DUI

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.

If your license has been suspended due to a DUI arrest, you have the right to request an eligibility review hearing within 10 days of your arrest. This hearing is your opportunity to challenge the suspension. An attorney can help you prepare for this hearing and potentially get your driving privileges reinstated sooner. Find the form here.

Depending on the circumstances, you may be arrested, issued a citation, or released. If arrested, you’ll be taken to jail for booking and may be eligible for release after a certain period or posting bail.

Remember: A DUI charge is serious and can have lasting consequences. Don’t hesitate to seek legal help as soon as possible. An attorney can be your advocate throughout the process, working to protect your rights and achieve the best possible outcome for your case.

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 changes. 

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.

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.) 

After you’re arrested, the officer should read you your Miranda rights, which include the right to remain silent and the right to an attorney. It’s crucial to understand these rights and exercise them if you choose. Miranda v. Arizona, 384 U.S. 436 (1966). 

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! Even if you believe you’re innocent, speaking to the police without an attorney can lead to misunderstandings, misinterpretations, or even self-incrimination.

Remember – It’s important to understand that your rights differ slightly before and after an arrest. While you can always remain silent, the right to have an attorney present during questioning is only guaranteed after you’ve been arrested.

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).

The Right to Refuse the FSEs

Unlike chemical tests (breath, blood, or urine), there is no implied consent for FSEs in Florida, meaning you are not automatically required to perform them. State v. Taylor, 648 So. 2d 701 (1995). 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. 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. It’s important to remember that FSEs are not foolproof. Many factors, such as fatigue, nervousness, medical conditions, or environmental factors, can affect performance.

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”). 

While the HGN is often presented as scientific evidence, its accuracy and reliability have been questioned. HGN’s probative value is outweighed by the potential for unfair prejudice, confusion of issues, and misleading the jury unless traditional scientific evidence predicates are met. State v. Meador, 674 So.2d 826  (Fla. 4th DCA 1996). It’s important to consult with an attorney who can challenge the validity of the HGN and its administration. 

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

The walk-and-turn test, like other FSEs, can be influenced by various factors unrelated to alcohol impairment, such as age, physical condition, or footwear. An experienced attorney can evaluate whether the test was administered properly and whether any external factors may have affected your performance.

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

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. 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. 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. 

Under Florida law, a warrant is generally required for a blood draw in DUI cases. However, there are exceptions for situations involving serious bodily injury or death caused by a DUI. According to Florida Statute Section 316.1933(1)(a), if an officer has probable cause to believe that a driver under the influence has caused serious bodily injury or death, the officer may obtain a blood sample without a warrant using reasonable force if necessary. This statute allows for warrantless blood draws in such circumstances, provided the blood draw is performed in a reasonable manner.

For instance, the case State v. Geiss, 70 So. 3d 642 (Fla. 5th DCA 2011) involved an appeal where the court discussed the constitutionality of warrantless blood draws under specific conditions, ultimately emphasizing that exigent circumstances must justify the lack of a warrant in such cases​. Furthermore, in Missouri v. McNeely, 569 U.S. 141 (2013), the U.S. Supreme Court ruled that the natural dissipation of blood alcohol alone does not constitute an exigency justifying a warrantless blood draw, reinforcing the need for case-by-case assessment of exigent circumstances.

These legal precedents ensure that while Florida law provides an exception for serious bodily injury or death cases, the application of this exception must align with constitutional protections against unreasonable searches.

Retrograde extrapolation is a scientific method used in DUI cases to estimate a driver’s blood alcohol concentration at the time of driving, based on a test taken later. This methodology determinates an individual’s blood alcohol level at an earlier time by multiplying the average rate at which alcohol is eliminated from the body by the amount of time between the accident and the blood test and adding that product to the individual’s known blood-alcohol level. See Vitiello v. State, 281 So. 3d 554, 558 (Fla. 5th DCA 2019). This is often necessary because there can be a time delay between driving and the administration of a blood test. 

Florida courts generally allow retrograde extrapolation evidence if it is presented by a qualified expert and the underlying scientific principles are sound. The accuracy of retrograde extrapolation can be challenged based on factors such as individual variations in alcohol metabolism, food consumption, and drinking patterns.

