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The Implied Consent / Administrative License Suspension (ALS) Proceeding: Under Florida law, any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within the State of Florida is, by operating a vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an breath test for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages. Pursuant to this “implied consent” law, drivers face a penalty (a license suspension) for failing or refusing a chemical (breath / blood) test. See 316.1932 Florida Statutes.
Your Florida drivers’ license (or your right to drive in Florida if you’re not a Florida licensed driver) was most likely suspended for six, twelve or eighteen months for failing (.08 or higher (.02 or higher for minors; .04 or higher for CDL drivers)) or refusing a breath test. Read your paperwork carefully. You generally have ten days from the date of your arrest to request a hearing to challenge (appeal) the administrative license suspension. This hearing is commonly referred to as a DMV Hearing. The Bureau of Administrative Reviews is the agency that conducts these hearings.
If you had a valid Florida driver license at the time of your arrest, the officer should have issued you a temporary license which is valid for the 10 days following your arrest. If you make a timely request for a hearing to contest the administrative license suspension, your temporary permit will generally last until seven days after the administrative hearing. Keep in mind, you face a second separate license suspension if you are convicted of the Florida DUI charge. See below.
Florida Statutes 316.193(8):At the arraignment, or in conjunction with any notice of arraignment provided by the clerk of the court, the clerk shall provide any person charged with a violation of this section with notice that upon conviction the court shall suspend or revoke the offender’s driver license and that the offender should make arrangements for transportation at any proceeding in which the court may take such action. Failure to provide such notice does not affect the court’s suspension or revocation of the offender’s driver license.
See 316.193 F.S.
BAC less than 0.15%
•fines ranging from $500 – $1000;
•at least 50 hours community service (may be converted to a fine);
•up to six months jail;
•possible vehicle impoundment / immobilization for 10 days;
•Florida license revocation ranging from 180 days to one year.
BAC 0.15 % or higher OR child in car
•fines ranging from $1000 – $2000;
•up to nine months Florida jail time;
•Florida license revocation of 180 days to one year.
BAC less than 0.15%
(misdemeanor) •fines ranging from $1000 – $2000;
•up to nine months jail;
•possible vehicle impoundment / immobilization for 30 days if 2nd conviction within five years;
•Florida license revocation of 180 days to one year; however, if 2nd conviction within five years, then five year revocation (at least one year wait for hardship).
BAC 0.15 % or higher OR child in car
(misdemeanor) •fines ranging from $2000 – $4000;
•up to 12 months jail (if 2nd conviction within last five years, minimum 10 days jail);
•Florida license revocation of 180 days to one year; however, if 2nd conviction within five years, then five year revocation (at least one year wait for hardship license).
(misdemeanor) •fines ranging from $2000 – $5000;
•up to 12 months jail time;
•possible vehicle impoundment (length varies depending on age of prior convictions);
•license revocation of 180 days to one year; however, if one of the two prior conviction is within five years, then five year Florida license revocation (at least one year wait for hardship license).
(third conviction within 10 years)
(felony) •up to $5000 fine;
•up to five years prison (if 3rd conviction within the last 10 years, minimum 30 days jail);
•possible vehicle impoundment / immobilization for 90 days if 3rd conviction within 10 years;
•ten year Florida license revocation (at least two year wait for hardship license).
FOURTH OR GREATER DUI
(felony) •fine of at least $2000;
•up to five years prison time;
•permanent Florida license revocation with no hardship license possible.
Will I be able to plea bargain / negotiate my Florida DUI charge down to a lesser type offense?
Possibly. Plea bargaining is an area that any experienced Florida DUI attorney would discuss with the prosecutor on the client’s behalf. However, Florida courts are prohibited from withholding adjudication in DUI cases or from reducing a DUI charge if the your blood alcohol content (BAC) is 0.15 percent or greater. Also see below for information on the Brevard County First time DUI Offender program for additional details.
Will a Florida DUI conviction go on “my record?”
