Read our article on Understanding Florida’s DUI Actual Physical Control Law
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What sanctions accompany a DUI conviction?
In Florida, the typical punishment for a first time DUI conviction includes suspension of your driver’s license, payment of a fine, completion of DUI School, and probation. Although there is no mandatory jail for a first time DUI conviction, the Judge does have the discretion to impose a county jail sentence. In addition, you may be required to perform community service hours and/or have an ignition interlock device installed on your vehicle. Jail sentences are mandatory for most multiple offenders. View an in depth chart detailing the recent update to the mandatory minimum DUI penalties.
What does it mean if the State of Florida is seeking “enhanced DUI penalties?”
If certain circumstances are present in your case, you may be facing “enhanced DUI penalties.” Factors that could cause “enhanced DUI penalties” include:
Will a DUI conviction affect my insurance rates?
In the event your insurance company uncovers your DUI conviction, they could view you as a considerable risk, and more than likely, increase the premium you pay for insurance coverage. Getting your DUI charge reduced to Reckless Driving could avoid a major insurance increase. Learn more about the possibility of getting a DUI reduced to Reckless Driving.
How will a prior DUI conviction in another state affect my current case?
In Florida, the State Attorney’s Office will use prior DUI convictions from another state against you. This could result in harsher penalties which include incarceration, enhanced fines and a lengthier driver’s license suspension. However, an experienced DUI attorney can sometimes file a motion that seeks to “strike” a prior conviction on a number of legal grounds. These include, but are not limited to, situations where the out of state DUI law was not similar to Florida’s DUI legislation or where the out of state DUI conviction occurred at a time when you were without the benefit of legal counsel. Our office has access to your official driving history. As a result, we may be able to anticipate whether the prosecutor intends to seek an enhancement in your case based upon a prior DUI conviction. In other cases, the prior DUI conviction is so old that the record to prove that the conviction occurred is simply unavailable.
What kind of driving does law enforcement look for in order to justify a stop on the basis that the driver may be under the influence?
If the traffic stop in my case was illegal, can that benefit me in court?
The basis or underlying reason for the stop of your motor vehicle can be a critical issue in defending your charge. Your attorney may be able to seek the suppression of all evidence in your case, should the court be convinced that the law enforcement officer lacked sufficient “reasonable suspicion” to justify the initial stop of your motor vehicle. The Fourth Amendment of the United States Constitution protects you in this regard. A law enforcement officer is precluded from stopping your vehicle simply based on a “hunch” that you are impaired. The facts and circumstances of every case are different. During our free consultation, our office can evaluate the issues regarding the stop of your vehicle and any other possible defenses.
Is the law enforcement officer looking for specific indications during the roadside investigation that would lead him to further suspect a DUI?
Police officers go through standardized training to detect possible signs of a driver under the influence. Some of these warnings include:
It is important to understand that these standardized “clues” can often be misinterpreted by law enforcement. A DUI lawyer can often argue that you may have been simply nervous, tired, sick, or injured. A client’s cooperation in providing his lawyer with background information and/or medical reports can often be highly beneficial.
What if I admitted to consuming alcohol when I was questioned by law enforcement?
An admission to the consumption of alcohol will obviously be used as evidence in your case by the prosecutor. However, it is important to remember that:
Therefore, simply telling law enforcement that you consumed alcohol does not mean that you are guilty of DUI. As long as you did not make admissions that are especially damaging (such as admitting to feeling the effects of the alcohol or being under the influence), your DUI case may still be quite defendable. In fact, many times it can be beneficial if a client admitted to consuming a small amount of alcohol so as to provide an innocent explanation for the odor of alcohol that is detected on his or her breath.
Am I required to perform roadside field sobriety exercises?
Although Florida law imposes legal ramifications if you refuse to submit to a breath, urine or blood test, you are not obligated to complete any of the requested roadside field sobriety exercises. There are no criminal penalties for refusing the Field Sobriety Exercises. Nevertheless, law enforcement will likely consider your refusal as indicative of a “consciousness of guilt.” As a result, if you seriously believe you can perform the tasks correctly and competently, it may benefit you to perform the field sobriety exercises. If you do well, your results can be used by your attorney as evidence that you were not, in fact, under the influence. These field sobriety exercises are often recorded on video. In some cases, video can be used by your attorney as exculpatory evidence to justify the reduction of your charge or to seek an acquittal in your case. Conversely, if you feel incapable of performing the field sobriety exercises, it may be wise to politely refuse to comply with these tasks. Learn more about the impact of refusing to perform field sobriety tests.
