Florida DUI Guide

The Complete Guide to Understanding a DUI in Tampa, Florida

Index

  • Introduction
  • Chapter 1 – What exactly is a DUI and DWI
  • Chapter 2 – Who gets DUIs?
  • 2a – Options to Drinking and Driving.
  • Chapter 3 – What happens when you get a DUI?
  • Chapter 4 – Can you refuse to take a blood alcohol content (BAC) test?
  • 4a – What are the penalties for refusing to take a BAC test?
  • Chapter 5 – When are you under arrest?
  • Chapter 6 – What are the circumstances of an arrest?
  • 6a – personal observation
  • 6b – probable cause
  • 6c – traffic stop led to a DUI arrest
  • 6d – arrest warrant
  • Chapter 7 – What is a warrant?
  • Chapter 8 – Can you challenge an arrest?
  • Chapter 9 – What happens after an arrest for DUI?
  • Chapter 10- Conditions for release of persons arrested for DUI
  • Chapter 11- Other charges associated with DUI
  • Chapter 12 – Can you plead to a lesser offense than DUI?
  • Chapter 13 – Drunk driving penalties in Florida
  • Chapter 14 – Criminal penalties and fines
  • Chapter 15 – What if the driver is under 21?
  • Chapter 16 – Ignition Interlocking Device
  • Chapter 17 – Fighting a DUI
  • 17a – DUI defenses
  • Chapter 18
  • Finding the right attorney
  • Conclusion

Introduction

In Florida, you are considered to be over the legal limit of intoxication if you have a blood, urine or breath alcohol level of .08 or above. Driving While Intoxicated (DWI) or Driving Under the Influence (DUI) along with related impaired driving offenses can cause serious consequences in your life. This is why it is imperative that you understand Florida’s DUI laws, your rights and what your legal options are if faced with one of these charges.

Chapter 1

What exactly is a DUI and DWI

Florida has set the legal limit for intoxication and being found guilty of DUI at a blood alcohol concentration (BAC) of .08. It was 0.1 at one time, but was lowered. There are some states that still have a limit of 0.1, but most have lowered it to .08. So what is the difference between a DUI and a DWI? There is really no difference. It is just that some states prefer the term Driving Under the Influence or DUI, while others use Driving While Intoxicated or DWI. There are even a few states that use the term Operating Under the Influence or (OUI). There are times when it is referred to as “drunk driving.” This is a misnomer, because you do not have to be drunk to get a DUI. You can be arrested and convicted of a DUI simply for the fact that your BAC was .08 or higher, even if you didn’t feel like you were drunk. For general terms, it’s usually referred to as DUI to keep things simple.

DUI is a criminal offense. You can be accused of driving under the influence of an intoxicating substance if you are impaired to the point that it reduces your ability to manage a vehicle either physically or mentally. But you do not necessarily need to be drunk or feel impaired to be accused of DUI. You only need to be found to have a blood alcohol content of .08 or greater. It doesn’t matter if you don’t feel drunk or impaired.

Chapter 2

Who gets DUIs

Drinking and driving is unfortunately a common occurrence. If you drink and drive, there is a good possibility that you will end up in an accident or be arrested. Last year in Florida alone, there were 33,625 DUI convictions. But over 55,000 DUI tickets were issued.

2 a. – There are several options to driving after you have been out drinking.

· Have a designated driver take everyone home.

· Take a cab or a bus home.

· Call a friend or relative to pick you up.

· Walk home, if it safe for you to do so.

· Depending on how much you have to drink, waiting for an hour or two before driving may be long enough for you to be under the legal limit.

No one wants to have the inconvenience of leaving their car behind when going home. Think of these things before you go out to have drinks. Figure out how you and your car will get home safely without you getting in trouble. A cab costs a lot less that a DUI conviction.

Chapter 3

What happens when you get a DUI?

When a police officer stops you for a traffic violation and the officer suspects that you may be under the influence, the officer can detain you and test you to see if you are legally under the influence. Police can conduct one or more of several different tests that will determine if a motorist is impaired. The police officer will generally begin by giving the suspect a field sobriety test. The officer will ask the driver to execute a series of tasks which would be difficult for a person who is intoxicated to carry out. If the officer then has reason to believe that it is necessary, he or she will perform a test that measures an individual’s blood-alcohol concentration (BAC). Generally, a breathalyzer is the most common way to go about this.