For example, State v. Barber, 360 So. 3d 1180 (Fla. 2d DCA 2023) underscores that while retrograde extrapolation involves certain assumptions, it remains a valid scientific method for estimating BAC at an earlier time. The court affirmed that challenges to the assumptions used in retrograde extrapolation should affect the credibility and weight of the testimony rather than its admissibility.

Important Considerations:

• The burden of proof is on the prosecution to establish the reliability of the retrograde extrapolation evidence.
• The defense can challenge the admissibility and weight of the evidence by presenting its own expert testimony or highlighting potential flaws in the methodology.

If you are facing a DUI charge where retrograde extrapolation is involved, it’s crucial to consult with an experienced attorney who can help you understand the implications and potential defenses in your case.

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.

To secure a DUI conviction, the State must prove the following elements beyond a reasonable doubt: 

1. The defendant was driving or in actual physical control of a vehicle; and 
2. The defendant was under the influence of alcoholic beverages or controlled substances to the extent that their normal faculties were impaired, or their blood-alcohol level or breath-alcohol level was 0.08 or higher.

While a BAC of 0.08 or higher is considered ‘per se’ evidence of impairment, the state can still pursue a DUI conviction even if your BAC is below the legal limit. In such cases, the prosecutor would rely on other evidence, such as field sobriety tests, observations of your behavior, and witness testimony, to prove that your normal faculties were impaired. Florida Statutes Section § 316.1934.

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 a 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!

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. Even with a warrant, the state still faces challenges in introducing urine test results. These can include issues with the chain of custody, sample contamination, and the interpretation of metabolite levels. Before that, 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. McGraw v. State, 245 So. 3d 760 (Fla. Dist. Ct. App. 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!

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. Custody doesn’t always mean being handcuffed or placed in a police car. It can also occur when a reasonable person would feel they are not free to leave or are significantly deprived of their freedom of action. This is often determined on a case-by-case basis, considering the totality of the circumstances. 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.

If you believe your Miranda rights were violated, your attorney can file a motion to suppress any statements you made during the interrogation. This would prevent those statements from being used against you 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.

Florida’s Accident Report Privilege 

Under Florida Statute § 316.066(4), statements made to law enforcement officers during the investigation of a car accident are privileged and cannot be used against the individual in any civil or criminal proceeding. The Accident Report Privilege applies to any statements made by involved parties (drivers, passengers, etc.) to law enforcement officers during the accident investigation. This includes verbal statements, written statements in the accident report, and any information provided for the purpose of completing the report. This privilege encourages drivers to be truthful without the fear of self-incrimination. However, this privilege has some limitations.

One grey area involves a suspected DUI car crash. The accident report privilege does not extend to DUI investigations. In such cases, law enforcement must transition from their role as accident investigators to DUI investigators. This transition is known as “changing of the hats.”

The “changing of the hats” doctrine requires officers to clearly distinguish between their accident investigation role and their DUI investigation role. They must read the Miranda warnings to the suspect before questioning them about DUI. 

In the event of a DUI investigation following an accident, if the officer does not correctly execute the “changing of the hats,” a defense attorney can move to suppress any illegally obtained statements, thereby protecting the rights of the accused. This was exemplified in Wetherington v. State, 1D13-1327 (Fla. 1st DCA, 2014), where the court held that statements obtained without the proper transition and Miranda warnings could not be used in a DUI prosecution.

By maintaining these distinctions, Florida law ensures that the rights of individuals are protected while also enabling law enforcement to effectively investigate and prosecute DUI offenses.

The purpose of the Accident Report Privilege is to:

• Promote truthfulness: Encourage individuals to provide truthful information to law enforcement without fear of it being used against them in court.
• Protect against self-incrimination: Align with the Fifth Amendment right against self-incrimination, ensuring that statements made to police during an accident investigation cannot be used to prosecute the individual.

Exceptions:

• The privilege does not prevent law enforcement officers from testifying about statements made during the investigation in a criminal trial, as long as the testimony doesn’t violate the defendant’s right against self-incrimination.
• The privilege does not apply to information gathered from independent sources, such as witness statements or physical evidence.

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.”

Whether someone is in ‘actual physical control’ of a vehicle is determined by looking at the totality of the circumstances. This means that courts consider all the relevant facts, including the location of the vehicle, the position of the person in the vehicle, whether the keys were in the ignition or nearby, and any statements made by the person. 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. 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.

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.

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. 

To prove the crime of DUI Manslaughter, the State must prove the following three elements beyond a reasonable doubt: 

• (Defendant) drove or was in actual physical control of a vehicle. 

