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Florida DUI Laws

There are quite a few varieties of Driving Under the Influence (DUI) charges in Florida.

On one end of the spectrum, there is a first time offender Florida DUI charge.

This is the case where somebody was driving maybe a little too fast or too slow. They were weaving a little too much.

An officer pulled the driver over and smelled alcohol. The officer then asked the driver to get out of the car to do some field sobriety exercises.

The officer found probable cause and placed the driver under arrest. The officer took the driver back to the police station where the driver either blew into a breath test machine or refused to do so. And the story goes on from there.

But, on the other end of the spectrum, there is the case where a driver drove drunk and ultimately killed another human being.

In between these two extremes, there is an entire spectrum of DUI cases that each lend themselves to different penalties and different defense strategies from the DUI defense attorney.

We go over them below:

A Plain Old First Time Florida DUI Charge

The first-time DUI, without any enhancements, occurs when a person has driven under the influence of alcohol or another controlled substance to the extent that their normal faculties are impaired.

Normal faculties include a person’s ability to walk, talk, judge distances, and otherwise just do normal things.

A plain old first time regular DUI comes in two forms:

  1. A person has blown into the breath test and registered a result somewhere between zero and .14.
  2. A person has refused to blow into the breath test machine at all.

The first time DUI does not have any enhanced penalties associated with it.

The first time DUI penalties are the minimum penalties that we will see for a DUI conviction. We read extensively about these penalties here.

To read more about how we defend a plain old first time DUI read here.

Driving While Impaired and Blowing Above a .15

This is the most common enhancement we see in our Florida DUI cases. Our client chooses to blow into the breath test machine, and they register a breath test result over a .15.

Remember, Florida makes it a crime to drive a vehicle and have a blood or breath alcohol level above the .08.

And we know that the most common way police officers measure alcohol level in drivers is through their breath.

If a .08 blood or breath alcohol level is enough to get you convicted of a DUI, it’s no surprise that the law will want to punish you even worse if you blow almost twice the legal limit.

In Florida, our law gives enhanced DUI penalties for any person or driver who blows over a .15.

Enhanced Penalties if You Blow Above a .15

The enhanced penalties for blowing over a .15 will vary based on whether it is the driver’s first, second, or third DUI offense.

For a first time DUI offense with a breath test result above a .15, the court is required to order an ignition interlock device to be placed on the vehicle for at least six months (and up to an entire year).

This ignition interlock device needs to be installed on our client’s main vehicle and on all vehicles that he or she owns and routinely operates.

These ignition interlock devices are not cheap. You’ll have to pay an installation fee at an authorized service center. You’ll also have to pay a monthly maintenance fee when you take your vehicle to get tested at the authorized service center.

While you don’t necessarily have to have one on a work vehicle, you will be required to notify your employer of your DUI and get a written letter of permission that the employer is okay with you driving a work vehicle without the ignition device.

Not only are the ignition interlocks expensive, but they can be a pain. Any breath alcohol level that is registered by the machine that is above a .025 will result in the vehicle being locked out for four hours.

We know that mouth wash can cause false positives!

How an Attorney Defends a Florida DUI Charge Above a .15

In many ways, a DUI attorney defends a drunk driving case with the breath test result above a.15 the same as an attorney would defend the case if the breath test result were below .15.

However there are a couple of key differences:

  1. Prosecutors, judges, and juries don’t like higher results. It’s just common sense that the farther away you move from a .08 the more likely prosecutors, judges, and juries are going to assume that the driver was really drunk.
  2. With that said, your DUI attorney will be on the lookout for discrepancies between your breath test result and video evidence. One such discrepancy could be that the driver blew really high on the breath test but in the videotape, the driver does not appear to be impaired. It’s the old saying “who are you going to believe the breath test machine or your lying eyes”. To a judge, or jury, someone with a really, really high breath test result should look really drunk on video. This inconsistency in the evidence can open the door to a unique defense.
  3. In certain cases, it can be a win to get a DUI resolution but without the .15 enhancement. Especially if an ignition interlock is going to screw with a client’s job.

