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DUI

I Was Stopped for a DUI! What Now?

If you have been stopped for a DUI, remain calm! Be polite and hand over your license, insurance, and registration when asked by the officer. You are required by the law to have and provide these documents, so cooperation at this stage is the best practice. Usually, the officer will begin recording when he or she initiates the stop. This recording could (and usually will) be used as evidence against you, so your behavior after the stop is very important! Almost all officers will have a recording device on their person called a body cam. Others will have a recording device in their vehicles and will position the vehicle in such a way to record full body activity should you be asked to step out of the vehicle. The officer may ask you to step out of the vehicle to conduct a DUI investigation. The DUI investigation is a critical stage, and you should reach out to a licensed criminal defense attorney as soon as possible. However, the police are under no obligation to allow your request to speak to an attorney prior to deciding whether to submit to roadside tests, so it is important to understand the process and to know your rights!!!

There is always a possibility the officer may perform a DUI investigation and determine you are not under the influence of alcohol. However, this is normally not the case. Most DUI officers have specialized training in detecting and proving DUIs in court. In Florida, DUI officers are part of a special task force. If a DUI is suspected, the officer that stopped you will often call one of these specialized officers to come administer the tests. They are highly skilled and well-educated on DUI matters. If you have been asked to step out of the car and undergo a DUI investigation, it is most likely because they have already determined you are under the influence of alcohol or drugs. In fact, the officer must have a “reasonable suspicion” of impairment before asking you to submit to these tests. State v. Taylor, 648 So. 2d 701, 703 (Fla. 1995). While a “reasonable suspicion” is a rather low bar in the legal world, it generally requires more than just the smell of alcohol on your car or on your breath.

What if I’m Being Questioned About Drinking and Driving?

The officer may ask you common questions such as, “where are you coming from,” “how much have you had to drink,” and “do you know why I pulled you over”. You do not need to answer these questions! (However, you must respond with your legal name if asked to provide it.) You have the right to remain silent and not incriminate yourself. You should politely and CLEARLY tell the officer that you would like to assert your right to remain silent. Berghuis v. Thompkins, 560 U.S. 370 (2010). Remember, when the officer is asking you these questions they likely suspect that you may be under the influence of drugs or alcohol, and it is often the best practice to not say anything that may be seen as an admission.

If you have already been arrested for DUI and you are being interrogated by the police, you should again CLEARLY assert your right to remain silent, and CLEARLY request to speak to an attorney (saying something such as “maybe I should speak to an attorney” may not be enough to unambiguously invoke your rights.) At this point the officer must cease questioning. If you do not clearly request to speak to an attorney, the officer may resume questioning at a later time, so you should make it clear that you wish to exercise both your right to remain silent and your right to an attorney. Michigan v. Moseley, 423 U.S. 96 (1975). If you have been arrested, the police should have probable cause to believe you committed a crime. Their job now is to investigate and obtain evidence of this crime. Therefore, even if you have done nothing wrong, it is usually a bad idea to try to tell them “your side of the story.” Anything you say can (and likely will) be used against you!

What if I’m Asked to Do Field Sobriety Exercises?

The officer may ask you to do a series of tests called field sobriety exercises (“FSEs”). In Florida, they are called field sobriety exercises because the courts have ruled that the words “test,” “pass,” and “fail” are too prejudicial. State v. Meador, 674 So.2d 826 (Fla. 4th DCA 1996).

It is important to know that you have the right to refuse to take the FSEs. The officer does not need to inform you of this right, and most likely will not. In fact, they can use language to suggest you need to perform them if he or she has probable cause to believe you are impaired. State v. Milian, 18 Fla. L. Weekly Supp. 414 (Fla. Broward Cty. Ct. 12/9/10). If you do refuse to take the FSEs, the officer is required to inform you of the possible consequences of your refusal. If you refuse to take the FSEs, the officer may still arrest you for a DUI. However, if the exercises “show” impairment, you will most likely be arrested for DUI anyway (with more evidence that can that can be used against you in court), and THESE EXERCISES ARE DIFFICULT EVEN IF YOU ARE NOT DRUNK! Remember, if you are being asked to submit to a DUI investigation, they have likely already determined that you are impaired. In fact, if the officer does not have a reasonable suspicion that you are under the influence of drugs or alcohol, they cannot even ask you to preform FSEs.

There are three standard FSEs used by most officers: “the horizontal gaze nystagmus test," "the one-leg-stand test," and "the walk-and-turn test." Check out the latest Standardized Field Sobriety Guidelines here. If you’ve seen a cop show or movie before you’ve likely seen these tests administered.

How do the FSEs work?