• While driving or while in actual physical control of the vehicle, (defendant) 

1. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired. 
2. had a blood or breath alcohol level of 0.08 or higher. 
3. As a result, (defendant) caused or contributed to the cause of the death of (victim). 

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. Mitigating circumstances that a judge might consider include the driver’s lack of prior criminal history, voluntary participation in substance abuse treatment, cooperation with authorities, and genuine remorse for the victim’s death. Additionally, in DUI manslaughter cases, the court often takes into account victim impact statements from the deceased’s family members. These statements can significantly influence the judge’s sentencing decision.

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.

Under Florida law, a DUI that causes property damage is considered a first-degree misdemeanor (Fla. Stat. 316.193(3)(c)1). This is a more serious charge than a regular DUI, which is a second-degree misdemeanor.

Penalties for DUI with Property Damage:

• Jail Time: You could face up to one year in jail. (Fla. Stat. 775.082(4)(a))
• Fines: Fines typically range from $500 to $1,000, but can be higher depending on the circumstances. (Fla. Stat. 316.193(3)(c)1)
• License Suspension: Your driver’s license might be suspended for a minimum of 6 months and up to 1 year. (Fla. Stat. 322.28)
• Vehicle Impoundment: Your vehicle might be impounded or immobilized (Fla. Stat. 316.193(6)(b))
• Community Service: You might be required to complete community service.
• DUI School: You might be required to complete a DUI education course.

The elements necessary to prove the crime of Driving Under the Influence  Causing Property Damage:

1. Driving or in Actual Physical Control:The defendant was operating or had the ability to operate a vehicle.
2. Impairment:The defendant was either:

• Under the influence of alcohol, drugs, or a controlled substance to the extent that their normal faculties were impaired; or
• Had a blood-alcohol or breath-alcohol level of .08 or higher.

3. Causation:The defendant’s operation of the vehicle caused property damage.

The Standard Jury Instructions for Driving Under the Influence Causing [or Contributing to Causing) Property Damage or Injury can be found here.

Additional Considerations:

• If found guilty, the jury must also determine if the defendant’s BAC was .15 or higher, or if a minor was in the vehicle at the time.
• If the defendant’s BAC was .05 or less, there is a presumption they were not impaired, but this can be overcome with other evidence.
• The defense of inoperability (the vehicle was not working) can be used if applicable.

A DUI that results in serious bodily injury is a grave offense with severe consequences. If you’re facing this charge, it’s crucial to understand the potential penalties and seek immediate legal representation.

Legal Definition and Charges

Under Florida law, DUI causing serious bodily injury occurs when someone operates a vehicle under the influence of alcohol or drugs and causes significant harm to another person (Fla. Stat. 316.193(3)(c)2). This is a third-degree felony, a much more serious charge than a standard DUI or a DUI with property damage.

Penalties for DUI Causing Serious Bodily Injury:

• Prison Time: You could face up to 5 years in prison. (Fla. Stat. 775.082)
• Fines: Fines typically range from $1,000 to $5,000. (Fla. Stat. 316.193(3)(c)2)
• License Revocation: Your driver’s license will be revoked for a minimum of 3 years. (Fla. Stat. 322.28)
• Vehicle Impoundment: Your vehicle may be impounded or immobilized.
• Mandatory Evaluation: You may be required to undergo a psychological evaluation and complete DUI school and substance abuse programs.
• Restitution: You may be ordered to pay restitution to the victim to cover medical expenses, lost wages, and other damages.

Additional Penalties:

• Increased Insurance Rates: Even if you avoid jail time, your insurance rates will likely skyrocket.
• Employment Impact: A felony DUI conviction can make it difficult to find or keep a job.
• Permanent Criminal Record: The felony conviction will stay on your record permanently, affecting your future opportunities.

Defenses for DUI Causing Serious Bodily Injury

While the penalties are harsh, there may be potential defenses your attorney can explore, such as:

• Challenge to Evidence: An attorney can examine the evidence, including blood or breath tests, field sobriety tests, and witness statements, to identify weaknesses or inconsistencies.
• Accident Reconstruction: In some cases, an accident reconstruction expert can be employed to challenge the state’s version of events and potentially show that the DUI did not directly cause the injuries.
• Causation Issues: An attorney can argue that the injuries were not solely caused by the DUI or that there were intervening factors that contributed to the accident.