The lawyers in our office are certified in the proper administration of field sobriety exercises. We routinely review the video taken of our clients in connection with their DUI arrest to determine if law enforcement properly administered these tests. Our careful examination of this video evidence can be critical to properly evaluating the strengths and weaknesses of our client’s case. In that regard, we welcome our client’s participation in the process by having them watch their video and consult with us on their own observations of their field sobriety test performance.
Can I ask to have an attorney present when the law enforcement officer is conducting a DUI investigation?
In Florida, you do not have the right to an attorney before deciding whether you will perform physical field sobriety exercises. Likewise, you do not have the right to an attorney when making the decision as to whether you will submit to a breath test. If you are in custody, you do have the right to consult with an attorney both before and during any questioning by the police. Learn about your possible remedies if the police fail to read you your Miranda rights before they begin questioning you.
Am I required to provide a breath, urine, or blood sample?
Under Florida law, if you are operating a vehicle within the state, you are presumed to have already given your consent to submit to a test meant to detect the presence of alcohol in your breath. You are also presumed to have given your consent for a urine test to determine the presence of any controlled substance. Law enforcement is therefore permitted to ask for either a breath test, a urine test, or both tests. If you examine your Florida driver’s license you will see that it contains the warning, “Operation of a motor vehicle constitutes consent to any sobriety test required by law.”
As a result of the implied consent law, if you refuse to submit a breath or urine sample, the Florida Department of Highways Safety and Motor Vehicles, Division of Driver’s Licenses will automatically suspend your driver’s license for at least one year. In order to encourage drivers to submit a sample, the suspension is shorter if you comply with law enforcement, but blow a .08 or higher. Of course, providing a breath test sample will often arm the prosecutor with additional evidence to secure a conviction. Therefore, the decision to cooperate by providing a breath test, or to refuse the breath test, can often be quite difficult.
If you refuse the breath and/or urine test, the State Attorney’s Office will lack physical evidence of your impairment; but they will use your refusal to argue your “consciousness of guilt.” Your attorney can often present reasonable explanations as to why you refused to submit to a breath test and can emphasize that the State lacks precise physical evidence to demonstrate your impairment. As a result, when deciding whether to submit to a breath and/or urine test, you must weigh the consequences of a refusal against the danger of arming the State with evidence that you had a breath test result over the legal limit.
Whether you submitted a sample of a .08 or above or refused, you have the ability to challenge your driver’s license suspension within ten days from the date of your arrest through a DHSMV Formal Administrative Review Hearing. We can represent you at this hearing and argue that the suspension should be overturned. Our written request for such a hearing will often result in the issuance of a temporary driver’s license that will enable you to continue to lawfully drive. Click Here to learn more about Getting Your Driver’s License Back.
The taking of blood is only allowed in certain limited circumstances:
Is there a difference between a blood test and a breath test?
Many people are surprised to discover that the Intoxilyzer is far less accurate in measuring impairment than a blood test. The Intoxilyzer does not actually measure your blood alcohol level. Rather, it measures the alcohol content in your breath. When you submit a breath sample into an Intoxilyzer machine used by local Pinellas County law enforcement, you should know that the device is not set up to preserve a separate sample of your breath for later independent testing.
As a result of the limitations of breath testing, Florida Statute 316.1932 was enacted. This law gives you the right to request an independent blood test if you submit to a breath test and you are unhappy with the result. Not only is a blood test more accurate than a breath test, a sample of your blood can be retained for subsequent re-testing in a laboratory. Keep in mind; although better than breath tests, blood tests may still provide flawed results due to contamination, improper police procedures or other factors. Nonetheless, if you honestly believe that your breath alcohol reading reflected by the Intoxilyzer is inaccurate and you believe your blood alcohol content is below the legal limit, requesting an independent blood test may be in your best interest. Read more about the deficiencies of the Intoxilyzer and your right to an independent blood test.
If a blood draw was conducted in your case, the admissibility of your blood alcohol test results will depend on whether the State can show compliance with a multitude of administrative regulations and the requirements of the Florida Statutes. This often includes the argument that, despite your transport to a hospital, the taking of breath or urine was not impractical or impossible. Likewise, there may be an opportunity to argue that the degree of injury involved in the case did not rise to the level of “serious bodily injury” where the highly invasive method of a “forced blood draw” was justified. At our consultation, we can discuss the facts of the blood draw in your case and the possibility of seeking to keep the blood test results out of court.