Yes. A DUI conviction will go on your Florida driving record. A Florida DUI will stay on your driving record essentially forever.
Just how much jail / prison time will I have to do if I am convicted of a DUI offense in the State of Florida?
The amount of incarceration (jail or prison) received from a Florida DUI conviction will depend on a number of factors, including (but not limited to) the following:
• your prior driving record especially your DUI / DWI history (in Florida or elsewhere);
• your level of intoxication / BAC (breath / blood alcohol content especially 0.15 % or greater);
• whether there was a crash / accident involved;
• whether there was bodily injury to another person in the collision;
• which Florida county or city / municipal court your case is in;
• what judge you are sentenced by;
• whether there was a passenger especially a child passenger in your car.
I was involved in a collision along with my DUI. What do I need to know?
Avoiding a Leaving the Scene of an Accident (Hit and Run) Charge. Whenever an operator is involved in an accident in Florida, several obligations arise. Under Florida law, the driver of any vehicle involved in a crash resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall provide the driver’s name, address, and the registration number of the vehicle he or she is driving. Further the driver must upon request and if available exhibit the driver’s license or permit to drive, to any person injured in such crash or to the driver or occupant of or person attending any vehicle or other property damaged in the crash. The driver must also assist any injured persons in physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary, or if such carrying is requested by the injured person. See Florida Statute 316.061.
Failure to comply with the above when a person is injured or killed is a felony crime and can result in prison time and a license revocation. Leaving the scene of an accident involving death or injury while also committing a DUI can result in a minimum two-year prison sentence. See Florida Statutes 316.027.
Failure to comply when only property is damaged is a misdemeanor crime.
Requirement to Notify / Complete a Traffic Crash (Accident) Report. The driver of a vehicle in the State of Florida involved in a crash resulting in injury or death of any persons or damage to any vehicle or other property in an amount of $500 or more must immediately give notice of the crash to the local law enforcement department; however, if the crash involves damage less than $500, no injuries, the vehicles did not need a wrecker, and the crash did not involve an intoxicated or “hit and run” driver, the driver may download and complete a report for insurance purposes.
Will I be placed on probation if I’m convicted of a Florida DUI charge?
Yes. If you’re convicted of a DUI in Florida you will be placed on probation for a period of time and ordered to comply with a number of conditions including obtaining an alcohol / drug screening and completing treatment. Typically, probation conditions will include the following:
•Report to the probation department as directed.
•Permit such probation officers to visit your home or elsewhere.
•Find and maintain suitable employment if able.
•Remain within a specified place.
•Pay any fines, fees and other court ordered obligations including restitution.
•Support your dependents to the best of your ability.
•Not associate with persons engaged in criminal activities.
•Submit to random body substance testing as directed by the probation officer or the staff of the treatment center where you are receiving treatment.
•Don’t possess, carry, or own any firearm.
•Don’t use intoxicants or possess any controlled substances unless prescribed by a licensed physician.
•Don’t knowingly visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.
•Submit to a DNA blood draw when ordered.
I am licensed to drive in a state other than Florida and I was cited for a DUI in Florida. Will my driver license be suspended?
Florida only has the authority to suspend your right to drive in the State of Florida. However, Florida and 44 other states and the District of Columbia have adopted an agreement known as the “Driver License Compact.” Florida will report a Florida DUI conviction to the home state of the driver (assuming the home state has also adopted the Compact). Your own state will then generally take action to suspend your license.
This also works in reverse. If you are a Florida licensed driver and you are convicted of a DUI charge in another state, Florida will likely suspend your license if it learns of the out of state DUI conviction. The state where you received the DUI charge will generally notify Florida once you’re convicted.
Will I have to install an Ignition Interlock Device on my car?
An ignition interlock device (IID) is a breath alcohol measurement device that is connected to a motor vehicle ignition. In order to start the motor vehicle, a driver must blow a breath sample into the device which then measures alcohol concentration. If the alcohol concentration exceeds 0.05 percent on the interlock device, the vehicle will not start. The table below shows generally when an ignition interlock device may be required in a vehicle under the Florida DUI ignition interlock program. There are costs associated with installation and monthly monitoring of the IID.
