before the person arrested is no longer under the influence. In practice, even after your release is authorized, it can taken several more hours for the administrative paperwork to be completed and processed before you are physically free to go.

What is the penalty for causing an accident when convicted of DUI?

DUI Misdemeanor Conviction: (Accident Involving Property Damage or Personal Injury) – s. 316.193 (3), F.S.

A person who is convicted of causing property or personal injury is guilty of a first–degree misdemeanor (penalty: not more than $1,000 fine or 1–year imprisonment).

Under what circumstances can DUI be charged as a felony?

There are several cases where a DUI can be charged as a felony. They are listed in the statute. They generally involve multiple previous convictions for DUI and/or serious bodily injury.

DUI Felony Conviction: (Repeat Offenders or Accidents Involving Serious Bodily Injury) – s. 316.193 (2),(3) F.S.<

What are the penalties for causing a death during a DUI?

They are listed in the statute and involve serious penalties. A person charged with one of these offenses will likely face substantial fines and periods of incarceration if convicted.

Manslaughter and Vehicular Homicide – s. 316.193 (3), F.S.

Can the DMV suspend or revoke my license for DUI?

Yes. Upon being charged with a DUI, you may receive a permit to drive. This is good for thirty days. If you took a breathalyzer test and your Blood Alcohol Content (BAC) was over .08, your license will be suspended for thirty (30) days. You will have ten days within which to request either a formal hearing or an informal hearing to dispute your suspension. The statute addresses the requisite periods of suspension.

Driver License Revocation Periods for DUI – s. 322.271, F.S. and 322.28, F.S.

If I am charged or convicted of DUI while operating a commercial vehicle, how will it affect my ability to operate commercial vehicles in the future?

You may be disqualified from operating a commercial motor vehicle for a period of one year. In the case of a subsequent conviction, you may be permanently disqualified. Generally there are no provisions for a hardship license of this type.

Commercial Motor Vehicles (CMV) – Alcohol–Related Convictions/Disqualifications – s. 322.61, F.S.

What is a hardship license, and how do I get one?

A hardship license is a license that allows you to drive for purposes of employment and business only. This rule was designed to allow individuals who are convicted of a DUI, have a license suspension for having a BAC above .08 while operating a motor vehicle, or refusing a breathalyzer test when lawfully required to submit to one, drive to work when necessary. You can only obtain a hardship license after any mandatory periods of suspension have been served (ie. 90 days for test refusal) and you have complied with the below requirements.

Business Purposes Only/Employment Purposes Only Reinstatements – s. 322.271, F.S. and s. 322.28, F.S.

When is DUI school required?

DUI School Requirements – s. 316.193 F.S., s. 322.271, F.S., s. 322.291, F.S.

The traffic school for DUI infractions is required in all DUI cases where the person is convicted. It may be a good idea to enroll in DUI school even before you go to court to show the prosecuting attorney that you take the charges seriously and put yourself in a better position to bargain for a lesser punishment in the event of a conviction.

Are there penalties for refusing to submit to a chemical test for blood alcohol content? And, if I refuse to submit to the test can this be used against me in court?

The answer to both questions is yes. The provision is called "implied consent". By having a Florida Driver's License, you subject yourself to the requirement that, when a police officer has probable cause to arrest you for suspicion of DUI and you are placed under arrest, you have given implied consent to submit to a test to determine your Blood Alcohol Content (BAC). If you refuse to submit to a breathalyzer upon a lawful arrest you may be subject to additional periods of license suspension and even additional misdemeanor charges if it is not your first refusal. The penalties are listed in the statute.

Chemical or Physical Test Provisions (Implied Consent Law) – s. 316.1932, F.S., s. 316.1933, F.S., s. 316.1934, F.S., s. 316.1939, F.S.

  • Portable Alcohol Breath Testing Devices: Authorized by s. 322.2616, F.S., for persons under the age of 21. Reading is admissible as evidence in any administrative hearing conducted under s. 322.2616, F.S.

Can I get a withhold of adjudication on a DUI?

The short answer is no. However, in some cases, the Prosecutor may amend the DUI charge to a reckless driving charge that is alcohol related. It is possible to get a withhold of adjudication in a reckless driving case.

Adjudication and Sentencing – s. 316.656, F.S., s. 322.2615 F.S.

Judges are prohibited from deviating from the administrative suspension/revocation periods mandated by statute. The courts are prohibited from withholding adjudication in DUI cases; or from reducing a DUI charge if the defendant's blood alcohol was .15 or greater.

Are there different suspension laws for persons under the age of 21 for driving under the influence?

Yes. The rules are very different concerning under 21 DUI charges. An officer with probable cause that a person under the age of 21 is in actual physical control of a motor vehicle while under the influence of alcohol to any extent may take that person into custody and request that they submit to a test to determine their alcohol level. More information regarding this type of stop is available in the statute.

Administrative Suspension of Persons Under the Age of 21 for Driving With an Alcohol Level .02 or Above, s.322.2616, F.S.

How long are the suspension periods for DUI?

Administrative Suspension Law – s. 322.2615, F.S., s. 316.193, F.S., s. 316.1932, F.S.

  • First suspension for driving with BAC of .08 or more is 6 months.
  • Second or subsequent suspension for driving with a BAC of .08 or above is 1 year.
  • First suspension for refusal to submit to breath, urine or blood test is 1 year.
  • Second or subsequent suspension for refusal to submit to test of BAC is 18 months.
  • The suspension is effective immediately upon arrest. You will be issued a temporary driver's permit which is valid for ten days from your arrest. If you request a formal hearing to contest the suspension you will be granted a temporary permit which lasts longer than ten days.

Can I request a review of my license suspension for purposes of having it reinstated?

Yes. You have to request the hearing within ten days of your initial suspension which is the same date as your arrest for DUI most likely. You can request either an informal or formal administrative review as described below.

Review Hearings For Administrative Suspensions And Disqualifications

Under sections s. 322.2615 and s. 322.64, F.S., a driver may request the Department of Highway Safety and Motor Vehicles (DHSMV) to conduct a hearing for the purpose of sustaining, amending or invalidating administrative suspensions and disqualifications. The DHSMV's decision is not admissible for purposes of a trial for a violation of s. 316.193, F.S.,. In addition, any written statements made by Defendant for purposes of requesting a formal hearing may not be used at trial. If you are convicted at trial or acquitted it does not affect the decision of the DHSMV regarding your suspension.

What are the mandatory suspension periods prior to becoming eligible for a hardship license?

Business or Employment Reinstatement:

  1. Suspension for DUI with BAC .08 or above or refusal to submit to a blood alcohol test:
    1. Proof of enrollment in DUI traffic course.
    2. Unlawful BAC = 30 days without license prior to eligibility to receive hardship license.
    3. Refusal to submit to test = 90 days without license or permit prior to eligibility for hardship license.
    4. 2 or more refusals = not eligible for hardship reinstatement.
  2. Suspension for under 21 driving with BAC .02 or above
    1. Must complete Traffic Law and Substance Abuse Education course before eligible for hardship reinstatement.
    2. .05 BAC or higher = must complete DUI program and serve 30 days without license or permit before reinstatement

When are hardship licenses prohibited?

Hardship License Prohibited:

  1. 2nd or subsequent suspension for test refusal.
  2. Driver convicted of (DUI) section 316.193, F.S., two or more times.
  3. Persons suspended from driving commercial vehicles cannot get a hardship license to drive commercial vehicles.

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