There are two ways that a DUI defense lawyer can remove the .15 enhanced penalties when somebody has been initially charged with a .15 DUI. One way is to get the judge to make a finding after hearing that the enhancement should go away. The other way is to get the state attorney to agree and stipulate on the record that a .15 enhancement is not appropriate in a particular case.

Of course, an attorney can still defend a DUI with a .15 result much like any other DUI with the breath test result.

If the DUI lawyer can get the breath test result thrown out of court, then it doesn’t matter whether the breath test result came in at a .08 or a .38.

If evidence is thrown out of court, then the evidence cannot be shown to the judge or the jury. And if the evidence can’t be shown, then it is as if it does not exist!

And even when the lawyer can’t remove the evidence entirely he or she can still question the credibility of the evidence.

In the day and age of high tech, the old school funky technology used in breath test machines is increasingly suspect to a wise juror. And of course common sense dictates that a breath test result to determine the amount of alcohol in blood just doesn’t make a ton of sense. Why wouldn’t the officer just take a blood test when the driver was arrested?

Driving While Impaired and Causing Property Damage or Non-serious Injury

Florida law has also decided to enhance penalties when a driver causes property damage and injuries.

The most common additional penalty that goes along with causing property damage is the requirement of paying for the damage caused to another’s vehicle.  This is called restitution in criminal law circles. Above and beyond everything else that the driver is paying for, the driver will also need to pay a fair value for the damage caused to property.

Likewise, in cases of non-serious injury, the driver accused of DUI should expect to pay for any additional hospital bills or medical bills resulting from the accident.

Jail time is another potential penalty in property damage DUI cases. The judge has the ability to send the driver, even on a first-time DUI to jail for up to a year. In a normal first time DUI cases, the maximum jail sentence is only 180 days

How a DUI Attorney Defends DUI’s Causing Property Damage or Non-serious Injury

Although driving while impaired and causing property damage or nonserious injury has more enhanced penalties than a regular DUI charge, it also opens up unique defense opportunities for the DUI attorney.

For example, DUIs for property damage are almost always of the result of an auto accident.

Auto accidents are unique, because Florida recognizes a statutory privilege for communicating with cops about auto accidents.

The idea is that we want people to freely chat with the cops about what caused the auto accident to happen.

We called this privilege the “accident report privilege”.

In certain cases , this auto accident report privilege can lead to the suppression of some of the evidence that was gathered by the officers on scene. This can include evidence of who was driving the accident vehicle, statements made by the driver after the accident, as well as physical evidence that may have been seized by the officers after the accident

Driving While Impaired and Under 21

Driving while impaired and under 21 is commonly referred to as underage DUI.

Underage DUI results in enhanced penalties. Now, these penalties are not criminal in nature but rather administrative.

These are penalties that hurt the ability of the under 21-year-old to drive.

Administrative Penalties for a Under 21 DUI

If a driver who is 21 years old or younger blows into the breath test machine and gets a sample reading of .02 or higher, that person is looking at a six month driver license suspension for a first-time DUI arrest.

This suspension is twice the time of an administrative suspension that would be given to a driver over 21.

If the driver is under 21 and refuses to blow into the breath test machine or provide a urine or blood sample, then the administrative suspension is for one year. That person cannot drive for any reason. Again, this is a suspension that is twice as long as normal for drivers over 21.

The interesting thing here is that an underage driver is getting administrative suspension even if they are not technically breaking the law.

Assuming that this driver doesn’t have any urinalysis results showing drugs in the system, even if he blew a .025 on the breath test, this driver can have a really good case for their DUI attorney to work with.

After all, it is a crime to be .08 or higher. Not .025.

Yet, Florida has decided that if the driver is under 21, they are going to penalize them, at least administratively, for blowing even a minuscule amount.

If you remember the discussion above on ignition interlock, you remember that mouth wash prior to blowing into the breath test machine can result in a .025. This is not much alcohol were talking about here!

How a DUI Attorney Defends an Underage Florida DUI Charge

While we spend a good deal of time on the site discussing technical defenses, underage DUIs often lend themselves to emotional defenses for the DUI attorney.

Specifically, when you have a kid who is under 21, there is a strong desire to not ruin their life. So depending on how well the kid acted at the scene with the officer, how respectful the kid was, and how well the kid is taking care of everything else in their life, these emotional trigger points can be helpful for the DUI attorney in negotiations with the state.