FLORIDA DUI CONVICTION IGNITIION INTERLOCK REQUIREMENT
1st Florida DUI not required; court discretion
1st Florida DUI and BAC is 0.15 % or above or child in car: at least six months
2nd Florida DUI: at least one year
2nd Florida DUI and BAC is 0.15 % or above or child in car: at least two years
3rd Florida DUI: at least two years
What will a DUI charge do to my insurability?
If your insurance company finds out about a Florida DUI one of two things are likely to happen. Either your Florida insurer will raise your rates or your insurance may be cancelled or non-renewed. Your insurance company will learn about your DUI if you have to file an FR-44.
What is an FR-44 / Financial Responsibility Insurance?
An FR-44 is a form from a Florida licensed insurance company certifying that you have purchased liability insurance that meets the required coverage amounts. The FR-44 provides proof to the Florida FLHSMV that you are insured. If you cancel your insurance or the insurance company cancels your policy before your suspension period is over, the company must notify the State of Florida that the insurance is canceled.
If you’re convicted of a Florida DUI charge you will be required to file and maintain an FR-44.
FR-44 financial responsibility certification replaces the old SR-22 requirement for Florida DUI convictions. [Most other states require an SR-22 filing.] FR-44 liability insurance coverage limits are double the old SR-22 insurance coverage limits.
Are there any concerns for licensed pilots who get a DUI offense in the State of Florida?
Yes. The Federal Aviation Administration (FAA) has special required reporting requirements for Florida DUI convictions and administrative (implied consent) license suspensions.
Are there any concerns for mariners licensed by the United States Coast Guard who get a DUI?
Yes. An applicant for a Coast Guard credential must disclose all criminal convictions (including Florida DUI convictions) on their application form. In addition, the Regional Exam Center (REC) performs a National Driver Register check on applicants. Once a DUI conviction is identified, the REC evaluates the applicant’s conviction and associated facts.
I missed my court date. What should I do now?
Failing to appear (FTA) for a Florida court appearance is to be avoided. When you miss a court hearing, bad things follow. At a minimum, the Florida court typically issues a warrant for your arrest (commonly known as a bench warrant). Talk to an attorney as soon as possible. Sometimes, your only option is to turn yourself in on the outstanding warrant. A new court date will then be scheduled.
What happens if I was on probation when I got arrested for my Florida DUI?
Committing a new offense while you’re on probation for a previous offense creates two problems. First, you face the new Florida DUI charge. Second, you face a probation violation hearing for failing to obey all laws (a standard condition of probation). The most serious scenario is when you receive a new Florida DUI offense when you’re already on probation for a previous DUI offense. When this happens, it is in your best interest to speak to a Florida DUI lawyer as soon as possible.
I’m not a United States citizen. Will a DUI conviction result in my removal from this country?
Probably not. Typical, Florida DUI offenses (no priors; no injuries) are not considered crimes of moral turpitude or aggravated felonies resulting in removal. It is important to consult an experienced immigration lawyer about your situation just as you should consult with an experienced Florida criminal defense lawyer about your pending DUI offense.
Keep two points in mind. First, it is very important to answer honestly all questions about prior arrests / convictions on immigration and Visa applications and forms. Lying on these forms is often considered more serious than any DUI conviction. Second, non-citizens should take extra care not to drive on a suspended or revoked drivers’ license.
Can I represent myself in court on my Florida DUI and / or other criminal offense(s)?
Yes. You have an absolute right to represent yourself on any Florida criminal charge no matter how serious the offense is including a Florida DUI offense. Keep in mind that DUI defense is a complicated area of the law as shown by the information above. If you cannot afford to hire your own counsel, you definitely should apply for court appointed counsel to represent you. You have no right to court appointed counsel at the implied consent license hearing.
