Driving Under the Influence
Florida Statues 316.193 (1) (a) makes it a crime if you are driving or in actual physical control of a vehicle while you are under the influence of alcohol or other substances to the extent that your normal faculties are impaired. Under this section the prosecutor would have to prove your abilities are less than they would be if you had not ingested a substance.
The prosecutor will try to show your faculties are impaired by presenting evidence such as field sobriety exercises like the walk and turn exercise or a one leg stand. The State may also use an officer’s general observations such as slurred speech, fumbling with your driver license, slow mental processing or poor balance.
Florida Statues 316.193 (1) (b) and (c) provides that if you are driving or in actual physical control of a vehicle and have a blood alcohol level of .08 or over or a breath alcohol level of .08 or over then you are guilty of DUI. Notice that under this section the prosecutor does not have to prove you are impaired. The State only has to show the test results.
Typically to prove an unlawful breath alcohol level an officer will have a DUI suspect blow into an Intoxilizer machine. The machine then gives a print out of the person’s blood alcohol level. The results have been successfully challenged many times. Operator errors and malfunctioning machines are common.
Sometimes the State will have evidence of a suspect’s blood alcohol level. Typically a blood sample is collected after an accident with injury to a person. The blood sample is collected by medical personal and analyzed at a laboratory. The results of blood tests have been successfully challenged. Improper storage of the samples or expired samples can give false results. Also samples can be retested by a lab chosen by the defense which sometimes yields a different result.
Below we have summarized the penalties for the offense of DUI. You can expect that the overall cost if convicted on your first DUI will be over $5000 including fines, auto insurance increases, legal costs and other expenses. It is imperative that you contact our firm immediately after being arrested for DUI. There are steps that need to be taken by our firm as soon as possible after your arrest which will substantially increases your odds of not being convicted of Driving Under the Influence (DUI).
First conviction of DUI
Florida Statute 316.193 provides if you are convicted of a first time DUI the fine that could be assessed ranges from $500-$2000. You will be required to do at least 50 hours of community service and probation up to one year. Exposure to jail is 180 days however, it is unlikely that you would be sentenced to that amount of jail time on a first DUI conviction. Your license will be revoked for at least 180 days up to 365 days. You may be eligible for a driving permit.
You will be required to attend and complete a DUI intervention class/program of 12 hours along with any counseling required by the Florida Safety Council evaluators. Remember this is for a first time DUI conviction. Penalties go up substantially with each conviction.
Under 21 Driving Under the Influence
Under Florida Statute 322.2616 there is zero tolerance for drivers under the age of 21 if they consume alcohol. If law-enforcement stops a driver who is under 21 who has a blood alcohol level of .02 or higher their driver license will be suspended for six months. It takes less than one drink to reach .02 for most people. If you are under the age of 21, do not drive after consuming any alcohol. If a person who is under 21 refuses to take a breath test, a one-year suspension of driving privileges is imposed.
At Mario, Gunde, Peters, Rhoden and Kelley, our DUI team thoroughly and exhaustively investigates your case. We go out to the scene of your arrest, we take pictures and interview witnesses. We ask detailed questions of you with the intent to dissect your case early on so that we have the advantage when representing you both at the formal review hearing (if you choose) and in the court of law.
One of the issues that we have recently litigated has been in the forefront of DUI defense. In the past, anonymous tips alone without corroboration did not provide the requisite reasonable suspicion required for police to conduct a traffic stop. Illinois v. Gates, 462 U.S. 213 (1983). However, under recent case law, an anonymous tipster’s uncorroborated report of reckless driving can provide the reasonable suspicion to conduct a stop. The United States Supreme Court in Navarette v. California, 134 S. Ct. 1683 (2014) found that under the totality of circumstances approach if there are indications of reliability in the anonymous 911 caller’s report, which are sufficient to provide officers with reasonable suspicion that the driver of the suspect vehicle is impaired, without corroboration, then law enforcement can legally stop the vehicle and conduct an investigation into the suspected criminal activity.
As a result, as long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called into 911, will support a traffic stop. This is a far cry from previous case law. Our Fourth Amendment rights are being eroded every day.
Here at Mario Gunde Peters, Rhoden and Kelley, we fight to preserve the rights of our clients, and we are dedicated to your defense. Our attorneys, staff and investigators will make every effort to get the best possible outcome for your case. Our attorneys have over 100 years of combined experience and we meet regularly to discuss our cases. Having savvy, experienced litigators discuss your case can be invaluable. You and your case will be handled with the utmost professionalism by our attorneys and staff members. Call us and you will see we care about you and what you are going through.