There are other tests that can be done to get a suspect’s BAC. The five bodily materials that can be used for drug and alcohol testing are: body hair, blood, urine, breath and saliva. Breath is the go-to material since it is the easiest to use in the field. Urine and blood are also sometimes used. Blood is thought to be too invasive, so it is usually reserved for cases that involve an accident with injury or death. There are also other instances, such as the suspect being unconscious injured.

Chapter 4

Can You Refuse to take a blood alcohol content (BAC) test

You can refuse to take a blood alcohol test, but this will generally not work to your benefit. In Florida, it is mandatory that you submit to a blood alcohol test when directed to, under the “implied consent” law. It is in place to induce punishment for refusing to take a blood alcohol test. When you apply for and sign your Florida driver’s license, you are agreeing to the implied consent law and stating that in the event of being detained for suspicion of DUI, you will give authorities the bodily material necessary to get your BAC.

4a. – What are the penalties for refusing to take a BAC test?

– If you refuse to submit to a test, under Florida’s implied consent law, the result will be a mandatory suspension of your license for one full year.

– For a first offense, a DUI arrest in Florida results in a driver’s license suspension of at least six months and can be up to one year.

– Getting your license reinstated after a suspension period will require the completion of DUI school and the use of an ignition interlock device.

– There is also a very likely chance of your vehicle being impounded following your arrest.

States were finding that even with these laws in place, there were still drivers who were refusing to give their consent to take a Breathalyzer test. The real problem was that refusal was working for them. Many of the people who were refusing the Breathalyzers were getting off from the DUI charges. Authorities could have a search warrant issued for the suspect’s biological sample, but there were logistical hurdles to this solution. Before there were computers in every phone and printers in every car, paper warrants would be brought to a judge’s office or home. This process could take hours, and it often gave the suspect time to sober up and their BAC to drop. So, generally, they would be below the .08 limit by the time the warrant was delivered and a health-care professional could obtain the sample.

Now that an officer can contact an on-call judge and get the electronic warrant sent remotely to their smart phones or computers, it has solved the problem of the time delay issue. This is called a no-refusal policy, because you may be able to refuse a field BAC test, but you cannot refuse a warrant without severe penalties. There are states that are authorized to take your blood by force once a warrant has been issued, if you continue to refuse to cooperate.

Chapter 5

When are you under arrest?

Once you have had the Breathalyzer test and an officer has reason to believe that escalation of the legal process is necessary, the officer will move on to the next phase. The first part of the DUI legal process comes when the officer places the DUI suspect under arrest. You are considered under arrest when an officer has taken you into police custody and you aren’t allowed to leave or move freely. It may involve the use of handcuffs, but that is not a necessity. An officer can simply tell you that you are under arrest. If an officer has authority over your freedom to leave with or without your voluntary submission, that is the key to an arrest.

Chapter 6

What are the circumstances of an arrest?

6 a.- If a police officer personally observes you committing the crime. If an officer sees you personally commit a crime, it is within the scope of his or her duty to arrest you. If the officer pulls you over after seeing you driving erratically, and if a Breathalyzer test reveals an unlawful BAC level, the police officer then has a legal obligation to arrest the driver for a DUI charge.

6b.- If the police officer has “probable cause” to suspect there is criminal activity. If a police officer has fact-based reasonable belief that a person committed or is about to commit a crime, it is within the officer’sauthority to make an arrest. This is called “probable cause.” This can make a DUI arrest justified in certain situations where there is a strong indication that DUI is present. This is even if a chemical test administration has been refused or cannot for some reason be done. For example, a police officer sees a person toss something out of their car window. Then the officer proceeds to pull the vehicle over. It is during this stop that the officer sees empty beer bottles on the floor of the car. The officer may still make a lawful arrest based on the probable cause that a DUI occurred even if the driver does refuse the Breathalyzer test.

6c.- In the process of a traffic stop it led to a DUI arrest. It happens quite often that an officer makes a routine traffic stop, and that stop escalates to a DUI arrest. This happens because a police officer needs to show that it was not just a random act or done in a capricious way; that officers were not just stopping motorists to merely harass or intimidate the suspect. Traffic stops are legally made by officers for a whole range of things such a not stopping at a stop sign, illegal U-turns or broken tail lights. An officer sees a car that has an expired license plate and pulls the driver over. The officer then smells alcohol coming from the vehicle and notices that the driver is acting suspiciously. The police officer may consider that the driver is intoxicated. The officer would then ask the driver to take a field sobriety test and then possibly a breath test. Once these steps are completed and the officer finds that the driver is indeed intoxicated, courts will generally find that it was reasonable for the driver to be held while the officer discovered if the driver was in fact intoxicated.