Now, a college student who is going to be a Rhodes Scholar and volunteers every week at the soup kitchen is still going to have a hard time if they blew three times the legal limit and crashed a car.

But in those close cases where the ability to get the charge reduced to reckless driving or outright dismissed is very close, this sort of emotional facts can be just what the defense attorney needs to get the feel that the underage DUI driver must have.

Boating While Drinking

Surprisingly, boating while drinking (BUI), is penalized almost as severely as a regular DUI.

Furthermore, for purposes of enhancement, should a driver pick up another DUI down the road, a boating while drinking will count as a previous DUI.

Boating in a marine environment can also complicate the defenses for the DUI attorney because certain fourth amendment defenses (such as illegal traffic stop defenses) don’t necessarily apply to a boater on the water.

If you’re a boater, then you know that in most cases the cops have the ability to pull right up to you and hop on your boat to make sure that you have the right flares and other devices that you’re supposed to have.

Elements of a BUI Charge:

Just like it’s illegal to drive and drink, it’s also illegal to consume alcohol and operate a boat.

However, it is illegal to operate a boat while under the influence of alcohol or drugs to the extent that your normal faculties are impaired.

For an adult who’s over 21 in Florida, a BUI arrest can happen when blood alcohol concentration is over .08 or the officer suspects that a person’s normal faculties are impaired because of alcohol or drugs.

It’s even tougher on kids under 21: in Florida a person under the age of 21 who operates a boat  with blood alcohol content of .02 or above can be arrested for DUI.

While we often see boating under the influence charges come from Coast Guard officers that are patrolling in Tampa Bay or the Gulf Coast off Pinellas County, we are increasingly seeing arrests come from the Sheriff’s officers utilizing water vehicles.

How Lawyers Defend BUI Charges

DUI lawyers defend boating under the influence charges in exactly the same manner that they defend driving under the influence charges.

While we previously mentioned that there are often less avenues to attack BUI charges than DUI charges, we also have the added benefit of not observing bad driving patterns in boating under the influence case.

For example, many DUI cases involve a cop observing a driver weaving inside or outside their lane.

As you can imagine, this sort of impaired driving pattern doesn’t really lend itself to much to somebody boating under the influence.

Riding a Bicycle While Drinking

Without spending too much time on the topic, recognize that in Florida, a bicycle is actually considered a vehicle for purposes of the driving under the influence statute.

That means that you can get a DUI while driving a bicycle, or scooter, or moped.

The DUI statute as it defines a motor vehicle is intentionally open and liberal.

DUI Resulting in Serious Injury

It should come as no surprise that driving under the influence and causing serious bodily injury to another person can lead to seriously enhanced penalties.

In Florida, to prove the crime of DUI causing serious bodily injury, the prosecutors, of course, need to prove the crime of DUI.

But they also need to prove that there is serious bodily injury suffered by an individual or victim.

Finally, they have to prove beyond a reasonable doubt that the drunk driver caused or contributed to causing serious bodily injury.

Definition of Serious Bodily Injury

Florida law defines exactly what serious bodily injury is.

Remember that any bodily injury at all results in an enhancement to the normal penalties of DUI.

But, if the injury goes above that threshold and becomes a serious bodily injury, the penalties get much much more severe.

Under Florida law, serious bodily injury means an injury to any person, including the driver, which creates any of the following conditions:

  • A substantial risk of death
  • A substantial risk of serious personal disfigurement
  • A substantial risk of protracted loss or impairment of the function of any bodily member or organ.

Just as you may have guessed, serious bodily injury is injury that is… Serious.

But as you may not have guessed, you can be charged with this enhanced DUI for serious bodily injury even if the only person you hurt is yourself.

Enhanced Penalties for Serious Bodily Injury DUI’s

The enhanced penalties for causing serious bodily injury as a result of drunk driving are indeed severe.

While a normal DUI is only a misdemeanor, a DUI with serious bodily injury is a felony.

Instead of looking at County jail, a person convicted of serious bodily injury DUI could go to prison for up to five years.

The fines are enhanced as well. Instead of looking at the $1,000 fine, a person convicted of a serious bodily injury DUI can face a $5000 fine.

