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Driving Under the Influence

Central Florida Criminal Defense.  Criminal defense in Orlando, Winter Park, Apopka, Winter Garden, Ocoee, Windermere, Maitland, Lake Buena Vista, Eatonville,  Belle Isle, Oakland, Edgewood, Bay Lake, Clarcona, Lake Mary Jane, Sanford, Lake Mary, Oviedo, Altamonte Springs, Winter Springs, Casselberry, Longwood, Daytona Beach, South Daytona, Daytona Beach Shores, DeLand, New Smyrna Beach, Ormond Beach, Port Orange, Deltona, Orange City, Edgewater, DeBary, Holly Hill, Ponce Inlet, Oak Hill, Lake Helen, Pierson, Titusville, Cocoa, Rockledge, Cape Canaveral, Satellite Beach, Melbourne, West Melbourne, Palm Bay, Indialantic, Melbourne Beach, Indian Harbour Beach, Malabar, Palm Shores, Cocoa Beach, and surrounding areas. Criminal defense attorney Brian Byrd prosecuted countless DUI cases during his time as an Assistant State Attorney in Orange County, FL.  This valuable experiences gives Brian the experience to evaluate the strengths and weaknesses of the case and to determine if there are any motions that should be filed on your behalf.  A DUI case is a misdemeanor like no other.  A Central Florida DUI conviction will result in a mandatory "adjudication of guilt", probation, numerous sanctions and fines, and perhaps worst of all: serious long-term effects on your automobile insurance.  If you have a DUI case in Central Florida, do not simply simply plead guilty before speaking with an experienced criminal attorney. 

"Should I take the breath test, or should I refuse to provide a breath sample?"

 

This is certainly the most common question asked by the citizens of Orange, Osceola, Seminole, Volusia, and Brevard counties.  The answer is simple... It depends.  If you have been drinking, the safer choice would be to decline to take the breath test.  Why would you want to provide the State Attorney's Office or Law Enforcement with additional evidence of your guilt?  They haven't done you any favors, so don't do them any favors.  However, if you haven't had anything to drink that day, certainly you should take the breath test as this will provide exculpatory evidence. 

 

There are other factors to consider as well when you are arrested on the charge of Driving Under the Influence (DUI) in Orange, Osceola, Seminole, Volusia, and Brevard counties.  One of the most important is the status of your Driver's License.  If you refuse to provide a breath sample you will be read the Florida Implied Consent law. which is as follows:

 

“If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine, or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine, or blood, you will be committing a misdemeanor [per Florida Statute 319.1939]. Refusal to submit to the test I have requested is admissible into evidence in any criminal proceeding.

Do you still refuse to submit to this test, knowing that your driving privilege will be suspended for a period of at least one (1) year and that you may be charged criminally for any subsequent refusals?”

 

Does this warning seem confusing?  It is meant to be.  Most people are unable to determine the best course of action when this law is read to them, especially if they had been drinking or were under the influence of some another substance.  Please remember this when makng your decision, if you provide a breath sample over a .08, your license will be suspended by the Florida DHSMV.  Base your decision only on if you have been drinking or not.  Remember, DUI in Central Florida is not "Drunk Driving", it is Driving Under the Influence (You do not have to be drunk to legally be under the influence).  Your goal in this situation should be to provide the State with as little evidence against you as possible. 

Right to Remain Silent

 

No Law Enforcement Officer in the Orange, Osceola, Seminole, Volusia, and Brevard counties can force you to incriminate yourself.  It is your absolute right to remain silent when questioned by Law Enforcement.  If you do not believe that you are capable of maintaining a full conversation free of mumbling or slurring of your speech, simply invoke your 5th Amendment right to remain silent.  You will most likely go to jail because you have not convinced the Officer that you are not Under the Influence, but there will not be any statements made by you that can be used against you.  If the Officer asks you the inevitable "how much have you been drinking tonight", and you have had six beers, why would you provide him or her with that additional evidence against you?  When in doubt, invoking your right to remain silent is always the best course of action as the State will not be able to use this silence against you at trial. 