SHORT ANSWERS TO FREQUENTLY ASKED FLORIDA DUI QUESTIONS
Q. Can I get a Florida driver license if I had a DUI 20 years ago?
A. If your license is no longer suspended or revoked for any reason in any state, you may get a new license. It is highly unlikely that you’re still suspended from a 20 year old DUI. Contact the Florida Department of Highway Safety and Motor Vehicles to learn whether you’re eligible for reinstatement or a new license.
Q. I got a DWI in North Carolina, and I am moving to Florida. Will I be able to get a hardship license in Florida?
A. No. In order to be eligible for a hardship reinstatement, you must first have had a valid Florida driver license.
Q. What happens if you violate your probation for a Florida DUI charge?
A. You will likely have a probation violation hearing before the court. The court may do anything from continuing your probation with a small sanction to revoking your probation and sentencing you to a lengthy jail sentence. Your sanction (sentence) will depend on your history and the severity of your violation(s).
Q. Will Georgia find out about my Florida DUI?
A. If you’re licensed in Georgia and you’re convicted of the DUI charge in Florida, Georgia will almost certainly find out about the conviction though it may take several weeks.
Q. I only had one drink, and I felt fine, how can I be charged with DUI?
A. Police need to have reasonable suspicion that you are impaired in order to detain you and conduct a DUI investigation. If after the investigation they believe that there is probable cause that your normal faculties are impaired, they can lawfully make an arrest. Normal faculties are the ability to walk, talk, see, hear, respond to emergencies, and otherwise perform the normal daily tasks of life. In many instances, the mere odor of alcohol can trigger a DUI investigation. If that is coupled with any other indicator i.e., a traffic violation, a misstep in performing sobriety exercises, or an admission to drinking, it may be enough for an officer to make an arrest. Keep in mind, an arrest is not a conviction and the standard of proof at trial is much higher. Speak to an experienced DUI attorney to find out information related to the specific facts of your case.
Florida Statutes Section 316.193 sets forth the crime of driving under the influence as well as penalties. The statute is paraphrased below. Always consult a lawyer for legal advice about how the law applies to your situation.
HOW THE CRIME OF DUI IS COMMITTED
(1) You are guilty of the offense of DUI and are subject to punishment as provided in subsection (2) if you are driving or in actual physical control of a vehicle within the State of Florida and:
(a) You are under the influence of alcoholic beverages, an inhalant, or any controlled substance, when affected to the extent that your normal faculties are impaired;
(b) You have a blood-alcohol level of 0.08 % or more; or
(c) You have a breath-alcohol level of 0.08 % or more.
FINES; JAIL TIME; IGNITION INTERLOCK DEVICE
(2)(a) Except as provided below any person who is convicted of a Florida DUI shall be punished:
1. By a fine of:
a. Between $250 and $500 for a first conviction.
b. Between $500 and $1,000 for a second conviction; and
2. By jail time for:
a. Up to six months for a first conviction.
b. Up to nine months for a second conviction.
3. For a second conviction, by mandatory placement for a period of at least 1 year, at your sole expense, of an ignition interlock device upon all vehicles that are leased or owned and operated by you when you qualify for a permanent or restricted license.
(b)1. Anyone who is convicted of a third DUI for an offense that occurs within 10 years after a prior DUI conviction commits a felony of the third degree. In addition, the court shall order the mandatory placement for a period of not less than two years, at your sole expense, of an ignition interlock device upon all vehicles that are leased or owned and operated by you when you qualify for a permanent or restricted license.
2. Anyone who is convicted of a third DUI for an offense that occurs more than 10 years after the date of a prior DUI conviction shall be punished by a fine of betwen $1,000 and $2,500 and by imprisonment for up to 12 months. In addition, the court shall order the mandatory placement for a period of at least 2 years, at your sole expense, of an ignition interlock device upon all vehicles that are leased or owned and operated by you when you qualify for a permanent or restricted license.