Not surprisingly, serious bodily injury can mean that somebody has substantial medical bills that need to get paid.

Prosecutors often seek to get restitution for the medical bills paid for the person(s) injured as a result of the DUI.

How a Defense Attorney Defends a Serious Bodily Injury DUI

Not surprisingly, a DUI defense attorney often attempts to get the felony serious bodily injury DUI reduced down to a regular DUI.

This means that substantial litigation and time will be focused on the issue of whether or not the state can prove that the bodily injury in and of itself was indeed serious.

There is actually a line of cases that discusses when bodily injury is serious and when it’s not.

Driving While Impaired Resulting in Death

Perhaps the most horrible DUI to deal with are those that the result death of another individual.

According to the National Highway Traffic Safety Administration, 10,265 people were killed in drunk driving crashes involving a driver who had an illegal blood alcohol content of .08 or greater in 2015 alone.

Because of this, the state of Florida has greatly enhanced the penalties associated with killing somebody as a result of the DUI.

Defending someone driving while impaired resulting in death can be complex and time-consuming because of the penalties associated with conviction for a DUI manslaughter.

For a person convicted of causing the death of another while driving drunk, the penalties can be life-changing if not life-ending.

If convicted of DUI manslaughter in Florida a judge is required to impose 124.5 months in prison.

That’s a minimum requirement. The judge can always impose more prison, up to 15 years, and of course a substantial fine along with permanent driver’s license revocation.

Defending a DUI With Death

In defending a DUI where someone has died, the defense attorney will use all of the normal DUI defenses that we discussed before.

After all, if the person who caused the accident wasn’t actually guilty of a DUI, then the state of Florida cannot prove the DUI portion of the DUI with debt charge.

But another issue that becomes relevant with the DUI where somebody has died is whether or not there was careless driving by the defendant.

The state attorney doesn’t have to prove that the death of the victim was caused by the drunk driving of the defendant.

But the state attorney does have to prove that the person accused of drunk driving did deviate in some manner from regular good driving.

That means an accident reconstruction expert can be vital to the defense.

Driving While Impaired- a Second Time Within Five Years

Florida has decided to penalize drivers harsher when they get arrested a second time within five years of a prior DUI conviction.

The biggest difference is that a person convicted of a second DUI offense within five years of a previous DUI conviction is looking at jail time.

The law requires a minimum of 10 days in jail. Technically the law requires up to nine months in jail, but we only rarely see such harsh penalties for an otherwise regular second DUI within five years of previous conviction.

The fine is also enhanced. And a person convicted of a second DUI within five years is looking at a minimum five yea driver’s license revocation.

How A DUI Attorney Defends against a Second DUI Conviction in Five Years

Defending someone facing a second DUI charge does lend itself to some additional unique defenses.

Specifically, the state attorney has the burden of proving not only the new DUI charge but also proving up the prior conviction.

That means that a DUI attorney tends to attack the original DUI conviction even if that DUI conviction was in another county or state.

There is also a unique area where the person convicted of a first DUI needs to have been represented by counsel at the time of pleading to that DUI.

In certain cases if that person was not represented by counsel at the time of the original DUI defense, then the DUI attorney can move the court to dismiss the enhanced penalty and in effect turn the second DUI with five years into a first-time DUI.

Driving While Impaired a Third Time Within 10 Years of a Previous Conviction

Much like a second DUI within five years of the previous DUI, a third time DUI within 10 years of a previous conviction carries even more enhanced penalties.

Specifically jail time.

A person convicted of a third DUI within 10 years of two prior DUIs is looking at a minimum of 30 days in jail.

And if you’re being charged for the third DUI in 10 years, then the state attorney is going to enhance it into a felony.

That means that your maximum time in jail is no longer a year in County. Your maximum time in jail is five years in prison.

A third DUI within 10 years of a prior conviction also requires an ignition interlock device to be placed on all vehicles owned used were routinely operated for at least two years.

 

Beware The Negative Impact of Florida DUI Penalties

A DUI Conviction carries some pretty tough penalties.

Judges don’t pull these out of thin air. Rather, lawmakers have put certain minimum penalties on the books.