In the Horizontal Gaze Nystagmus Test (“HGN”) the officer will hold a stimulus (usually a pen made for conducting these tests) approximately 12-15 inches from your nose, and instruct you to follow the stimulus with your eyeballs only. The officer will “pass” the stimulus from the nose to the farthest position on the right and back to the nose. He will copy this movement on the left.

Prior to conducting the test, the officer will check to see if the pupil size is equal, if the eyes move together or one lags behind (known as equal tracking), and if the eyes exhibit a jerk-like movement (called a nystagmus) in the resting position. The reason for this is if any of these abnormalities are present, it could indicate a medical condition that could mess up the results of the test. If the officer fails to check for these conditions prior to the test, they may be unable to use these results in court.

While the officer is conducting the HGN, he or she looks for three main clues to show impairment:

  • A smooth and even ability to follow the stimulus with your eyeballs called smooth pursuit
  • A distinct nystagmus at the maximum deviation (as far as your eyeball goes on each side); and
  • The angle of the stimulus at which the nystagmus begins (this is correlated with a BAC- e.g., if the nystagmus begins when the stimulus is held at a 35-degree angle, this would be correlated with a BAC of approximately .15)
  • The HGN is considered a scientific test. In order for the results of the HGN to be admitted as evidence in court, the officer conducting the HGN test must be qualified as an expert. Many officers (even the specialized DUI officers) do not have the necessary certifications to be qualified as an expert for purposes of the HGN test! The officer must also adhere to standardized procedures for this test set by the National Highway Traffic Safety Administration (“NHTSA”). Check out the latest Standardized Field Sobriety Guidelines here.

    For the Walk and Turn test, you will be asked to walk a straight line (sometimes there will be a physical line, but not always), by bringing the heel of one foot to the toe of the other, keeping your arms by your side. You will alternate steps like this nine times, counting each step out loud. At the conclusion of the ninth step, you will turn on one foot to the opposite direction, and take nine more heel-toe steps back. Before you do the exercise, the officer must demonstrate the exercise to you, and ask you if you understood. The officer must also ask a series of questions regarding your health and abilities to ensure that there is no reason that the test may be invalid (e.g., knee injuries, diabetes, mental disabilities, old age). The walk and turn must also be administered under the right conditions. The area for the test should be well-lit and the surface should be flat and as smooth as possible. During the test, the officer will be looking for and recording these clues:

  • Failure to keep balance
  • Beginning too soon or too late
  • Stopping while walking
  • Failure to connect heel to toe
  • Stepping off the line
  • Using your arms to keep balanced
  • Making an improper turn
  • Taking a wrong number of steps or incorrect count

  • During the One-Leg Stand, the officer will instruct you to raise one leg approximately six-inches above the ground, keeping your foot parallel and your hands at your side. You will be instructed to look at your foot and count one-one thousand, two-one thousand, three-one thousand, etc. until you are told to stop. The officer will be looking for these four clues of impairment:

  • Swaying
  • Using your arms to keep balanced
  • Hopping
  • Putting your foot down

  • What if I’m Asked to Take a Breath/ Blood/ or Urine Test?

    If you are asked to take a chemical sobriety test, you will not be entitled to speak to an attorney before making your decisions, so it is important to be informed!

    If an officer requests that you submit to a breath test, he MUST inform you of Florida’s implied consent law. 316.1932(1)(a)1.a. This law essentially states then when you obtain a driver’s license and therefore accept the privilege to drive, you have in provided your implied advance consent to a test of your breath, blood or urine once reasonable cause arises that you are DUI. According to statute, implied consent is only applicable after a lawful arrest. Therefore, unless you have been arrested for DUI, you are NOT REQUIRED to submit to a breath test. However, the officer may, with your consent administer a breath test prior to arrest. This pre-arrest breath test can be used to determine probable cause for the arrest, but cannot be used as evidence in court.

    If you have been lawfully arrested for DUI and are asked to submit to a breath test, refusing to take the breath test will carry the following penalties under Florida’s implied consent law:

  • First Refusal: 1 year driver’s license suspension;
  • Second Refusal: 18-month driver’s license suspension. A second refusal is also a first-degree misdemeanor, punishable by up to 1 year in jail or probation and a $1,000 fine.
  • In addition to these penalties, the refusal could be used as evidence against you in court. The officer is required to tell you about these penalties before administering the test. What they are not required to tell you, is that if you do choose to blow, and you blow above a .08 (or a .02 in the case of a minor) your license will be automatically be suspended for six months. Additionally, while these penalties are quite harsh, the penalties for DUI can be considerably harsher. When deciding whether or not to submit to a breath or urine test, it is important to note that the prosecutor can prove DUI by showing that your BAC was .08 or higher.