3. Anyone who is convicted of a fourth or subsequent Florida DUI, regardless of when any prior conviction for a violation of this section occurred, commits a felony of the third degree. However, the fine imposed for a fourth or subsequent DUI must be at least $1,000.
DUI WITH ACCIDENT INVOLVING PROPERTY DAMAGE OR INJURY OR DEATH
(a) Who commits a DUI; and
(c) Who, while operating a vehicle under the influence, causes or contributes to causing:
1. Damage to the property or person of another commits a misdemeanor of the first degree.
2. Serious bodily injury to another commits a felony of the third degree.
3. The death of any human being or unborn quick child commits DUI manslaughter, and commits:
a. A felony of the second degree.
b. A felony of the first degree, if:
(I) At the time of the crash, the person knew, or should have known, that the crash occurred; and
(II) You failed to give information and render aid as required by Florida law.
Anyone who is convicted of DUI manslaughter shall be sentenced to a mandatory minimum term of 4 years prison.
DUI PENALTIES WITH A HIGH BAC OR CHILD IN CAR
(4) Anyone who is convicted of a Florida DUI and who has a BAC of 0.20 % or higher, or anyone who is convicted of a violation of a DUI and who at the time of the offense was accompanied in the vehicle by a child under the age of 18 years, shall be punished:
(a) By a fine of:
1. Between $500 and $1,000 for a first conviction.
2. Between $1,000 and $2,000 for a second conviction.
3. At least $2,000 for a third or subsequent conviction.
(b) By jail time for:
1. Up to 9 months for a first conviction.
2. Up to 12 months for a second conviction.
(c) In addition to the penalties above, the court shall order the mandatory placement of an ignition interlock device upon all vehicles that are leased or owned and routinely operated by you for up to 6 months for the first offense and for at least two years for a second offense, when you qualify for a permanent or restricted license.
PROBATION AND TREATMENT REQUIRED
(5) The court shall place all persons convicted of a DUI on monthly reporting probation and shall require completion of a substance abuse course conducted by a DUI program.
ADDITIONAL MINIMUM PENALTIES: JAIL TIME; COMMUNITY SERVICE; AND VEHICLE IMPOUNDMENT
(6) With respect to any person convicted of a violation of subsection (1), regardless of any penalty imposed pursuant to subsection (2), subsection (3), or subsection (4):
(a) For the first conviction, the court shall place the defendant on probation for a period not to exceed one year and, as a condition of such probation, shall order the defendant to participate in public service or a community work project for a minimum of 50 hours; or the court may order instead, that any defendant pay an additional fine of $10 for each hour of public service or community work otherwise required, if, after consideration of the residence or location of the defendant at the time public service or community work is required, payment of the fine is in the best interests of the state. However, the total period of probation and incarceration may not exceed 1 year. The court must also, as a condition of probation, order the impoundment or immobilization of the vehicle that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant’s name at the time of impoundment or immobilization, for a period of 10 days or for the unexpired term of any lease or rental agreement that expires within 10 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or paragraph (h).
(b) For the second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 10 days. The court must also, as a condition of probation, order the impoundment or immobilization of all vehicles owned by the defendant at the time of impoundment or immobilization, for a period of 30 days or for the unexpired term of any lease or rental agreement that expires within 30 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant and must occur concurrently with the driver’s license revocation imposed. The impoundment or immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or paragraph (h). At least 48 hours of confinement must be consecutive.
(c) For the third or subsequent conviction for an offense that occurs within a period of 10 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 30 days. The court must also, as a condition of probation, order the impoundment or immobilization of all vehicles owned by the defendant at the time of impoundment or immobilization, for a period of 90 days or for the unexpired term of any lease or rental agreement that expires within 90 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant and must occur concurrently with the driver’s license revocation. The impoundment or immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or paragraph (h). At least 48 hours of confinement must be consecutive.