 

It is important to remember that there is always a possibility that some or all of your DUI investigation or arrest may be on camera.  It is critical that you put forth your best behavior and show as little evidence of impairment as possible for any camera that may capture the incident.  Once again, at this point it is about damage control, and a video that appears to show a "normal, unimpaired" person can be potentially devastating to the State's case against you. 

Penalties for DUI

 

 

Due to serious lobbying efforts from organizations such as Mother's Against Drunk Driving (MADD), the mandatory first-time DUI offenses are very serious.  A DUI is a crime, which without the proper representation could easily turn into significant jail time.  An experienced prosecutor, however, can take steps to curb this with either: litigation, mitigation, or even having the charges reduced or dismissed.  Below are the mandatory penalties and administration rules straight from the DHSMV website for DUI convictions by Florida State Statutes:

 

DUI (Driving Under the Influence of Alcoholic Beverages, Chemical Substances or Controlled Substances). s. 316.193, F.S.

Under Florida law, DUI is one offense, proved by impairment of normal faculties or unlawful blood alcohol or breath alcohol level of .08 or above. The penalties upon conviction are the same, regardless of the manner in which the offense is proven.

 

Fine Schedule s. 316.193(2)(a)-(b), F.S.

  • First Conviction: Not less than $500, or more than $1,000. With Blood/Breath Alcohol Level (BAL) of .15 or higher or minor in the vehicle: Not less than $1,000, or more than $2,000.

  • Second Conviction: Not less than $1,000, or more than $2,000. With BAL of .15 or higher or minor in the vehicle: Not less than $2,000, or more than $4,000.

  • Third Conviction More than 10 years from second: Not less than $2,000, or more than $5,000. With BAL of .15 or higher or minor in the vehicle: Not less than $4,000.

  • Fourth or Subsequent Conviction: Not less than $2,000.

 

Community Service - s. 316.193 (6)(a), F.S.

First Conviction: Mandatory 50 hours of community service or additional fine of $10 for each hour of community service required.

Probation - s. 316.193 (5)(6), F.S.

First conviction, total period of probation and incarceration may not exceed 1 year.

Imprisonment- s. 316.193 (2)(a) 2, 4(b), (6)(j), F.S.

At court's discretion, sentencing terms may be served in a residential alcoholism or drug abuse treatment program, credited toward term of imprisonment.

  • First Conviction: Not more than 6 months. With BAL of .15 or higher or minor in the vehicle: Not more than 9 months.

  • Second Conviction: Not more than 9 months. With BAL of .15 or higher or minor in the vehicle: Not more than 12 months. If second conviction within 5 years, mandatory imprisonment of at least 10 days. At least 48 hours of confinement must be consecutive.

  • Third Conviction: If third conviction within 10 years, mandatory imprisonment of at least 30 days. At least 48 hours of confinement must be consecutive. If third conviction more than 10 years, imprisonment for not more than 12 months.

  • Fourth or Subsequent Conviction: Not more than 5 years or as provided in s.775.084, Florida Statutes, as habitual/violent offender.

 

Impoundment of Immobilization of Vehicle - s. 316.193 (6), F.S.

Unless the family of the defendant has no other transportation: First conviction = 10 days; second conviction within 5 years = 30 days; third conviction within 10 years = 90 days. Impoundment or immobilization must not occur concurrently with incarceration. The court may dismiss the order of impoundment of any vehicles that are owned by the defendant if they are operated solely by the employees of the defendant or any business owned by the defendant.

 

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

  • The person is no longer under the influence and;

  • The person's normal faculties are no longer impaired

  • The person's blood/breath alcohol level is lower than 0.05; or

  • Eight hours have elapsed from the time the person was arrested.

 

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

Any person who causes property damage or personal injury to another while driving under the influence is guilty of a First Degree Misdemeanor (not more than $1,000 fine or 1-year imprisonment).

 

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

  • Any person convicted of a third DUI within 10 years or a fourth or subsequent DUI commits a Third Degree Felony (not more than $5,000 fine and/or 5 years imprisonment).

  • Any person who causes serious bodily injury while driving under the influence is guilty of a Third Degree Felony (not more than $5,000 fine and/or 5 years imprisonment) or if habitual/violent felony offender as provided in s. 775.084, F.S.