DRIVING UNDER THE INFLUENCE PENALTIES
FINE SCHEDULE
F.S. 316.193(2)(a)-(b)
| BAC under .15 | BAC .15 or higher or minor in vehicle |
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| Minimum | Maximum | Minimum | Maximum | |
| 1st offense | $500 | $1,000* | $1,000 | $2,000 |
| 2nd offense (regardless of date) | 1,000 | 2,000 | 2,000 | 4,000 |
| 3rd offense outside 10 years from second offense | 2,000 | 5,000 | 2,000* | 5,000 |
| 4th offense | 2,000 | 5,000 | 2,000 | 5,000 |
*The statute fails to specify that any fine is mandatory on a 3rd within 10 where BAC is under .15, however, it does specify that the fine on a 3rd outside of 10 is a minimum of $1,000. All other fines above are specifically mandated within the statute.
DUI with Damage/Injury is a 1st degree misdemeanor carrying a max $1,000 fine on a first offense.
IMPRISONMENT
F.S. 316.193(2)(a)2, 4(b), (6)(j)
| BAC under .15 | BAC .15 or higher | |||
| Minimum | Maximum | Minimum | Minimum | |
| 1st offense | 0 days | 6 months* | 0 days | 9 months* |
| 2nd offense outside 5 years | 0 days | 9 months | 0 days | 12 months |
| 2nd offense within 5 years | 10 days** | 9 months | 10 days** | 12 months |
| 3rd offense outside 10 years | Same as 1st or 2nd offense as applicable and maximum is 12 months | |||
| 3rd offense within 10 years | 30 days (with at least 48 hours consecutive) | |||
| 4th offense or more | None additional required by Chapter 316. Felony charges may apply. | |||
*DUI with Damage/Injury is a 1st degree misdemeanor, which carries a maximum of 1 year in jail for a first offense.
**At least 48 hours of the mandatory jail time must be consecutive and MUST be actual incarceration (not farm time or house arrest).
DRIVER LICENSE REVOCATION
F.S. 322.27 and 322.28
| Minimum | Maximum | |
| 1st offense | 180 days* | 1 year |
| 2nd offense outside 5 years | 180 days | 1 year |
| 2nd offense within 5 years | 5 years | permanent/lifetime |
| 3rd offense outside 10 years | Same as 1st or 2nd offense | As it applies |
| 3rd offense within 10 years | 10 years** | |
| 4th offense or more | permanent/lifetime revocation |
*Can immediately apply for hardship (for business purposes only). If qualifications are met, will need to be enrolled through Florida Safety Council in DUI Level 1.
**May be eligible for hardship reinstatement after 2 years.
Administrative hearing and criminal case are 2 separate actions.
IMMOBILIZATION OF VEHICLE
F.S. 316.193 (6)
| Minimum | Maximum | |
| 1st offense | 10 days | 1 year |
| 2nd offense outside 5 years | 10 days | 1 year |
| 2nd offense within 5 years | 30 days | 1 year |
| 3rd offense outside 10 years | Same as 1st or 2nd offense | As it applies |
| 3rd offense within 10 years | 90 days | |
| 4th offense or more | None additional required |
Can be waived under §316.193(6), if only vehicle and hardship.
IGNITION INTERLOCK DEVICE
F.S. 322.2715 and 316.1937
Interlock is a breath testing device that must be blown into in order to start the vehicle. It will prohibit the vehicle from starting if the person’s BAC registers over .025.
| BAC under .15 | BAC .15 or higher | |||
| Minimum | Maximum | Minimum | Maximum | |
| 1st offense | 0 days | If ordered, must be for a min. of 6 mos. | 6 mos. | Court’s discretion |
| 2nd offense (regardless of date) | 1 year | Court’s discretion | 2 years | Court’s discretion |
| 3rd offense (regardless of date) | 2 years | Court’s discretion | 2 years | Court’s discretion |
FELONY DUI
The following DUI’s qualify for felony upgrade:
- 3rd offense with at least one prior conviction within the past 10 years; 316.193(2)(b)1
- 4th offense, regardless of dates prior convictions; 316.193(2)(b)3
- Any DUI where defendant’s driving causes or contributes to causing a crash which results in death or serious bodily injury to a person involved in the crash other than the defendant; 316.193(3)
ADJUDICATION AND SENTENCING
F.S. 316.656 AND 322.2615
All offenders MUST be adjudicated guilty.
PROBATION AND DUI SCHOOL
F.S. 316.193, 322.271, 322.291, 316.193(5)(6)
- DUI School and some period of probation are mandatory in ALL DUI cases, including felony.
- The court shall place all offenders convicted of violation of this section on monthly reporting probation and shall require completion of a substance abuse course conducted by a DUI program licensed by the department, which must include a psychosocial evaluation of the offender.
- The statute does not specify how much probation must be ordered, only that SOME period of “monthly reporting probation” must be ordered.