    If you do make the decision to submit to a breathalyzer test, the officer conducting the test (the breath test operator) should be certified in using the breathalyzer instrument. In Florida, this instrument will be the Intoxilyzer 8000. There is a VERY specific procedure that the breath test operator must follow when administering the test. Check out the full breath test procedure here. The operator will first do a 20-minute observation period to ensure there is nothing that would interfere with the results of the test (e.g., vomiting, burping, etc.). The operator should keep the subject in their direct field of view throughout the entire 20-minute observation period. After the observation period, the breath test operator will run a diagnostic check on the instrument, followed by a control test. You will be then asked to blow into the instrument a couple of times. The breath test operator will follow with another control test and diagnostic check. If the breath results are sufficient (within a .02 g/210L difference of each other, such as a result of .12 and .14), a printout of the results will automatically be generated and will display a BAC. The prosecutor will attempt to enter this printout into evidence to prove DUI. If the results are not sufficient, the machine may require you to blow again. You can see the full procedure requirements here. If a sufficient result cannot be obtained, this will be considered a refusal despite your cooperation!

    The breath test is the most common and most highly publicized chemical test, but the officer may also request that you submit to a urine or blood test. Urine, and in some instances blood tests (blood tests are only required when administering a breath or urine test is impractical or impossible, such as when the driver is unconscious or hospitalized) are covered by the same implied consent laws as breath. However, some recent cases have suggested that the officer must have a warrant for a urinalysis. State v. Riddle, 26 Fla. L. Weekly Supp. 148a (2018).

    How Does the State Prove DUI?

    Before discussing DUI defenses, it is good to know how the State can prove its case. In a criminal case the burden is on the State to prove every significant factor (called an element) of the crime beyond and to the exclusion of any reasonable doubt. So, what is a reasonable doubt? It is the highest burden in the criminal system. A “reasonable doubt” is not merely a possible or speculative doubt. Just because something is possible, it does not mean that it is reasonable. For example, many prosecutors use this metaphor to describe reasonable doubt to the jury: Say you live in a cold area, where it snows often. One winter morning, you wake up and notice that your driveway is covered in snow. What happened? You’d probably say it snowed. It is possible that your neighbor came by in the middle of the night with a snow blower and covered your property in fake snow, but is this reasonable? Depends on your neighbor, but probably not.

    In Florida, the prosecutor has two possible routes they can go to meet their burden in a DUI case. The prosecutor can prove EITHER that your normal faculties (e.g., walking, talking, thinking, reacting) were impaired by drugs or alcohol while you were in control of a vehicle OR that your blood alcohol content was above a .08. DUI Standard Jury Instructions.

    The prosecutor can try to show that your normal faculties were impaired in a number of ways. Each DUI case is different, and therefore each case will have different types of evidence the officer may point to in order to show impairment. Some of the major factors the prosecutor may use to show impairment in the average DUI case are:

  • Driving Pattern
  • Performance on Field Sobriety Exercises
  • Demeanor/ Behavior
  • Refusal to Submit to Chemical or Field Sobriety Tests
  • Chemical Test Results
  • Your statements/admissions
  • Hospital Records

  • In proving any crime, the evidence against you can be physical (e.g., videos, chemical test results, alcohol cups or bottles found in the vehicle or at the scene, bar or club arm bands, etc.) or testimonial (the sworn statements given by witnesses in court). All physical and testimonial evidence has to meet certain levels of reliability. In order to show physical evidence such as chemical test results to the jury, the prosecutor has to follow a very specific set of procedures to ensure that reliability. In the case of breath and urine tests, this is large area of dispute! Your defense attorney should be highly familiar with the requirements to properly enter the results of a chemical test into evidence, and hold the State to this burden!

    Why Was I Stopped for a DUI?

    The officer must have a reasonable suspicion that you have committed a crime to conduct a stop. Reasonable suspicion is a rather low bar in the legal world (BUT a bar nonetheless!) Reasonable suspicion is more than just a hunch, it must be articulable and based upon objective facts. Reasonable suspicion depends on the total circumstances and the level of reliability of the information. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

    When making a DUI stop one important factor that officers look at for articulable reasonable suspicion is your “driving pattern”. Here are some examples of common DUI driving patterns that may lead to a stop:

  • Difficulty maintaining one lane
  • Driving too fast or too slow
  • Inappropriate breaking
  • Driving off the roadway
  • Not using headlights in the dark
  • Following too closely
  • Running red lights or stop signs
  • Improper or unsafe turns or lane change

  • In addition, "a legitimate concern for the safety of the motoring public” can be cause enough to warrant an investigatory stop. Department of Highway Safety Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla.2d DCA 1992); see also State v. Davidson, 744 So.2d 1180 (Fla.2d DCA 1999) (quoting the language from DeShong).