 

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

  • DUI/Manslaughter: Second Degree Felony (not more than $10,000 fine and/or 15 years imprisonment).

  • DUI Manslaughter/Leaving the Scene: A driver convicted of DUI Manslaughter who knew/should have known accident occurred; and failed to give information or render aid is guilty of a First Degree Felony (not more than $10,000 fine and/or 30 years imprisonment).

  • Vehicular Homicide: Second Degree Felony (not more than $10,000 fine and/or 15 years imprisonment).

  • Vehicular Homicide/Leaving the Scene: A driver convicted of vehicular homicide who left the scene of an accident is guilty of a First Degree Felony (nor more than $10,000 fine and/or 30 years imprisonment).

 

Driver License Revocation Periods for DUI-s. 322.271, F.S. and s. 322.28,F.S.

A. First Conviction: Minimum 180 days revocation, maximum 1 year.

B. Second Conviction Within 5 Years: Minimum 5 years revocation. May be eligible for hardship reinstatement after 1 year. Other 2nd offenders same as "A" above.

C. Third Conviction Within 10 Years of the second conviction: minimum 10 years revocation. May be eligable for a hardship reinstatement after two years.

D. Fourth Conviction, Regardless of When Prior Convictions Occurred) and Murder with Motor Vehicle: Mandatory permanent revocation. No hardship reinstatement.

E. DUI Manslaughter: Mandatory permanent revocation. If no prior DUI related convictions, may be eligible for hardship reinstatement after 5 years.

F. Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: Minimum 3-year revocation. DUI Serious Bodily Injury having prior DUI conviction is same as "B-D" above.

 

Commercial Motor Vehicles (CMV) - Alcohol-Related Convictions/Disqualifications-s. 322.61, F.S.

  • Persons convicted of driving a commercial motor vehicle with a blood alcohol level of .04 or above: driving a motor vehicle while he or she is under the influence of alcohol or a controlled substance or refusing to submit to a test to determine the alcohol concentration while driving a commercial motor vehicle, driving a commercial motor vehicle while under the influence of alcohol or controlled substance, or driving a commercial motor vehicle while in possession of a controlled substance shall be disqualified from operating a commercial motor vehicle for a period of 1 year. This is in addition to any provisions of s. 316.193 for DUI convictions.

  • Second or subsequent conviction of any of the above offenses arising out of separate incidents will result in a permanent disqualification from operating a commercial motor vehicle.

  • There are no provisions for persons disqualified from operating a commercial motor vehicle to obtain a hardship (business or employment) license to operate a commercial motor vehicle.

 

Business Purposes Only/Employment Purposes Only Reinstatements-s. 322.271, F.S. and s. 322.28, F.S.

  • First Conviction: Must complete DUI school, apply to department for hearing for possible hardship reinstatement. Mandatory ignition interlock device for up to six months for BAL of .15.

  • Second Convictions (or more): No hardship license except as provided below. Mandatory ignition interlock device for one year, or for two years if BAL is greater than .20.

  • Second Conviction Within 5 Years: (5-Year Revocation) May apply for hardship reinstatement hearing after one year. Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period (failure to report for counseling or treatment shall result in cancellation of the hardship license). Applicant may not have consumed any alcoholic beverage or controlled substance or driven a motor vehicle for 12 months prior to reinstatement. Mandatory ignition interlock device for one year or for two years if BAL is greater than .15.

  • Third Conviction Within 10 Years: (10-Year Revocation) May apply for hardship reinstatement hearing after two years. Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period (failure to report for counseling or treatment shall result in the cancellation of the hardship license). Applicant may not have consumed any alcoholic beverage or controlled substance or driven a motor vehicle for 12 months prior to reinstatement.  Mandatory ignition interlock device for two years.

  • DUI Manslaughter With No Prior DUI Related Conviction: (Permanent Revocation): May be eligible for hardship reinstatement after 5 years have expired from date of revocation or expired from date of term of incarceration provided the following requirements have been met:

1. Has not been arrested for a drug-related offense for at least 5 years prior to the hearing;

2. Has not driven a motor vehicle without a license for at least 5 years prior to the hearing;

3. Has been alcohol and drug-free for at least 5 years prior to the hearing; and

4. Must complete a DUI school and must be supervised under the DUI program for the remainder of the revocation period (failure to report for counseling or treatment shall result in cancellation of the hardship license).