To prove the crime of Driving Under the Influence Causing Serious Bodily Injury, the State must prove the following three 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)

Give 2a or 2b or both as applicable.

1. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.
2. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].
3. As a result of operating the vehicle, (defendant) caused or contributed to causing serious bodily injury to (victim).

Give a. or b. or both if applicable. § 316.193(4), Fla. Stat.

If the jury finds the defendant guilty of Driving Under the Influence Causing [or Contributing to Causing] Serious Bodily Injury, the jury must also determine whether the State proved beyond a reasonable doubt that:

1. the defendant had a [blood] [breath]-alcohol level of 0.15 or higher while driving [or in actual physical control of] the vehicle.
2. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the crime.

The standard jury instructions for Driving Under the Influence Causing Serious Bodily Injury can be found here.

Importance of Legal Representation

DUI causing serious bodily injury is a complex and high-stakes legal matter. It is crucial to seek the guidance of a qualified DUI attorney who can provide expert advice, build a strong defense strategy, and negotiate with the prosecution to potentially reduce the charges or penalties.

If you get stopped for DUI in Florida and you don’t have your driver’s license with you, it can complicate the situation and lead to additional penalties. Here’s what you need to know:

According to Florida Statutes 322.15, you are required to carry your driver’s license while operating a vehicle. If you are stopped and do not have your license with you, you can receive a citation for failing to carry it. This is typically a non-criminal traffic infraction.

If you are suspected of DUI, you will still be subjected to standard DUI procedures, including field sobriety tests and possibly a breathalyzer test, even if you do not have your license with you. Not having your license does not exempt you from DUI laws and penalties.

Driving Without a License 

While driving is a daily necessity for many, it does come with the responsibility of maintaining a valid driver’s license. Florida Statute § 322.03 addresses the legal requirement to hold a valid driver’s license, and violations of this statute are treated as serious offenses with significant consequences. 

Florida Statute § 322.03 specifically mentions that all drivers must possess a valid license issued by the state to operate a motor vehicle on its highways. Specific rules apply to commercial drivers, requiring them to be Florida residents and surrender out-of-state licenses. Drivers with multiple DUI convictions must meet additional requirements for license issuance. Motorcycle operation necessitates an endorsement, except for autocycles. Driving with an expired license for over 6 months is a violation, but presenting a valid license in court can dismiss charges for other license-related offenses.

Legal Consequences

The legal consequences for driving without a valid license in Florida can vary based on the specifics of the offense and the individual’s prior record. Both criminal and administrative penalties can apply.

If you are apprehended for driving without a valid license you can face criminal charges, which may range from misdemeanors to felonies. The severity of the charges depends on factors such as prior offenses and the reason behind the license suspension or revocation. 

Also, your driving privileges may be suspended or revoked for varying periods, depending on the nature of the violation and past offenses. To regain driving privileges, you may need to meet specific requirements, such as paying fines, completing educational programs, and providing proof of insurance. In some cases, your vehicle may be impounded or immobilized, adding to the financial and practical burdens.

Beyond Legal Penalties

The ramifications of driving without a valid license extend beyond immediate legal consequences:

• Increased Insurance Rates: Insurance premiums may rise significantly, reflecting the increased risk associated with unlicensed driving.
• Legal and Financial Costs: Beyond fines and possible imprisonment, you may incur additional costs for legal representation and vehicle recovery.

Driving without a valid driver’s license in Florida is a serious offense that can lead to substantial legal and financial repercussions. Understanding Florida Statute § 322.03 and its implications is crucial for all drivers. Ensuring compliance with licensing requirements not only avoids legal issues but also contributes to safer roads. For those facing charges, seeking legal counsel is an essential step in protecting one’s rights and mitigating the impact of such violations.

What to Do if Stopped Without a License: 

1. Be cooperative:Remain calm and respectful towards the officer.
2. Provide identification:Offer other forms of identification, such as a passport or ID card.
3. Explain the situation:If your license is valid but you simply forgot it, explain that to the officer.
4. Contact an attorney:Consult with a DUI attorney as soon as possible. They can help you navigate the legal process and address any issues related to not having your license.

Remember:

Even if you don’t have your physical license with you, the officer can still check your driving status through their database.

The best course of action is to always carry your driver’s license when operating a vehicle. It can help avoid unnecessary complications and delays during a traffic stop.