(d) The court must at the time of sentencing the defendant issue an order for the impoundment or immobilization of a vehicle. Within 7 business days after the date that the court issues the order of impoundment or immobilization, the clerk of the court must send notice by certified mail, return receipt requested, to the registered owner of each vehicle, if the registered owner is a person other than the defendant, and to each person of record claiming a lien against the vehicle.
EXCEPTIONS TO IMPOUNDMENT / IMMOBILIZATION
(g) The court shall dismiss the order of impoundment or immobilization of the vehicle if the court finds that the family of the owner of the vehicle has no other private or public means of transportation.
(h) The court may also dismiss the order of impoundment or immobilization of any vehicles that are owned by the defendant but that are operated solely by the employees of the defendant or any business owned by the defendant.
(k) In the court’s discretion, you may be required to serve all or any portion of a term of imprisonment to which the defendant has been sentenced pursuant to this section in a residential alcoholism treatment program or a residential drug abuse treatment program. Any time spent in such a program must be credited by the court toward the term of imprisonment.
DELAY IN RELEASE FROM CUSTODY IMMEDIATELY AFTER A DUI ARREST
(9) If you’re arrested for a Florida DUI, you may not be released from custody:
(a) Until you are no longer under the influence and affected to the extent that his or her normal faculties are impaired;
(b) Until your blood-alcohol level or breath-alcohol level is less than 0.05 percent; or
(c) Until 8 hours have elapsed from the time the you were arrested. *This is the standard procedure; it is unlikely that you would be administered additional breath or field sobriety testing. You will likely be booked and taken to the County Jail to either post bond or see the Judge at your first appearance.
DUI FIRST TIME OFFENDER PROGRAM FOR BREVARD COUNTY
Beginning in the fall of last year, the State Attorney’s Office announced they would offer first time offenders entry into a program that allows them to avoid a conviction for DUI if certain conditions are met. The criteria is listed below for reference:
If your eligibility for this program is approved by the Office of the State Attorney, you will be required to perform three pre-conditions (and stay “crime-free”) within a two-month time frame in order to obtain a State approved plea to Reckless Driving.
The three pre-conditions are:
1. Successful performance of 20 community service hours;
2. Proof of enrollment or successful completion of the DUI School;
3. Proof of enrollment or successful completion of the Victim Impact Panel or YouImpact Online
If you successfully complete ALL pre-conditions of our program within the specified time frame, the State of Florida will offer the following resolution of your criminal case (with the completed conditions being credited towards probation):
• Plea of guilty to Reckless Driving (adjudication will be withheld) Yes, this means that the state will AMEND your DUI charge to reckless driving.
• Probation for either an 6-month or 9-month period, with conditions based on “Tier” level assigned
This plea resolution must be entered at the Arraignment stage or 1st Docket Sounding stage of the case at one of the courthouses (Viera, Titusville, or Melbourne). This plea resolution must also be entered prior to the litigation of any pretrial motions.
Upon successful completion of probation, you will not receive any points against your license. However, if you fail to successfully complete probation, you could be found guilty of a probation violation, which carries a penalty of up to 90 days in jail and up to a $500 fine.
PROGRAM ELIGIBILITY CRITERIA*
• No cases involving Defendant breath samples over the 0.2500 B.A.C. mark
• No cases involving accidents
• No cases involving minor children / animals in Defendant’s vehicle
• No cases involving Defendants with prior commission(s) of similar offenses
• No cases involving Defendants who have received prior formal diversion programs for
alcohol-related driving offenses.
• No cases involving Defendants who have served prior prison sentences
• No cases where Defendants did not have valid driver’s licenses at time of offense
• No cases where there are accompanying felony/misdemeanor charges with D.U.I. arrest. This means if you are charged with DUI AND any other criminal offense then you have no eligibility for the program.
*NOTE: ALL CASES are evaluated on an individual, fact-specific basis,
notwithstanding the above criteria. A defendant’s eligibility is determined at the sole discretion of the State Attorney’s Office, and may be based on relevant factors not mentioned above.