    However, the officer can stop you for reasons not related to a DUI. Any traffic violation could be a reason for the officer to pull you over (e.g., expired tag, illegal window tinting, missing break lights or head lights, failure to signal, etc.). If the officer stops you for a non-DUI reason, he or she must have reasonable suspicion to conduct a DUI investigation. Here are some examples of common factors contributing to reasonable suspicion of DUI:

  • Red, watery, glassy, blood-shot eyes
  • Slurred speech
  • Odor of Alcohol
  • Sluggish movement
  • Slow responsiveness or repetition of questions or commands
  • Fumbling with your license or registration

  • If the officer does not have the requisite reasonable suspicion to conduct a traffic stop or DUI investigation, evidence arising from the illegal stop or investigation will not be admissible in court, and a licensed criminal defense attorney could help get this illegally obtained evidence thrown out.

    They Didn’t Let Me Speak to My Attorney/ Read Me My Rights!

    If you have ever seen a cop show or movie, you have likely watched a scene that goes something like this: The officer puts the arrestee in handcuffs. Immediately thereafter, as the officer is walking the arrestee out to the police car, he or she dramatically proclaims; “you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” These are the Miranda Warnings. However, they may not always be so obvious.

    Miranda rights generally apply to custodial interrogations. An interrogation is custodial if you are under formal arrest, or when a reasonable person, under the circumstances, would feel that he or she is deprived of their freedom in a significant way. In most DUI investigations, officers are generally not required to read you the Miranda Warnings during initial roadside DUI stops and investigations. In fact, they are specifically trained not to! However, outside of giving your name, license, insurance, and registration, you do not need to answer these incriminating roadside questions. After providing your name and documentation, you should clearly state that you wish to invoke your right to remain silent. If your intention to exercise this right is ambiguous, the officer may continue to question you, and any admissions you make could be admissible in court.

    Even if you have been arrested for DUI, the officer still may not read you your rights prior to interrogation. Again, this does not mean that you can’t expressly assert them. After your arrest, you should again clearly state that you would like to exercise your right to remain silent, and that you would like to speak to a criminal defense attorney.

    So, when does the officer have to read you the Miranda Warnings? If you are in the custody of the police and they wish to question you about the crime for which you have been arrested, they must at this point read you the Miranda Warnings! If they do not, any statements made as a result of this failure would not be admissible in court.

    One grey area involves a suspected DUI car crash. Under Florida’s Accident Report Privilege, statements made to an officer in the investigation of a car accident cannot be used against you. In the case of a DUI car crash, the officer who appears to be investigating the crash may actually be the officer investigating your DUI! If this is the case, the officer will have to correctly do what is known as a “changing of the hats” (explaining that they will now be investigating a DUI) and read you Miranda Warnings before questioning you about a DUI. Wetherington v. State, 1D13-1327 (Fla. 1st DCA Apr. 16, 2014). If the officer does not properly adhere to these requirements, your defense attorney can ensure that any illegally obtained statements are suppressed.

    I Wasn’t Actually Driving!

    In order to prove DUI, the prosecutor must prove that you were driving OR in actual physical control of a vehicle while your normal faculties were impaired. If you were stopped on the road by the officer, this element is pretty straightforward. However, if you’ve been arrested for DUI and this was not the case, this element gets a bit muddier. Here are some common examples of the types of cases where actual physical control of a vehicle becomes a controversial element:

  • The vehicle was in a crash
  • The vehicle had mechanical issues
  • The vehicle was parked
  • The driver was asleep

  • According Florida’s standardized jury instructions on DUI, “actual physical control 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.”

    That means the state does not have to prove you were actually driving the vehicle at the time you were alleged to be DUI, but the state MUST prove that you had the ability to operate the vehicle. For example, John Doe drives to the bar. He gets into his car, but the battery is dead. He calls AAA and sits in his car waiting for AAA to come. At this point John Doe is stopped for DUI. Here the state would not be able to prove that John Doe was in actual physical control of the vehicle because he was unable to operate the car at the time. It does not matter if John Doe intended to drive the car the after AAA arrived, he has not yet committed a DUI. However, say John Doe got in his car and the battery was working, but he decides he’s tired and would prefer to take a nap, so he climbs into the passenger seat and goes to sleep with his car keys in his pocket. Here, the state could argue that John Doe was in actual physical control of the vehicle because he had the capability to operate the vehicle.