6d.- An Arrest Warrant Has Been Issued When a police officer obtains a valid warrant, it is lawful for him to then initiate an arrest, or if it is a warrant for bodily material, to do a blood alcohol content (BAC) test, then begin the process of collection. A warrant is a legal document that is issued by a magistrate or judge. This generally happens preceding a police officer submitted a sworn statement that gives detailed information for the arrest.

Chapter 7

What is a warrant?

A warrant will typically:

– identify the suspect who is wanted in connection with committing the crime;

– categorize the crime that was committed;

– indicates where the suspect lives or can be found;

– authorize an officer to initiate an arrest against the person who is identified on the warrant.

Chapter 8

Can you challenge an arrest?

A police officer is bound by law to protect a citizen’s civil rights through every juncture of the criminal process. During an arrest, an officer must defend a citizen’s constitutional rights. These rights include but are not limited to the right to be free from having an unreasonable search, and the right to remain silent. If the court feels that these rights were violated at any time, it may later consider that the arrest was done in an unlawful way and throw out the evidence the court feels is tainted, or they could even possibly throw out the entire case.

If you are under arrest at some point and believe that the lawfulness of the arrest is questionable while it is happening, whether it is the foundation of the arrest that is the problem or the actual actions that the officers took, it is better to fight that battle in the court system than on the streets.

Chapter 9

What happens after an arrest for DUI?

In Florida, a first DUI arrest will sustain a number of substantial criminal and administrative penalties. These will vary based on case-specific factors, such as a minor being present in the vehicle at the time of the offense, what the BAC of the offender was, and if there were any other criminal offenses associated in conjunction with the DUI arrest.

After being arrested, you will be taken into custody and put in jail. You will be booked, fingerprinted, photographed for a mug shot and processed through the system. If you have been injured in an accident and are hospitalized, you will be given a summons to appear in court at a later date.

Chapter 10

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

There are some conditions that must be met before you will be let out of jail.

– You can no longer be under the influence of the intoxicating substances for which you were arrested.

– Your normal faculties can no longer be impaired.

– Your blood or breath alcohol level cannot be higher than 0.05.

– Eight hours must have gone by from the time you were arrested.

You will leave with a citation in hand that has the date for you to return and go in front of the judge and answer for your actions.

You will need to go to court on the date that you were given on your citation. The judge will decide what you will be charged with and what your penalties will be.

Besides the standard charge of driving under the influence, there are other charges associated with a DUI. What charges you get depends on what happened in conjunction with your driving while intoxicated. Things like having an accident, hitting something, causing property damage, injuring or killing someone, all influence what type of charge you get and the penalties you will face.

Chapter 11

Other charges associated with DUI

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

– When you cause any property damage or any personal injury while you are driving under the influence, you are guilty of a first degree misdemeanor. This can carry a fine of not more than $1,000 and imprisonment of up to one year.

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

– A person who is convicted of a third DUI within a 10-year period, or a fourth DUI, or who is a habitual offender, will be sentenced to a third degree felony. This carries a fine of not more than $5,000 and up to five years in prison.

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

– DUI/Manslaughter: This is a second degree felony that carries no more than a $10,000 fine with the possibility of up to a 15 years’ imprisonment.

– DUI Manslaughter/Leaving the Scene: You can be convicted of a DUI manslaughter charge if you knew, or should have known; an accident occurred and then didn’t stop to give your information or attempt to render aid. This is considered a first degree felony and carries up to a $10,000 fine with possible 30 years’ incarceration.

– Vehicular Homicide: This is a second degree felony that carries no more than a $10,000 fine and the possibility of a 15-year sentence.

– Vehicular Homicide/Leaving the Scene: When you are convicted of vehicular homicide with leaving the scene of an accident, you are guilty of a first degree felony. This will carry a fine of no more that a $10,000 fine and possibly a 30 years’ prison sentence.

Chapter 12

Can you plead to a lesser offense than DUI?

There are some circumstances where a plea of “wet reckless” may be accepted. The prosecution in Florida uses a wet reckless, or reckless driving involving alcohol as a charge that results in a plea bargain when a charge of DUI is reduced and changed to reckless driving.