Getting stopped for DUI with a suspended license in Florida is a serious offense with potentially severe consequences. You’ll face penalties for both the DUI and driving with a suspended license.

Penalties for DUI with a Suspended License in Florida

Florida Statute 322.34 details the penalties for driving with a suspended, revoked, canceled, or disqualified license. The severity of the penalty increases with subsequent offenses and can range from a misdemeanor to a felony, depending on the circumstances. If the license suspension is due to specific violations like DUI or causing serious injury, the penalties are enhanced. The statute also outlines the procedures for vehicle impoundment in certain situations, the requirement for notification of license suspension or revocation, and potential exceptions for specific violations.

Additional Consequences:

• Higher insurance rates: Your insurance rates will likely increase significantly.
• Employment issues: A DUI conviction can affect your employment prospects.
• Impact on personal life: A DUI conviction can strain relationships and damage your reputation.

Important Note: These are just potential penalties. The actual consequences you face will depend on several factors, including:

• Your prior DUI history: If this is your first DUI, the penalties will be less severe than if you have prior DUI convictions.
• The reason for your license suspension: If your license was suspended for a DUI-related offense, the penalties may be harsher.
• The circumstances of your arrest: If you caused an accident or injuries, you could face additional charges and penalties.

What to Do If You’re Stopped for DUI with a Suspended License:

1. Remain calm:Be polite and cooperative with the police officer.
2. Exercise your rights:You have the right to remain silent and the right to an attorney. It’s generally advisable to invoke these rights and avoid answering questions about your driving or drinking.
3. Contact an attorney:As soon as possible, consult with an experienced DUI attorney. An attorney can help you understand your rights, evaluate your options, and build a strong defense.

Remember, a DUI with a suspended license is a serious offense with potentially devastating consequences. Seeking legal counsel as soon as possible is crucial to protect your rights and interests.

A DUI police report in Florida is a crucial document that details the events leading to your arrest, the officer’s observations, and the results of any tests administered. It serves as a foundation for the prosecution’s case and is equally vital for your defense strategy.

How to Obtain Your DUI Police Report:

1. Identify the arresting agency:Determine the law enforcement agency that made the arrest (local police department, sheriff’s office, Florida Highway Patrol).
2. Submit a request:Contact the agency’s records department and request a copy of the report. You can usually do this in person, by mail, or online.
3. Pay any applicable fees:Some agencies charge a small fee for processing the request.
4. Wait for processing:Processing times can vary, but typically, you should receive the report within a few days to a few weeks.

Understanding Your DUI Police Report:

A typical DUI police report in Florida includes the following sections:

1. Officer Information:Name, badge number, and agency of the arresting officer(s).
2. Subject Information:Your personal details (name, address, license number).
3. Incident Details:Date, time, and location of the arrest, the reason for the initial stop (e.g., traffic violation), and a narrative describing the events leading to the arrest.
4. Observations:The officer’s observations of your appearance, behavior, and demeanor, including any signs of impairment (odor of alcohol, bloodshot eyes, slurred speech).
5. Field Sobriety Tests (FSTs):A detailed description of the FSTs administered and your performance on each test.
6. Chemical Tests:Results of any breath, blood, or urine tests taken, including the BAC level (if available).
7. Witness Statements:If applicable, statements from any witnesses present at the scene.
8. Officer’s Conclusion:The officer’s determination of probable cause for arrest is based on the evidence gathered.

When reviewing your DUI report, pay close attention to:

• Probable cause: Was there a valid reason for the initial stop and subsequent arrest?
• Officer observations: Are the officer’s observations objective and accurate?
• FST performance: Were the FSTs administered correctly, and were the instructions clear?
• Chemical test results: Are the results accurate and reliable? Were proper procedures followed?
• Any inconsistencies or errors: Look for any discrepancies in the report that could be beneficial to your defense.

Seek Legal Assistance:

A DUI charge in Florida has serious consequences. It’s strongly recommended that you consult with an experienced DUI attorney as soon as possible. An attorney can review your police report, identify potential weaknesses in the prosecution’s case, and develop a strong defense strategy on your behalf.

Remember, your DUI police report is a critical piece of evidence. Understanding its contents and seeking legal counsel are essential steps in protecting your rights and navigating the legal process.