    As you can see, the question of whether a person was in actual physical control of a vehicle in a DUI case is very specific on the facts of each case. Heath v. Dep’t of Highway Safety & Motor Vehicles, 7 Fla. L. Weekly Supp. 304a (Fla. 9th Cir. Ct. 2006). In actual physical control cases, there is a lot of grey area as to the question of whether or not the accused individual had the capability to operate a vehicle. The courts have held the word capability means a “practical ability.” State v. Fitzgerald, 63 So. 3d 75, 77 (Fla. 2d DCA 2011). However, the question of what constitutes a practical ability remains hotly debated. Your attorney can analyze the facts of your case and assist with any defense regarding actual physical control of a vehicle.

    They Made Me Take a Breath/Urine/Blood Test!

    The State can prove DUI by proving that your BAC was over the legal limit of .08. Fla. Stat. Section 316.193. However, the credibility and admissibility of the current chemical sobriety tests has been strongly contested. If you have taken a breath, blood, or urine test, you should contact a licensed criminal attorney who can assist you with getting this evidence suppressed.

    The Breath Test

    In Florida, the specific breath test instrument used to measure BAC is the Intoxilyzer 8000. This instrument works by comparing infrared wavelengths absorbed by the breath sample against those normally absorbed by alcohol. The instrument contains a small lamp, which generates an infrared beam. This beam then passes through the breath sample and is compared to way it would pass through alcohol. Alcohol absorbs infrared wavelengths at a range of 3.39 to 3.48 microns. Therefore, if the breath sample absorbs wavelengths at a similar range, it would indicate the presence of alcohol in the system, and the amount of infrared light absorption at that particular wavelength can show just how much.

    However, like all machines, the Intoxilyzer 8000 is fallible, and your criminal defense attorney should assist with the possible suppression of these potentially inaccurate results. One large problem is that the Intoxilyzer 8000 doesn’t look only for the type of alcohol used for consumption. Other molecules with a similar chemical component to ethyl alcohol can be picked up. Your breath may have higher levels of these similar chemical components from diseases such as diabetes, or from inhalation of fumes from gas, glue, paint, or some chemical cleaners.

    Another major concern with the Intoxilyzer 8000 is the amount of air that is blown into the machine known as the breath test volume. The machine only requires 1.1 liters of air. The reason for this number is to ensure that the breath measured comes from deep within your lungs rather than just surface “mouth” air. However, if too much air is blown into the machine, it could create a higher BAC. If there is less than the 1.1 liters of air, the machine should provide a warning that the volume of air is not met. However, there is no specific mechanism over the required 1.1 liters that ensures the breath volume is correct. Officers are trained to encourage you to “blow and keep blowing” in order to meet the required breath test volume, but this could also lead to inaccurate results.

    Additionally, the Intoxilyzer 8000 has extremely detailed and precise maintenance requirements. You can see the full requirements here. The instruments must be inspected and certified yearly my multiple different parties in addition to regular maintenance and periodic calibration. The officer administering the breath test must be trained and obtain up to date certification in order to legally be permitted to operate the Intoxilyzer. If any one of these many specific procedures is not complied with, the evidence may not be admissible in court.

    The Urine Test

    Urine tests are not as commonly used now due to the new requirement that a warrant must be obtained prior to collecting a urine sample. State v. Riddle, 26 Fla. L. Weekly Supp. 148a (2018). Even before to the warrant requirement, the State had many issues with the urinalysis because of its questionable reliability. If you have taken a urine test, your attorney should ensure that unreliable urine evidence is contested.

    Once a urine sample is collected, it will be run through a screening procedure in a laboratory and analyzed by a chemist or toxicologist to determine the presence of drugs or alcohol. This is generally the person who will be called to testify. One hurdle to presenting urine evidence is that in order to bring in the results of the urine test, the witness will need to be qualified as an expert. The witness will need to not only have the requisite credentials and background, but also have had proper interaction with the sample and the readings. Further, your urine does not measure for the target substance itself. Rather, it measures for a broken-down byproduct of the substance found in waste, called a metabolite. When analyzing the presence of these metabolites in your system, the witness will be able to tell with certainty if the metabolite of a certain drug is in your urine, but NOT how much of the drug was in your system at the time you were allegedly DUI OR when the drug was ingested.

    The Blood Test

    While blood tests for drugs or alcohol are the most reliable of the chemical tests, they are not as commonly used in Florida because the officer is generally required to have a warrant or your consent for a blood draw to be performed. A blood test is protected by the Fourth Amendment’s search- and-seizure requirements, and you have the right to refuse a warrantless blood test. There may be an exception for exigent circumstances other chemical testing is impossible or impractical, such as when the driver is unconscious or has been hospitalized. State v. Mitchell, 914 N.W.2d 151, 154 (Wis. 2018). If an officer has improperly required a blood test, your defense attorney can work to get the illegally obtained evidence thrown out.