This can occur when:

– the amount of alcohol in your system is borderline

-you were not involved in an accident

– you have no previous DUI convictions

If you do have a prior conviction on your record, there is less chance of a wet reckless plea. A wet reckless is usually considered a prior drunk driving conviction, so if you are convicted again it will be considered a second offense. If you do want to attempt to make a plea for a wet reckless, you are going to need the assistance of a lawyer.

Obtaining legal counsel as soon as possible and having your attorney present from the outset will be in your best interest. There is a lot of legal jargon to decipher. Legal counsel may seem expensive, but compared to the cost of all the fines and fees you will pay plus the inconvenience of having your license suspended and your vehicle impounded, it is essential.

Chapter 13

Drunk Driving Penalties in Florida

Drinking and then getting into a car and driving increases your chances significantly of getting into an accident. It is because of this that Florida has such strict DUI laws. If you are pulled over and the officer asks you to take a blood, urine or breath test, you are required to comply. Florida has the “Implied Consent Law.” When you sign your driver’s license, you have agreed to take these tests upon request. Refusal to take any of the tests will result in an immediate license suspension for one year. A second refusal will result in an 18-month suspension.

No one can drink alcohol and then drive safely. Drinking and driving an automobile causes many accidents and deaths each and every day. This is why Florida has chosen to make its penalties so excessive. Keep in mind that if you do decide to drink and drive, the result could be that you end up in jail. You can lose your Florida driver’s license, and be responsible for large fines. Your car insurance rate will increase dramatically. A DUI can cost you your job or make it difficult to find one in the future. It can cause you problems with your credit, and will remain on your Florida driving record for a very long 75 years.

Chapter 14

Criminal Penalties and Fines

For a first offense DUI conviction in a Florida there is no mandatory jail time, but it can have the potential of a six-month sentence, or nine months if your BAC is above .15.

– Jail – six months maximum for a BAC of .08 to under.15.

– Jail – nine months maximum for a BAC above .15.

The fines can range from the least amount of $500 to no more than $1000. It doubles in the case of the offender having a BAC of above .15 or if there is a minor child present in the vehicle when you are arrested. The fines are only a small portion of what it will actually cost you to resolve your DUI. There are administrative and criminal penalties to be paid in a first offense Florida DUI.

– Fine – From $500 up to $1,000 with a BAC that is from .08 to under .15.

– Fine – From $1,000 to $2,000 with a BAC above .15 or with a minor in the vehicle.

You will need to do community service. This can be up to 50 hours.

– Community service fine will be $10 for each hour of community service that you have to do.

Alcohol or substance abuse assessments and treatment may be a mandatory part of your sentence.

– The fees associated with rehabilitation are your responsibility.

You will have to complete DUI school. The school is 12 hours.

– DUI school carries a fee of $120.00.

Convictions stay on your record for five years. Any subsequent DUIs before that will be considered a second offense.

Your first conviction carries a total period of one year’s probation.

– Your vehicle maybe impounded for up to 10 days.

– All fees for towing and storage will be your responsibility.

– You will have you driver’s license suspended.

– The first conviction is a minimum 180 days with a maximum of one year.

– The second conviction within a five-year period will be a minimum of five years’ suspension.

– The third conviction within a ten-year period of the second conviction comes with a minimum 10 years’ suspension.

– A fourth conviction no matter of when the prior convictions happened or a DUI manslaughter, DUI serious bodily injury, or vehicular homicide conviction comes with a mandatory permanent revocation.

Chapter 15

What if the driver is under 21?

If the driver is under 21, Florida has a zero tolerance law for underage drinking and driving. Florida statutes authorize a police officer with probable cause to think that there is an automobile being driven by a person who is under 21 and under the influence of an intoxicating substance may lawfully be detained. The police can then request that the driver submit to a test that will determine their BAC. A driver under 21 can have no more that .02 BAC to be found legally intoxicated.

– The first time caught with a .02 or higher is an automatic six-month suspension of the driver’s license.

– The second or subsequent DUI will be a suspension of one year.

Chapter 16

Ignition Interlock Device

In Florida, the law states that it is mandatory for a driver who is convicted of their second DUI to have an Ignition Interlock device mounted in their vehicle. It is possible for a judge to order an Interlock to be put in on the first convictions if the circumstances warrant. Generally the programs works like this:

-First DUI Conviction – If court ordered

-First Conviction if 0.20 or minor in car – up to 6 months

-Second Conviction – At least 1 year

-Second Conviction if 0.20 or minor in car – At least 2 years

-Third Conviction – At least 2 years

Along with the inconvenience of having the Interlock device you also have to pay the costs for installation and upkeep. You have to take your car in every month to the calibration facility to have the device calibrated. This is done by appointment only and takes about 45 minutes to complete.