A DUI conviction in Florida can have far-reaching consequences that extend well beyond the immediate penalties of fines, jail time, and license suspension. These long-term effects can significantly impact your personal, professional, and financial life.

Legal Consequences:

Criminal Record: A DUI conviction can negatively impact your ability to get a job, apply for housing, or obtain professional licenses.

Increased Penalties for Future Offenses: If you are convicted of another DUI in the future, the penalties will be significantly harsher due to your prior conviction.

Financial Consequences:

Higher Insurance Premiums: DUI convictions can lead to a dramatic increase in your car insurance rates, sometimes doubling or tripling them. This can last for years, even after your license is reinstated.

Other Financial Burdens: You may face additional costs for court fees, DUI school, substance abuse evaluation and treatment, and the installation of an ignition interlock device.

Professional and Personal Consequences: 

Employment: Many employers conduct background checks and may be hesitant to hire someone with a DUI conviction, especially for jobs that require driving or a clean record. A DUI can also lead to termination from your current job.

Education: Some educational institutions may consider a DUI conviction when evaluating applications for admission or scholarships.

Travel: A DUI conviction can make it difficult to travel to certain countries, as some may deny entry to individuals with criminal records.

In Florida, there is no difference between a DUI and DWI. Both acronyms refer to the same offense: driving under the influence of alcohol or drugs to the extent that your normal faculties are impaired.

While some states use both DUI (Driving Under the Influence) and DWI (Driving While Intoxicated/Impaired) to distinguish between levels of impairment or substances involved, Florida law only uses the term DUI.

Florida has a zero-tolerance policy for underage drinking and driving. This means that if you are under 21 and get stopped for DUI with any detectable amount of alcohol in your system (BAC of 0.02% or higher), you will face serious consequences.

Consequences for Underage DUI in Florida:

License Suspension: Your driver’s license will be automatically suspended for six months for a first offense. If your BAC is 0.05% or higher, the suspension continues until you complete a substance abuse course. For a second or subsequent offense, your license will be suspended for one year.

Fines: You may be fined up to $500 for a first offense and up to $1,000 for subsequent offenses.

Community Service: You may be required to perform community service hours.

DUI School: You will likely be required to attend DUI school.

Vehicle Impoundment: Your vehicle may be impounded.

Additional Considerations for Underage DUI:

Refusal to Submit to Testing: If you refuse to submit to a breathalyzer or blood test, your license will be suspended for one year for a first offense and 18 months for a second or subsequent offense.

BAC of 0.08% or Higher: If your BAC is 0.08% or higher, you will face the same penalties as an adult convicted of DUI, which can include jail time.

Impact on Future: A DUI conviction will stay on your record permanently and can have a significant impact on your future opportunities, including employment and education.

If you’re arrested for DUI as a visitor or tourist in Florida, you will face the same penalties as Florida residents. This includes fines, license suspension, potential jail time, and mandatory DUI school, depending on the specifics of your case.

Out-of-State License: Even if you have a driver’s license from another state, a DUI conviction in Florida will likely be reported to your home state, potentially resulting in further penalties there.

Administrative License Suspension: Florida has an “implied consent” law. This means that by driving in the state, you agree to submit to a chemical test if arrested for DUI. Refusing the test results in an automatic license suspension in Florida, which may also be reported to your home state.

Court Appearances: You will be required to attend all court hearings related to your DUI case. If you leave Florida before your case is resolved, a warrant may be issued for your arrest, and you could face additional charges.

Legal Representation: It’s crucial to hire a local DUI attorney in Florida who understands the laws and procedures to represent you. They can help navigate the legal system and potentially negotiate a plea deal or reduced sentence.

The Driver License Compact (DLC) and the Non-Resident Violator Compact (NRVC) are interstate agreements among U.S. states designed to promote traffic safety and cooperation between jurisdictions.

Driver License Compact (DLC): 

The DLC aims to ensure that each driver holds only one license, that out-of-state offenses are treated as in-state offenses, and that problem drivers are identified and dealt with effectively across state lines.

Under the DLC, member states share information about traffic violations and license suspensions with each other. If you commit a traffic violation in one state and hold a license from another member state, the information will be sent to your home state. Your home state can then choose to take action against your license, such as suspending it or adding points.

Non-Resident Violator Compact (NRVC)

The NRVC addresses the issue of drivers who receive traffic citations in a state other than their home state and fail to resolve the citation (e.g., by paying the fine or appearing in court).

