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Driving Under the Influence (DUI/DWI)

There is no rule or law against “drinking and driving,” although this is a commonly used phrase.  Any of us can go out for dinner, have a beer or a glass of wine (or maybe two, depending on your constitution), and drive home without necessarily running afoul of the law.

But society does not want motorists getting completely sloshed and creating a public hazard.  So the legislature passed Florida Statutes section 316.193, which outlaws “driving under the influence.”  Criminal statutes are comprised of elements, like ingredients to a recipe.  The first element of this crime is that a person was “driving or in actual physical control of a vehicle.”

“Actual Physical Control”

It is evident to us when a person is driving a vehicle.  If a motorist is driving down the road and the police (or another witness) see him actually operating a vehicle, as is often the case, the prosecution’s burden on this element will likely be satisfied.

But what other circumstances can give rise to a DUI arrest?  Being in “actual physical control” has been interpreted by the courts as being broader than simply driving.  For example, if the police find someone slumped over behind the wheel of their car, just outside the local bar in the parking lot, passed out with the keys in his hand, the police have often said that the person is in actual physical control of the vehicle, warranting an arrest for DUI.  On the other hand, if the person is laid out in the back seat, with the keys locked in the trunk, he’s going to have a good defense that he was not in actual physical control and was trying to responsibly sleep it off after regrettably having one too many (which is the sort of conduct that we, as society, would greatly prefer to him having driven while impaired).  A less common defense (but a viable one) is that the vehicle was not reasonably operable.  In other words, if the vehicle is not mechanically able to operate, it is not truly an instrumentality of danger to others, and a DUI prosecution would not be appropriate.

What Constitutes “a Vehicle?”

As incredible as this may sound, you can get arrested for DUI for being in or on pretty much anything that can transport you down the road.  This question went to court in one case, and the court basically said that since the legislature did not restrict the language to “motor vehicle” then the legislature must have intended to outlaw DUI while piloting basically anything.  This particular case then ruled that the state was allowed to prosecute someone for DUI on a bicycle!  The police have arrested people for DUI on a horse in Florida.  The current state of the law is that a “vehicle” can be almost anything.

Proving the Accused was “Under the Influence” (i.e. “Impairment”)

In addition to having to prove that a person was driving (or at least in actual physical control of) a vehicle, the real meat of a DUI arrest and prosecution is that the person was truly under the influence.  The police and prosecutors do this one of two ways.

One way is through testing a person’s breath or blood to determine alcohol content.  If the testing shows that the person’s breath-alcohol content was .08 or more grams of alcohol per 100 milliliters of blood, then the court is supposed to give the jurors an instruction that they should presume the person was impaired.  There is a similar protocol for blood evidence.  But in the absence of any testing (for example, if the person refuses to give a breath sample), then the police and prosecutors have to do it the old-fashioned way, which is to simply prove that the person was under the influence of alcohol, chemicals, or drugs “to the extent that the person’s normal faculties were impaired.”  This is obviously much easier to defend, because the “normal faculties” of one person may vary greatly from the normal faculties of another.  A linebacker might be able to drink three or four beers and be completely fine.  A 95-pound gymnast might be absolutely smashed after consuming the same amount of alcohol.  It’s an individual determination.  Which gives the accused more and better defenses in many cases.

Should you Give a Breath Sample?  Should you Refuse?

This is the age-old question posed to defense attorneys at dinner parties around the nation.  There’s no simple answer.  Refusing to participate in a police officer’s attempts to get you to do roadside field-sobriety exercises is one thing.  But if you refuse to give a breath sample when asked, generally speaking, the Florida DMV has the right to suspend your drivers’ license (and they absolutely will) and the prosecution gets a jury instruction basically insinuating that you refused the breath test because you knew you were impaired (this is called a “consciousness of guilt” instruction).  And if you refuse to give a breath sample on a second occasion, this can be a crime in-and-of itself.

On the other hand, if you agree to provide a breath sample and it ends up being over .08, then the prosecution gets to tell the jury they are basically legally obligated to convict you based on that fact alone (even if you blew .08 on the nose and you’re 250 pounds of pure muscle).  So it’s basically a game-time decision, there’s no easy answer, and both courses of action have potential consequences.

What Happens After You Get Arrested for DUI in Florida?