If the Judge does not give the minimum penalties below, then he or she is violating the law. That’s why looking for alternative resolutions to a DUI conviction is so important.

Overview of Florida DUI Penalties 

Pleading guilty or no contest to a DUI in Florida has mandatory minimum penalties that must be imposed by the court.

Note that these are minimums for a Florida DUI conviction. The court can impose more punishments, including jail, for a DUI.  However, understand that these Florida statutory minimums are required only when convicted of a DUI.

Pleading guilty or no contest to aDUI in Florida has mandatory minimum penalties that must be imposed by the court.

If your attorney negotiates a reduction of the charge from a DUI to reckless driving, then the minimum mandatory penalties do not apply. If the DUI attorney negotiates a dismissal of the case, then the penalties do not apply. Furthermore, should your attorney win the case at trial, then the penalties do not apply.

Below we have listed the possible penalties associated with a DUI conviction in the state of Florida.

Possible Jail Time

A standard first time DUI conviction can result in up to 180 days in the county jail. If the blood alcohol level was over 0.15, or if a minor was in the vehicle at the time of the incident, then the maximum jail time is increased to 270 days.  If there was damage to another person or their property, the maximum jail time is 365 in the county jail.

For a first time DUI in Florida, the prosecution often times does not seek jail time. However, when there is an accident involved, or some other aggravating conduct by the defendant, the prosecutor may seek a term of incarceration as part of the sentence for the DUI.

A second DUI conviction is punishable by up to a year in jail.  A third DUI conviction within ten years of a previous DUI can be a felony if the prosecutor chooses to pursue the case, and is punishable by up to five years in prison.  A fourth or subsequent DUI conviction is also punishable by up to five years in prison.

For a second time DUI conviction in Florida that is within five years of a previous DUI, there is a minimum of 10 days required in the county jail.

A third time DUI within 10 years of a prior DUI conviction in Florida requires a minimum of 30 days in the county jail.

Fines and Court Costs

The fine for a first time DUI in Florida is between $500 and $1,000. If a 0.15 or higher blood alcohol content is obtained, or there is a minor in the car, then the fine is between $1,000 and $2,000.

A second DUI conviction within 5 years of a prior DUI conviction will result in a fine of between $1,000 and $2,000. If there is a 0.15 or higher BAC or a minor in the car, then the fine is between $2,000 and $3,000.

A third DUI conviction or more will result in a fine between $2,000 and $5,000.

Probation and Cost of Supervision

Cost of supervision while on probation is not cheap…

A DUI conviction will often include a probationary term of up to one year for a misdemeanor and five years for a felony.  Cost of supervision while on probation is not cheap; it usually costs 50-60 dollars a month during the probationary period.

The other penalties of the DUI conviction, like the DUI school and the fines, are considered conditions of the probation. If the conditions are not completed while on probation, the probationer can be violated.  If violated, the probationer could face up to the entire term of incarceration that he was facing before he was put on probation.

For a first time DUI, that means violating probation could result in up to 180 days in the county jail.

Ignition Interlock and Impoundment

The ignition interlock is another costly condition of probation that might accompany a DUI conviction. Specifically, a first time DUI conviction with blood alcohol content of over 0.15 will result in a six month ignition interlock requirement.

A second conviction with a BAC exceeding 0.15 requires 24 months of the ignition interlock device. In Pasco, Pinellas, and Hillsborough counties, the device is roughly $200 to install, and has a monthly service fee of between $50 to $100.

Any second or subsequent DUI conviction will result in impoundment of the vehicle, unless doing so would be a hardship to the family of the driver. There are exceptions that may apply if the vehicle is operated for business purposes.

Drivers License Suspension

Even though the Florida DMV has likely already administratively suspended the license after the arrest, a DUI conviction results in a separate and distinct driver’s license suspension. On a first DUI conviction, the court will order a 6 – 12 month license suspension.

A second within 5 years of a prior DUI conviction will result in a five year suspension.

A third DUI within 10 years of any one prior DUI is also a minimum of a five year driver’s license suspension. A third DUI within ten years of convictions for any two prior DUI’s in Florida is a ten year suspension. The fourth conviction is a lifetime Florida license revocation.

The driver is eligible for a hardship license immediately on a first time DUI if the DUI School is complete.