Is law enforcement required to conduct an observation period before collecting a breath sample?
If you have any traces of alcohol in your mouth or esophagus, the accuracy of the Intoxilyzer results could be compromised. The Intoxilyzer is designed to test only a deep lung air sample. Injecting pure alcohol from the mouth directly into the breath test tube will cause the machine to register a faulty high reading. You may get this “mouth alcohol” effect through belching, hiccupping or vomiting. Likewise, having dental appliances in your mouth could trap alcohol and have a great potential to interfere with the securing of an accurate breath alcohol test result.
In order to prevent the results from being inaccurate, the Intoxilyzer operator is required to monitor you for 20 minutes prior to your submission of a breath sample. He does this to better ensure that none of these variables will cause “mouth alcohol” to be present in your mouth or throat prior to your submission to the intoxilyzer machine. If the officer fails to observe you consistently for 20 minutes, you should inform our office so that we can further explore the validity of the test results.
Am I still in trouble if I blew less than a .08 BAC?
Yes. In Florida, it is illegal to drive if your normal faculties are impaired. Although you are presumed impaired if your BAC is .08 or greater, you can still be convicted of DUI if your BAC is lower than the presumptive legal limit. In such as case, the State Attorney’s Office will have to prove that your “normal faculties were impaired.” However, blowing under the legal limit may make your case a good candidate for a reduction from DUI to reckless driving. In most instances, where a driver blows under a .08, law enforcement will request a urine sample for laboratory analysis to reveal any use of controlled substances. We can secure the laboratory report in advance of your court appearance to examine the toxicology results. Click here to learn about the prosecutor’s limitations with urine testing in DUI cases.
How can I be charged with a DUI if my car was not even moving?
Under Florida law, the prosecutor must prove that either you were “driving” a vehicle, or “in actual physical control of your vehicle.” Actual physical control is satisfied if you are found inside the vehicle, with the keys readily accessible and you have the capability to operate your vehicle. It is not necessary that you actually move the vehicle from one point to another. As a result, you can be charged with DUI if you are found sitting or sleeping in your parked car and your car keys are located by law enforcement within the interior portions of your vehicle. It is also important to note that your vehicle need not be observed on a street or highway. The vehicle’s location need only be within the jurisdictional boundaries of the state of Florida. Thus, your DUI charge is not subject to dismissal if you were observed in “actual physical control” and your vehicle was parked in a parking lot or even in your own driveway. That being said, our office has found that “actual physical control” cases tend to be weaker than those where our client was observed by law enforcement driving in a manner consistent with impairment, such as weaving, swerving, failing to maintain a single lane, or driving without headlights.
Read our article on Understanding Florida’s DUI Actual Physical Control Law
How can my lawyer use Actual Physical Control in my DUI case to negotiate a reduced charge?
From a practical standpoint, a St. Petersburg / Clearwater DUI defense attorney can often find DUI “actual physical control” cases to be good candidates for reduction to a “reckless driving” charge. Although the technical elements of a DUI may be met, the defense attorney can nevertheless argue to the prosecutor that his client lacked “criminal intent’ to commit the DUI offense. In other words, there is ‘mitigation’ since his client attempted to do what he thought was the right thing. (By pulling over and “sleeping it off,” rather than continuing to drive.) If the driver is asleep at a traffic light this argument carries little merit. But a vehicle lawfully parked could suggest that the driver exercised good judgment by not driving.
How can the law enforcement officer seize my driver’s license if I have not been proven guilty yet?
In Florida, your driver’s license may be immediately suspended and seized if you submit to a breath test that returns a result that is a .08 or higher. Alternatively, your driver’s license can be suspended for refusing to submit to a lawful request for breath, blood, or urine. (If you examine a the bottom of a Florida drivers License below the driver’s signature you will find the following warning: “Operation of a motor vehicle constitutes consent to any sobriety test required by law.”)