The typical course of events in a case like this is that the police make contact with a driver for some reason, be it a traffic stop or a DUI checkpoint or whatever the case may be.  The police, if they begin to suspect DUI, will typically ask the driver basic questions, all the while observing the driver and noting the driver’s appearance, speech patterns, and smells.  Almost every DUI police report ever written includes the phrase that the police officer observed the driver to have “watery/glassy eyes, slurred speech, and an odor of alcohol emitting from the driver’s mouth.”

The police officer will typically ask or order the driver out of the vehicle and will request the driver perform field-sobriety exercises, such as “the walk-and-turn,” “the one-legged-stand,” and various other performance tricks such as whether you can recite the alphabet backwards.  Many of the field-sobriety exercises are things that you couldn’t do if you were stone-cold sober.  Once the police officer believes that they have enough evidence to make an arrest, they typically do so.

The typical procedure is that the police officer makes the decision in the field to arrest someone, and that person is then taken back to the local jail, where the breath-testing machine is usually located.  There are mobile breath-testing units used by some agencies, but the most common thing is for the breath-testing unit to be at the local jail.  The police are not supposed to confront the accused with the request to provide a breath sample until after he or she is arrested for DUI.  At this point, the police typically read the accused what’s called the “implied consent” warnings, which basically caution the accused that if they refuse to provide a breath sample, this alone is grounds for the DMV to suspend the accused’s driver’s license.  Then the accused either gives a breath sample or doesn’t, and then regardless of what the results of the breath test are, the accused is booked into the jail and then typically may try to post bond or obtain counsel.

The police officer will typically seize the accused’s driver’s license during the course of the arrest, and will give the accused the citation (ticket) that was issued in connection with the DUI, and that citation itself functions as a substitute license for 10 days.  In the meantime, the matter goes into the agency’s and the DMV’s computer systems, and the accused has that 10-day period to decide what they want to do about the fact that the DMV is going to suspend his or her driving privileges.  By the end to the 10-day period, the accused has to choose what they want to do with the DMV.  The typical options are (a) do nothing (and have your license automatically suspended); (b) request a hardship license during the course of the DUI court case; or (c) invoke the right to a hearing with the DMV.  This last course of action can either result in the suspension being invalidated, or if the hearing is conducted and the driver loses, then the suspension takes effect and is typically of a longer and harsher duration than if the person asked for a hardship license at the outset.  There can also be strategic advantages to demanding a hearing at this time, but without getting too deep into the weeds on all this, it should suffice to say that an experienced DUI attorney can give good advice on the different courses of action.

Common Defenses to DUI in Florida

There are typically three places where experienced attorneys look in order to give the accused the best defense in a DUI case.  The stop, the video, and the testing.

The Fourth Amendment to the United States Constitution protects all of us against unreasonable searches and seizures at the hands of the government.  A traffic stop constitutes a form of “seizure.”  Therefore the police need to have a reasonable, lawful basis for having made contact with the accused, all of which must hold up in court in the light of day.  Some traffic violations, such as weaving within a single lane and following too closely (just to name a few) are the subject of an incredible amount of officer discretion, and are often reasonably questioned.  Without getting too deep into the weeds here, it will suffice to say that it is not uncommon for bad stops to happen, and a seasoned lawyer should know one when he or she sees one.  The corpus delicti rule sometimes provides avenues for the defense in these sorts of cases, as well.

Most law enforcement vehicles these days have some sort of dash-cam or video recording equipment.  Specialized DUI officers typically have video recording equipment and body-mikes.  Law enforcement goes to pretty great lengths to capture as much of their interaction with the accused as possible.  Prosecutors call this “building a case.”  Others call it “the police trying to make a movie.”  In any event, if the accused is standing on his own two feet, rock-solid and looking like he’s about to be awarded a medal, the video is good evidence supporting the notion that he was within his faculties.  If the accused is falling all over himself and is obviously trashed, the prosecution will consider this as powerful evidence in the state’s favor. This video is usually where the administration of the roadside sobriety exercises is also captured, which prosecutors and defense attorneys agree is crucial evidence in any DUI case.  Seasoned attorneys look for the good and the bad in the video evidence, when it exists.

Lastly, if there is scientific or forensic evidence, it is subject to being challenged by the defense.  Too many people have been wrongfully convicted because of what later turns out to be junk-science, so the defense should be allowed to examine and challenge the scientific evidence in any case.  The breath-alcohol-measurement machine that is used in Florida is typically referred to as an Intoxilyzer device, and it is made by a private-sector company in another state.  The inner-workings of the machine have been deemed the trade-secrets of this company, so the accused is denied the ability to engage in meaningful discovery about why the machines give the results that they give.  However, the Florida Department of Law Enforcement (FDLE) has set forth rules about how the tests themselves are supposed to be administered, and a seasoned attorney knows what to look for in terms of whether the testing was administered correctly.