5. Ignition interlock device required for two years.

  • Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: (3 Year Revocation): May immediately apply for hardship reinstatement hearing. Must complete DUI school or advanced driver improvement course.

 

DUI School Requirements - s. 316.193 F.S., s. 322.271, F.S., s. 322.291, F.S.

  • First Conviction: Must complete DUI school before hardship reinstatement. Customers who wait out revocation period before reinstatement need only show proof of enrollment or completion to become re-licensed. If customer enrolls and is reinstated after revocation period expires, failure to complete the DUI school within 90 days after reinstatement will result in license cancellation; the driver cannot then be re-licensed until DUI school is completed.

  • Second Conviction in 5 Years (5-Year Revocation) or Third Conviction in 10 Years (10-Year Revocation): Customer must complete DUI school following conviction. See requirements in 13C and 13D respectively.

  • DUI Manslaughter With No Prior DUI Related Conviction: (Permanent Revocation): Must complete DUI school before hardship reinstatement.

  • Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide: (Minimum 3 year Revocation): See 13F

  • Customers Who Wait Until Revocation Period Expires: Must enroll in DUI school and pass the driver license examinations to be re-licensed. Failure to complete the school within 90 days after such reinstatement will result in cancellation of the license until the school is completed.

  • Reckless Driving: If the court has reasonable cause to believe that the use of alcohol, chemical or controlled substances contributed to a violation of reckless driving, the person convicted of reckless driving must complete DUI school if ordered by the court.

  • Treatment: Treatment resulting from a psychosocial evaluation may not be waived without a supporting psychosocial evaluation by a court appointed agency with access to the original evaluation.

 

Chemical or Physical Test Provisions (Implied Consent Law)-s. 316.1932, F.S., s. 316.1933, F.S., s. 316.1934, F.S, s. 316.1939, F.S

  • Refusal: Refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings. Second or subsequent refusal is a misdemeanor of the first degree.

  • Driver License Suspension Periods: First refusal, suspended for 1 year. Second or subsequent refusals, suspended for 18 months.

  • Commercial Driver License Disqualification Periods: First refusal in a commercial motor vehicle, disqualified for 1 year. Second or subsequent refusals in a commercial motor vehicle, disqualified permanently. No hardship reinstatement permitted.

  • Forceful Withdrawal of Blood: If necessary, blood may be withdrawn in DUI cases involving serious bodily injury or death by authorized medical personnel with the use of reasonable force by the arresting officer, even if the driver refuses.

  • Unconscious: Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition shall be deemed not to have withdrawn his consent to such test. A blood test may be administered whether or not such person is told that his failure to submit to such a blood test will result in the suspension of his privilege to operate a motor vehicle.

  • Portable Alcohol Breath Testing Devices: Authorized by s.322.2616, F.S., for persons under the age of 21. Reading is admissible as evidence in any administrative hearing conducted under s. 322.2616, F.S.

 

Adjudication and Sentencing - s. 316.656, F.S., s. 322.2615 F.S.

Penalty to be Imposed by Court: Judges are prohibited from deviating from the administrative suspension/revocation periods mandated by statute. The courts are prohibited from withholding adjudication in DUI cases; or from reducing a DUI charge if the defendant's blood alcohol was .15 or greater.

 

Driving While License Suspended or Revoked- s. 322.34, F.S.

Any person whose driver license/privilege is suspended for Driving with an Unlawful Alcohol Level, or revoked for DUI, DUI Manslaughter or Vehicular Homicide, or for any other offense ordered by the court and who causes death or serious bodily injury to another person by operating a motor vehicle in a careless or negligent manner is guilty of a 3rd degree felony, punishable by both imprisonment of not more than 5 years, a fine not to exceed $5,000, or both.

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Administrative Suspension of Persons Under the Age of 21 for Driving With an Alcohol Level .02 or Above

Section 322.2616, Florida Statutes, authorizes law enforcement officers having probable cause to believe that a motor vehicle is being driven by or is in the actual physical control of a person who is under the age of 21 while under the influence of alcoholic beverages or who has any alcohol level may lawfully detain this person and may request them to submit to a test to determine the alcohol level. This violation is neither a traffic infraction nor a criminal offense, nor does being detained under this statute constitute an arrest.