    Even though blood tests are more reliable, they are not without faults. Blood must be handled and preserved properly to ensure accurate results. Additionally, blood is usually taken hours after you have been driving. Alcohol takes some time to fully absorb into your system. As the alcohol continues to absorb, the level of alcohol found in your blood can rise. If you drank a lot of alcohol just before getting in your vehicle, the BAC found in the blood test may be higher than it was at the time you were driving!

    DUI Sentences

    If you have been convicted of DUI, there are certain penalties that the Judge is required to impose. These penalties are “mandatory minimums”. The Judge may impose a greater sentence up to the maximum amount that is allowed by statute, but they must at least impose the mandatory minimums. Fla. Stat. Section 316.193.

    The penalties for a DUI are dependent on a number of factors including:

  • Prior DUIs (and length of time since the prior conviction)
  • BAC level
  • Whether the driver had a child passenger at the time of arrest,
  • The age of the driver
  • Any resulting injuries

  • First Offense

    For a first-time DUI, there is no mandatory minimum jail sentence. The maximum possible jail sentence for a first offense DUI depends on the facts of the case. For a standard DUI, six months in jail is the maximum, however, where the BAC was .15% or more, then nine months becomes the maximum. If the motorist was involved in an accident involving property damage or personal injury, the defendant is subject to up to one year in jail. However, if there was an accident involving “serious bodily injury,” the defendant becomes subject to up to five years in prison. It should be noted that the sentencing judge has the discretion to substitute mandatory jail sentences for time served in a residential alcoholism or drug abuse treatment program toward the term imprisonment on a day-for-day basis.

    Fla. Stat. Section 316.193 requires the sentencing judge to place all DUI first-time offenders on probation. Typically, the time on probation and any time in jail can’t exceed one year. As a condition of probation, the judge must order all first-time DUI offenders to perform at least 50 hours of community service. A first offense carries a minimum driver’s license suspension of six months and a maximum of one year.

    A first offense with bodily injury carries a minimum three-year revocation. Drivers are also subject to having their car impounded or immobilized for ten days. Those ten days can’t overlap with any time the driver spends in jail for the DUI conviction. Judges are not required to order ignition interlock devices for first offense DUIs, however, where the BAC is .08% or greater, judges have discretion to order an ignition interlock device for six months or more. The device is mandatory for six months where the driver had a BAC of .15% or more or had a passenger who was under the age of 18. Additionally, a first time DUI offender will be subject to a fine of up to $1,000.00. In the case of a BAC over .15% the maximum fine increases to $2,000.00

    Second Offense

    For a second conviction, imprisonment shall not be for more than nine months. If the BAC was .15% or higher, or if there was a minor in the vehicle, imprisonment shall not be more than 12 months. If a second conviction was within five years of a prior conviction, Florida law requires a mandatory jail sentence of at least ten days, with the proviso that it may be substituted for time in a residential treatment program. A driver convicted of a second DUI offense will also face a fine of up to $4,000.

    If the second DUI arrest is more than five years after the first DUI conviction, and if you either refused a blood or breath test or else registered a BAC below .15% and had no car crash, then you face a maximum of nine months in jail. There is no minimum jail time. If, however, you had a BAC of .15% or higher or were driving with a minor in the vehicle, the maximum time is up to 12 months in jail. A second offense within five years from a prior conviction also carries with it a minimum driver’s license revocation of five years, however, one may be eligible for a hardship license after one year. If the second arrest is more than five years after the first DUI conviction, a suspension will be for a minimum of six months.

    An ignition interlock is required for a minimum of one year for a BAC below .15% and a minimum of two years at .15% or higher. All of the defendant’s vehicles will also be subjected to impoundment or immobilization for 30 days for a second DUI conviction within five years, unless the family of someone convicted of a DUI offense has no other transportation. For a second or subsequent DUI conviction, there is no minimum amount of community service required and it is left to the judge’s discretion.

    Third Offense

    If a third conviction is within 10 years of a prior conviction, there is a mandatory jail sentence of at least 30 days. If the third conviction is more than 10 years from a prior conviction, there is no mandatory jail sentence and imprisonment may not be for more than 12 months.

    If the third offense is within 10 years of the second conviction, there is a minimum 10 year license revocation. One may be eligible for a hardship license after two years. A third conviction within 10 years also requires the impoundment or immobilization of the driver’s vehicle(s) for 90 days, unless the family of the defendant has no other transportation. There is also a minimum of two years using an ignition interlock system.