Another sometimes-overlooked defense is referred to as the “accident report privilege.”  This often comes into play when there is an alleged DUI with property damage.  At the scene of an accident, the motorists involved typically have an obligation to stay at the scene, and in most circumstances have a legal duty to share what occurred with responding law enforcement officers.  Therefore it would be a violation of our Fifth Amendment right (to be free from self-incrimination) if the officers at the crash scene could compel your cooperation and then hold your statements against you in a later prosecution.  So the legislature enacted Florida Statutes section 316.066, which is commonly called the “accident report privilege.”  This statute basically means that, before anything that the accused says to the officers can be held against him or her, the officer has to “change hats,” which essentially means they have to clearly advise the motorist that they are transitioning from a crash investigation to a criminal investigation and Miranda warnings should be issued.  Failure to do this can render the accused’s statements inadmissible, which can knock out substantial parts of the state’s case.  A seasoned attorney will know to evaluate whether the accident report privilege has been honored or not.

Sentences and Penalties for DUI in Florida

DUI is a misdemeanor in most circumstances in Florida.  Misdemeanors are crimes punishable by only up to a year in the county jail, and are the “less serious” category of crimes (as compared to felonies).  But for a number of reasons, the legislature has taken discretion out of the judges’ hands and has imposed a pretty rigid sentencing structure over DUI’s in Florida, which is basically a sliding scale of mandatory jail time, fines, and other sanctions, depending on whether it’s the accused’s first, second, third, or fourth (or subsequent) offense, and depending on the recency of any prior offense.

First (1st) DUI in Florida

First (1st) DUI in Florida
Imprisonment: Up to 180 days maximum.  No minimum.
Probation: Up to 1 year (total period of probation and incarceration may
not exceed one year)
Fine: $500 – $1000
License suspension: 6 months – 1 year
DUI School
Community service: at least 50 hours
Impoundment or immobilization: 10 days, as a condition of probation
(must not occur concurrently with imprisonment), unless the offender’s
family has no other means of private or public transportation)
Ignition Interlock Device (IID): If court ordered

Enhanced penalties if BAC ≥ 0.15, or if passenger is under 18:
Fine: $1000 – $2000
Imprisonment: Up to 9 months
IID: Mandatory for at least 6 continuous months

Second (2nd) DUI in Florida

Second (2nd) DUI in Florida
Imprisonment: Up to 270 days.
Probation: 6 months to 1 year
Fine: $1000 – $2000
License suspension: 6 months – 1 year
DUI School
IID: Mandatory for at least 1 year

Enhancement for “2nd within 5 years”
Imprisonment: Mandatory minimum of 10 days (at least 48 hours must be
consecutive)
License suspension: 5 years
Impoundment or immobilization: 30 days (absent showing of family need)

Enhanced penalties if BAC ≥ 0.15, or if passenger is under 18:
Fine: $2000 – $4000
Imprisonment: Up to 12 months
IID: Mandatory for at least 2 years

Third (3rd) DUI in Florida

Third (3rd) DUI in Florida

Longer than 10 Years from Prior Conviction (“Third Outside of Ten”)
Imprisonment: Up to 1 year (no minimum mandatory).
Fine: $2000 – $5000
DUI School
IID: Mandatory for at least 2 years

Enhancement for “3rd within 10 years”
Elevated to Felony Offense (F3)
Imprisonment: Mandatory minimum of 30 days (at least 48 hours must be
consecutive), and up to 5 years in prison
License suspension: 10 years minimum
DUI School
Impoundment or immobilization: 90 days (absent showing of family need)

Enhanced penalties if BAC ≥ 0.15, or if passenger is under 18:
Fine: $4000 minimum

Fourth (4th) or Subsequent DUI in Florida

Elevated to Felony Offense (F3), punishable by up to 5 yrs prison (no minimum mandatory)
Fine: $2000 – $5000
License suspension: permanent, no hardship option

As you can see, according to Florida Department of Highway Safety & Motor Vehicles’ data, there are typically between approximately 44,000 to 55,000 DUI arrests in Florida every year. So if this has happened to you, you’re not alone. Call The Weisman Law Firm for a free, confidential consultation.

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