  • First Suspension for Persons Under the Age of 21 With An Alcohol Level .02 or above: 6 months.

  • Second or Subsequent Suspensions 1 year.

  • First Suspension for Refusal to Submit to Breath Test: 1 year.

  • Second or Subsequent Suspensions for Refusal: 18 months.

  • The suspension is effective immediately. If the breath or blood alcohol level is .05 or higher the suspension shall remain in effect until completion of a substance abuse evaluation and course. The officer will issue the driver a temporary permit effective 12 hours after issuance which is valid for 10 days, provided the driver is otherwise eligible.

 

Administrative Suspension Law - s. 322.2615, F.S., s. 316.193, F.S., s. 316.1932, F.S.

  • First Suspension for Driving With an Unlawful Alcohol Level (.08 or above): 6 months.

  • Second or Subsequent Suspensions for Driving With an Unlawful Alcohol Level (.08 or above): 1 year.

  • First Suspension for Refusal to Submit to Breath, Urine or Blood Test: 1 year.

  • Second or Subsequent Suspensions for Refusal: 18 months.

  • The suspension is effective immediately The officer will issue the driver a temporary permit valid for 10 days from the date of arrest, provided the driver is otherwise eligible.

 

Administrative Disqualification Law

  • First Disqualification for Driving a Commercial Motor Vehicle With an Unlawful Blood Alcohol Level (.04 or above): 1 year disqualification

  • driving a motor vehicle while he or she is under the influence of alcohol or a controlled substance: 1 year disqualification

  • First Disqualification for Refusal to Submit to Breath, Urine or Blood Test Arising from the Operation of a Commercial Motor Vehicle: 1-year disqualification

  • Second or Subsequent Disqualification for Refusal to Submit to Breath, Urine, or Blood Test Arising from the Operation of a Commercial Motor Vehicle: permanently disqualified.

  • Second or Subsequent Disqualification of driving a motor vehicle while he or she is under the influence of alcohol or a controlled substance: Permanently disqualification

  • The disqualification is effective immediately upon refusal of the breath, urine or blood test or determination that the driver has a blood alcohol level of .08 or above, while operating or in actual physical control of a commercial motor vehicle. The officer will issue the driver a temporary permit which is valid for 10 days from the date of arrest or disqualification, provided the driver is otherwise eligible. However, the permit does not authorize the operation of a commercial motor vehicle for the first 24 hours of disqualification.

Review Hearings For Administrative Suspensions And Disqualifications

Sections s. 322.2615 and s. 322.64, F.S., authorize the Department of Highway Safety and Motor Vehicles upon the request of the driver to conduct formal and informal reviews for the purpose of sustaining, amending or invalidating administrative suspensions and disqualifications. The decisions of the department shall not be considered in any trial for a violation of s. 316.193, F.S., nor shall any written statement submitted by a person in his request for review be admissible into evidence against him in any such trial. The disposition of any related criminal proceedings shall not affect a suspension/disqualification.

Business or Employment Reinstatement:

1.Suspension for Driving With an Unlawful Alcohol Level of .08 or above or Refusal: Must show proof of enrollment in DUI school and apply for an administrative hearing for possible hardship reinstatement. For unlawful alcohol level must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement. For first refusal must serve 90 days without driver license or permit prior to eligibility for hardship reinstatement. No hardship reinstatement for two or more refusals.

2. Suspension - Persons Under Age of 21 Driving With a Breath Alcohol Level of .02 or above: Must complete a Traffic Law and Substance Abuse Education course before hardship reinstatement.  .05 or higher, must complete DUI program prior to eligibility for hardship reinstatement. Must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement.

Hardship License Prohibited:

1. Florida law prohibits any hardship reinstatement upon 2nd or subsequent suspension for test refusal or if driver has been convicted of (DUI) section 316.193, F.S., two or more times.

2. Persons disqualified from operating a commercial motor vehicle cannot obtain a hardship license to operate a commercial motor vehicle.