    Any person convicted of a third DUI within 10 years of a prior conviction or a fourth or subsequent DUI commits a third degree felony and is subject to up to five years in prison. A third offense is also subject to a fine of up to $5,000.00.

    Fourth or Subsequent Offense

    A fourth DUI in Florida is a serious offense and can have some considerable punishments. If you have been charged with a fourth DUI you should contact a knowledgeable criminal defense attorney as soon as possible to assist you with these charges. A fourth DUI could be charged as a third-degree felony, and is a level six (6) offense under Florida’s Criminal Punishment Code (the uniform manual Judges use to guide their sentencing decisions for criminal cases in Florida), which is punishable by up to five years in jail. While the guidelines for a third-degree felony allow for a maximum of five years in jail, if you have been convicted of a DUI within the previous ten (10) years, the fourth DUI offense will come with a mandatory jail sentence of at least 30 days. Fla Stat. 316.193(6)(c). For example, if John Doe was convicted of a third DUI in 2012 and, was then convicted of a fourth DUI in 2021, the court must sentence John Doe to at least 30 days in jail, but could order up to five (5) years in prison.

    If you are convicted of a fourth DUI offense, you will be fined at least $2,000.00, and for enhanced DUI’s, the fine will be at least $4,000.00 (with a maximum fine of $5,000.00). With a conviction for a fourth offense also comes a mandatory permanent revocation of your driver’s license. After five (5) years you may be eligible for a hardship reinstatement of your license, and your licensed criminal defense attorney can also assist you in this process. In addition to the above penalties, the court will also order general DUI conditions such as DUI school, victim impact panels, substance abuse treatment, psychological evaluations, vehicle impound and an ignition interlock device. Fla. State. 316.193.

    Additionally, the state may try to classify a fourth or subsequent DUI as a “habitual felony offender.” Under this classification, the court may order enhanced penalties, including a maximum of ten (10) years in jail. Your experienced criminal defense attorney can work with you to help avoid these extreme punishments.

    DUI Manslaughter

    If you have been charged with a DUI that resulted in death, you could be facing a serious punishment and should immediately consult a knowledgeable criminal attorney to assist you with your defense. Due to the serious nature and media presence surrounding a DUI manslaughter charge, Florida prosecutors tend to aggressively pursue these cases, and any plea deal that may be offered will generally not be light. In a DUI manslaughter case, the intent of the driver is not relevant to the State’s case. The prosecutor only needs to prove that as result of the DUI, an individual is deceased. Fla. Standard DUI Manslaughter Jury Instructions.

    DUI manslaughter is a second-degree felony punishable by up to 15 years in prison, 15 years’ probation, or a combination of the same. Additionally, you may face penalties of up to $10,000 in fines, and will face a mandatory permanent driver’s license revocation. After five (5) years you may be eligible for a hardship reinstatement of your license, and your licensed criminal defense attorney can also assist you in this process. Under Florida’s Criminal Punishment Code, DUI manslaughter is a level 8 (with the most serious offenses classified as a level 10), which has a mandatory minimum sentence of 124.5 months in prison.

    However, the judge may make a downward departure (meaning they can go below this minimum 124.5 months required by the criminal punishment code) if the judge finds that there are mitigating circumstances (factors surrounding the crime that give rise to a consideration for a lesser punishment) for the crime. Under Florida Statute 316.193(3)(c)(3), there is a statutory requirement of at least four (4) years imprisonment for DUI Manslaughter. Therefore, even with a downward departure, the shortest prison sentence a judge may impose for DUI manslaughter is four (4) years.

    The average sentence for DUI manslaughter is ten (10) years, but each case is distinct and punishment can range from four (4) to 15 years. As there is such a large range in possible sentences for this offense, having a knowledgeable criminal defense attorney working on your case can make a critical difference. Factors such as the strength of the evidence, circumstances surrounding the death, remorse of the defendant and demeanor at the scene can all contribute to the final sentence.

    Alternative DUI Sentences

    County Diversion Program

    If this is your first time being charged with a misdemeanor DUI, you may be eligible for a county diversion program! Most Florida State Attorney’s Offices have implemented some type of program which provides first-time offenders with no significant criminal history the opportunity to plea to a less severe legal sentence upon successful completion of the program.