So here are all of the costs involved with the Interlock device:

-$70 for installation

-$67.50 for monthly monitoring and calibration

-$100 refundable deposit

Using the Interlock device can be cumbersome and time consuming. But if dealing with a repeat DUI offender it is better than the alternative.

1. You breath into the Interlock device to get the car started.

2. Wait five minutes until the device beeps and then you repeat the process of breathing into it again.

3. While driving the Interlock will beep about every 30 minutes and you have to breath into the device to keep your car going.

Every time you breath into the Interlock device it records the data and transmits it to the Florida DMV. This lets them keep track of the times you attempt to get in your car and drive while intoxicated.

Chapter 17

Fighting a DUI charge

You can fight a DUI charge. There are many ways to set up a good defense to a DUI and win. This is not something you want to attempt to do on your own. The courts deal with many DUI charges daily. They don’t like to lose and have set up the system so the deck is stacked against you. You will need an attorney that specializes in DUI defense law to win. An attorney knows what will work and what won’t.

17a – DUI defenses

Some of the defenses against a DUI charge are:

– Questions the validity of the BAC test. If only done once it can be off by as much as +/- 12.5%.

– Breathalyzer machine malfunctions or the operator has an expired license.

– An office illegally stops a driver without probable cause.

– Failure to Mirandize the driver.

– Illegal search. Police cannot search a vehicle for a minor traffic stop without authorization.

– Question the accuracy of the field sobriety test. The one leg stand test is only 65% accurate, and the walk and turn test is only 68% accurate when determining a driver’s impairment.

– In Florida the DUI portable breath test is inadmissible and cannot be used as evidence in a DUI trial.

-An officer’s prior record plus any inaccurate statements and other previous problems the officer has had can be brought up at trial.

-There are many different defenses that can come from the trial proceedings. You need to know the DUI laws well to know how and when to use these defense techniques.

Chapter 18

Finding the right attorney

Having a DUI on your record can devastate your life. Besides the humiliation of having family, friends and co-workers know that you were arrested and put in jail for drinking and driving, there is the cost and inconvenience

Hiring an attorney can have a substantial cost, but it is nothing compared to all of the fines and fees you will pay if you are convicted. Then you have the inconvenience of not having a license and trying to find a way to work. That is if you don’t end up losing your job. Many employers frown on having an employee with a DUI. If it happens in a company vehicle or you have a job were you drive for a living, then there is not much chance of keeping your job if you are convicted. Getting another job with a conviction will also be a challenge.

Find an attorney that specializes in DUI defense. Get referrals from people you know and research attorneys online. Make a list of some potential attorneys that you think might work. Meet with a few and ask some questions. Be sure to take a pencil and paper to write down questions and answers. Find an attorney that is knowledgeable and you feel comfortable with. Don’t just take the first attorney that gives you a low fee. This is going to affect the rest of your life. A DUI conviction is on your driving record for 75 years. So it is in your best interest to get a good attorney and fight the charges to keep it off of your record.

Conclusion

Drinking and driving is a no-win situation. If you do get caught drinking and driving you can lose everything. You could possibly go to jail; you will definitely pay exorbitant fines and fees and lose your license. This could very easily end up costing you your job.

If you are arrested for drinking and driving, it is imperative that you get legal counsel immediately. The sooner you hire an attorney the better. This is not a situation that you want to handle alone. There are things that you can do and say that will make the situation worse. You need someone who knows the law directing what you do and say.

It may seem that hiring an attorney is expensive, but compared to everything it will cost you to lose a DUI case, you will definitely come out ahead in the end. Be sure to do your homework. Research is the best way to be sure you are hiring the right attorney. You need to be sure that the attorney you hire is up to date on DUI law. You want someone who has experience with your type of case.

Having a DUI on your record can make getting a job difficult. It can mess up your credit and you can lose your car. There is no reason to suffer these consequences when you can have an attorney fight for you and keep this off your record for good. Don’t let one mistake mess up everything you have worked so hard for. Hire the right DUI attorney and get on with your life.

Call the Tampa DUI Defense Law Firm Finebloom & Haenel P.A. to speak with an aggressive Tampa DUI Lawyer for a free case evaluation.

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