If your driver’s license was seized by law enforcement, it was taken under the authority of “Florida’s Implied Consent Law” and represents an “administrative suspension” as opposed to a “court imposed suspension” that follows a DUI conviction. Clients who act quickly to retain counsel can challenge this “administrative suspension” through a DHSMV formal review hearing. However, you must make this challenge within ten days from the date of your arrest. Click here to learn more about getting your driver’s license back. In the case of first offenders, it may be wise to “waive” your right to challenge the administrative suspension, so as to avoid any period of time during which you are not lawfully permitted to drive at all.
After the officer takes my license, can I still drive?
If your privilege to drive was valid at the time you were arrested for DUI, then the DUI “Uniform Traffic Citation” you received serves as a temporary driver’s license and enables you to lawfully drive for ten days following the date of your arrest. (This is noted in the small red print that appears at the bottom of your citation.) In fact, the bottom of your citation should contain the statement “Eligible for Permit” with a box next to it checked “yes.” However, if it is your first offense, your highly experienced DUI Defense Attorney may be able to advise you of the proper steps that you should take to “waiver your right” to challenge the suspension and obtain an uninterrupted hardship driver’s license. In other cases, it is imperative that you immediately hire a lawyer who can file a written request with the DHSMV for a “Formal Review Hearing.” Under most circumstances, the request for the “Formal Review” hearing will cause a “Temporary Driving Permit” to be issued for you. This “Driving Permit” is valid for an additional six week period and is used by the driver. Your failure to have your lawyer request the “Formal Review Hearing” within the first ten days will result in an automatic administrative suspension of your privilege to drive at midnight on the tenth day following the date of your DUI arrest.
Should your lawyer later advise you that you received a favorable outcome at the “Formal Review Hearing,” you will then be eligible to have your full driving privileges reinstated. In other words, a regular driver’s license can then be reissued to you by the Department of Highway Safety, Division of Drivers Licenses. As such, you would discontinue use of the “Temporary Driving Permit.” However, keep in mind that although under this scenario, you may have been successful in avoiding the “administrative suspension,” you will still be subject to a mandatory court ordered suspension if you are later convicted of the DUI in court.
As you can see, the issues associated with driving after a DUI arrest are rather complex. However, our office routinely files the appropriate documentation to ensure continued driving privileges. We are also thorough in the counseling of our clients so as to better insure that they avoid being rearrested for charges such as “Driving While License Suspended or Revoked,” or “Violation of Driver’s License Restrictions.”
Click Here for further Information on “Hardship License Tips”
Find out more about Temporary Driving Permits and DHSMV Formal Review Hearings.
If the law enforcement officer forgot to read me my Miranda rights, can my case be dismissed?
The 5th Amendment to the United States Constitution protects you against self incrimination. In most cases, after you are arrested, a law enforcement officer will read you your “Miranda Rights.” However, if he fails to do so, only the statements you make after the arrest are inadmissible as evidence. In other words, the State of Florida can still prosecute you. But they must use evidence other than the statements in their effort to secure a conviction. Thus, the failure of the police officer to read you Miranda does not mean the charges will be summarily dismissed, but it may help your case if you were deprived of your Miranda warnings during interrogation. For example, suppressing incriminating statements may sometimes lead to getting your case reduced to “Reckless Driving.”
Could there be a legal defense to my DUI charge?
Depending on the specific facts of your case, you may have a number of potential defenses. An experienced St. Petersburg / Clearwater attorney can review your situation and challenge several aspects of the prosecution’s case, including:
Do I really need to hire an attorney?
The State of Florida has a reputation for being “tough on DUI offenders.” As a result, Florida legislation regarding DUI is complicated. Only an experienced St. Petersburg / Clearwater / Pinellas DUI attorney can keep up with this changing legal landscape. We can analyze the specific facts of your case and come up with the best possible strategy. This might include motions to suppress damaging evidence or requests for reduction to a lesser offense. A lawyer skilled in the area of DUI may also be able to help keep you driving. Click here to learn the many ways a lawyer can help, even if you wish to simply plead guilty.
Do not trust the advice of family or friends who tell you to just go to court without a lawyer and throw yourself at the mercy of the court. The judge does not have the authority to reduce your charge to Reckless Driving. Initial consultations with a lawyer in our office are free. We are former Florida State Prosecutors who learned the “street level” tactics of law enforcement from the inside. Click here to learn more about our DUI defense credentials. We have a firm understanding and familiarity with the Pinellas County criminal justice system. We can help!
2380 Drew Street, Unit 6
Clearwater, FL 33765
Phone: (727) 855-3847
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