    In the 12th Judicial Circuit serving Desoto, Sarasota, and Manatee Counties, this particular program is called Driver Enhanced Treatment Education Rehabilitation (“DETER”). In order to be eligible for the DETER program you need to meet certain criterion:

  • You must be charged with a misdemeanor DUI
  • There must be no aggravating factors (e.g., crash, minor in vehicle, BAC over .2, egregious driving pattern)
  • This must be your first DUI. You must also have no prior alcohol-related reckless driving, DWLS with serious bodily injury or death, vehicular homicide, DUI prior diversion program, or any sentence on a felony charge within the past 5 years from the date of the DUI.
  • You must have no pending Florida driver license suspension, DUI, DWLS with serious bodily injury or death, vehicular homicide, or participation in another Pre-Trial intervention program or probation.
  • The prosecutor will look at all of the evidence in your case (including the police report, any videos, photos, breath test results, or witness statements) and determine whether the DETER program is appropriate, and if so, what level of the program you qualify for. This decision is discretionary and different for every case AND every prosecutor. You should discuss your case with a licensed criminal defense attorney who can assist with getting you into this program. There are three levels:

  • Level 1: Your BAC is below .15
  • Level 2: Your BAC is above .15 but below .2 or you refused to submit to a chemical test
  • Level 3: Your DUI is drug-related

  • If you choose to participate in the program, you will be asked to waive your right to a speedy trial, and a date will be set 60 days out from the date of your acceptance. During the sixty days, you must complete the following conditions:

  • Remain crime free and stay compliant with any conditions of bond or supervised release;
  • Complete DUI school and begin recommended treatment;
  • Complete MADD Online Victim Impact Program;

  • AND

  • For Level 1 and Level 2- Provide proof of installation of ignition interlock alcohol monitoring device or, if they do not own a vehicle, proof of a continuous alcohol monitoring device (PAM OR SCRAM); complete two (2) work offender days for Level 1 offenses, and four (4) work offender days for Level 2 offenses
  • For Level 3- Not possess or consume alcohol, illegal drugs, or non- prescribed drugs, submit to weekly urinalysis; complete four (4) work offender days

  • On the set date if you have completed the pre-plea conditions, you may enter an agreed plea to a lesser charge (reckless driving) with DUI conditions. Although the terms of your probation will be the same as a first time DUI charge, there are two significant differences between the DETER plea and a first time DUI charge:

  • Your record will not reflect a DUI charge if you go through the DETER program. It will instead show the lesser charge of reckless driving; and
  • You will receive a withhold of adjudication. This means you have not be formally convicted of a crime. Although the record will still reflect that a withhold of adjudication was entered, you can legally state that you do NOT have a criminal conviction.
  • What is a BPO Hardship License and How Do I Get One?

    If your license has been suspended either administratively for a first refusal to submit to a chemical test or for a first-time DUI, you may be eligible for a hardship license, but you will want to act quickly! As soon as possible after you have been arrested for a DUI, you should reach out to a licensed criminal defense attorney, who will help you through every step in the process.

    A Business Purposes Only (BPO) license allows for 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.” Florida Statute 322.271(1)(c)(1). While the statute lists some examples of what constitutes a purpose “necessary to maintain a livelihood,” it is not an exhaustive list, and there is some grey area as to exactly what you can use your BPO license for.

    When you are arrested for a DUI or refuse to submit to a lawfully requested chemical test, you may have your license taken. At that time, the officer will give you a DUI citation, which will allow you to continue to drive for ten days. After this ten-day period, your license will automatically be suspended for six months to a year if no action is taken. This suspension is administrative and performed by the Department of Highway Safety and Motor Vehicles (“DHSMV”). Only the DHSMV, not the officer, Judge (although the Judge may enter a formal “non-objection” to a hardship license on your record), or prosecutor (although the prosecutor may recommend no objection to a hardship) can grant a hardship license.

    Before the ten-day period is up you choose to challenge the suspension through a process called administrative review hearing. Although this is NOT a criminal proceeding you do have the right to have an attorney present to argue on your behalf at the hearing. While the hearing is pending you will be issued a temporary BPO license, which will be in effect until the hearing takes place. At the hearing, a hearing officer will review the police report and all relevant evidence presented. You may also call the arresting officer as a witness and cross-examine him or her at the hearing (this will also provide you a chance to hear the officer’s testimony prior to trial).

    However, the law also provides another opportunity to obtain a BPO license without applying for a DHSMV hearing. Florida Statute 322.271(2)(b). In order to do this, you will have to waive your right to an administrative hearing to contest the suspension. You still must apply for the waiver within ten days as you would a hearing. This will have the effect of admitting to the suspension. The suspension will remain on your record even if you are late found not guilty of DUI. In order to be automatically eligible for this waiver option you must fall into a specific category (no prior DUIs or refusals and actively enrolled in DUI school). Florida Statute 322.271(2)(7). A licensed criminal defense attorney can help you decide on the best method for you!


    Mr. Eisenberg is one of only a handful of criminal defense attorneys in all of Sarasota County who has been recognized by the Florida Bar as a Board Certified Criminal Trial Expert.



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