If you receive a traffic ticket in a member state and don’t address it, that state will notify your home state. Your home state can then suspend your license until you resolve the outstanding citation in the other state.

Florida is a member of both the DLC and the NRVC. If you are convicted of DUI in Florida as a non-resident, the conviction will be reported to your home state through the DLC. Your home state may then impose additional penalties on your license.

While not all states are members of these compacts, it’s important to be aware of the laws in any state where you drive, especially if you frequently travel between states. These compacts play a significant role in ensuring accountability and promoting safe driving practices across the country.

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’s license suspension, DUI, DWLS with serious bodily injury or death, vehicular homicide, or participation in another Pre-Trial intervention program or probation

Eligibility for a diversion program is not automatic and is typically based on a number of factors, including the severity of the offense, the defendant’s criminal history, and the willingness of the prosecutor to offer the program. 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; 
• Withhold of adjudication;
• Twelve (12) month probation;
• Standard court costs and conditions of probation;
• Cost of Prosecution;
• Cost of Investigation;
• Ten day (10) vehicle immobilization; 
• No possession or consumption of alcohol, illegal drugs, or non-prescribed drugs during probation;
• Fine of $500;
• 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; 
• 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; and
• You would be eligible to get the reckless driving charge sealed.

Completing a diversion program can have significant benefits, including avoiding a DUI conviction on your record, potentially reducing or eliminating jail time and fines, and minimizing the impact on your driving privileges. However, failure to complete the program can result in facing the original DUI charges. It is crucial to consult with an attorney who specializes in DUI defense. They can assess your eligibility for diversion programs, negotiate with the prosecutor on your behalf, and guide you through the process to maximize your chances of successful completion.

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).

The administrative review hearing is an opportunity to challenge the suspension of your license. Your attorney can present evidence and arguments to show that the suspension was not justified or that there were mitigating circumstances. If the hearing officer rules in your favor, your license may be reinstated. 

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!

If you’ve been arrested for DUI in Florida, your clock is ticking. You only have 10 days from the date of your arrest to take action regarding your driving privileges. Florida Statutes Section 322.2615.

Why the Rush?

The DUI citation you receive acts as a temporary driving permit for only 10 days. After that, your license will be automatically suspended.

Your Options:

1. Request a Formal Review Hearing:This is your opportunity to challenge the suspension. An experienced DUI attorney can represent you at the hearing and potentially get your license reinstated.
2. Apply for a Business Purposes Only (BPO) License:If you need to drive for work, school, or other essential purposes, a BPO license may be an option. However, eligibility requirements apply. If you meet specific criteria (no prior DUIs, enrolled in DUI school) and need to drive for essential reasons (work, school, medical), you can apply for a BPO license, which restricts driving to these purposes (Fla. Stat. 322.271).

Don’t Delay – Seek Legal Help:

If you are eligible for a BPO license, you want to apply for it ASAP. The 10-day window is crucial. Contact a DUI attorney immediately to discuss the best course of action for your specific situation. They can help you understand your options, gather the necessary documentation, and ensure you meet all deadlines.

What is a BPO License?

A BPO license allows you to drive for specific purposes essential to your livelihood, such as:

• Commuting to and from work
• On-the-job driving
• Attending school or educational activities
• Medical appointments
• Religious services

Don’t Risk Losing Your License

The consequences of driving with a suspended license are severe. You could face additional criminal charges, fines, and even jail time. Don’t take that risk. Get legal help and take action within those 10 days.

If you’re required to attend a DUI school, the Traffic Safety Institute (TSI) at State College of Florida in Bradenton might be a good option for you. 

The school offers two DUI courses: Level 1 (12 hours, $336) for first-time offenders and Level 2 (21 hours, $496) for repeat offenders. Both courses include evaluations and possible referrals for treatment.

Registration can be done online at Scf.DuiAdmin.com or in person with required documentation, including photo ID, proof of residency, arrest information, and court documents (if applicable). Online pre-registration is available.

To sign up for DUI school, you need identification, proof of residency in DeSoto, Manatee, or Sarasota County, and various documents related to your DUI arrest and court case. Acceptable forms of proof of residency include deeds, leases, utility bills, and more. If your DUI occurred out of state or some time ago, alternative documentation may be required. Additionally, your Florida driver’s license number or out-of-state license number and driving record may be necessary.

Find out more here.