The driver is eligible for a hardship license immediately on a first time DUI if the DUI School is complete.

On a second DUI within 5 years of a prior conviction the driver is eligible for a hardship license after 12 months.

On a third conviction within 10 years of a prior DUI conviction the driver is eligible for a hardship license within 12 months.

On a third within ten years of two previous prior DUI convictions the driver is eligible for a hardship license after 24 months.

On a fourth DUI conviction, no possibility exists for a hardship license.

DUI School

Every conviction will require DUI school. The first conviction will require the level 1 DUI School.

A second or subsequent DUI conviction requires attending a multiple offender school. Any substance abuse treatment deemed appropriate must be completed as a condition of the probation.

You have to pay for all this.

Community Service

Every conviction requires 50 community service hours. These can sometimes be purchased with an additional fine to the court.

Outside of drug trafficking, no criminal charge packs more pain in the pocketbook than a DUI conviction.

From towing your vehicle after your arrest and the final DUI class you will take to the insurance hikes you will suffer, a DUI conviction can easily cost in excess of $20,000.

Fee Breakdown

Initial Costs

If you are reading this site, you likely have already felt the initial costs of a DUI, including:

  • Towing of Your Vehicle
  • “booking fees” (When the arresting agency keeps the  money in your wallet)
  • Cash bonds
  • Security with the Bondsmen

Costs During Prosecution

Of course, the costs can continue during the prosecution, and will likely include:

  • DUI school
  • Taxi fees and transportation fees if your license is suspended administratively
  • Reinstatement fees at the DMV and the BAR

Fees if convicted

If you are convicted however, the heavy fees will get you. These include, but are not limited to:

  • Substance abuse evaluation and treatment
  • Vehicle impound
  • Buying out of community service hours
  • More reinstatement fees
  • court costs
  • fines
  • ignition interlock installation and maintenance
  • FR-44 Insurance

Avoiding the DUI Costs

Your best chance at avoiding these drunk driving fees and costs is to hire an experienced DUI Attorney.

While there are no guarantees, a lawyer may be able to avoid a conviction, thus avoiding many of the nasty mandatory costs and fees listed above.  In many situations, your attorney can pay for himself many times over.

While no attorney can guarantee a given result, you can increase your probability of avoiding conviction with proper representation.

The law requires a Florida Judge to Order impounded or immobilization of the vehicle

What Does Impounding My Vehicle Entail?

Impounding your vehicle means physically storing your vehicle at a storage facility pursuant to Court order.  This is usually done through the Sherriff’s office in most counties. This is an expensive and painful way to fulfill the statutory requirement.

What About Immobilizing My Vehicle?

Generally speaking, immobilizing your vehicle is the least restrictive and most cost effective means of fulfilling your requirement.

In the Tampa Bay area (Hillsborough, Pinellas, and Pasco), you can contract with qualified contractors who will come to your house and put “the club” on your vehicle.  The cost of “the club” is approximately $150 for a ten day impound and $300 for a 30 day impound.

With the club, you can keep your car at your residence without an embarrassing boot on your vehicle.

How Long Will I Have To Immobilize or Impound My Vehicle?

Can I Just Title The Vehicle Over to My Mom?

Signing over the title of your vehicle to Momma will not help you evade impound or immobilization. The statute requiring the impound will follow the vehicle.  In fact, if the vehicle you were driving at the time of your arrest was not owned by you and you don’t have another vehicle to impound, the Judge will order the impound anyways. 

What If This is My Family’s Only Vehicle?

Florida law does provide a major escape clause if your family relies on the vehicle in question for transportation.

If the Court finds that “the family of the owner of the vehicle has no other private means of transportation”, then the Court must dismiss the Order of impoundment or immobilization.

Typically, your DUI lawyer should address this issue at the time of sentencing, although if needed the lawyer can go back to Court by filing a motion to ask the Judge to dismiss the impoundment requirement.

While all Judges are different, the best practice is to have a family member come to Court to provide sworn testimony about your families lack of alternative transportation.  After all, if your family truly relies upon the vehicle in question, then you want to make sure you will win this issue, and leave nothing to chance.[/vc_column_text][/vc_column][/vc_row]

There are quite a few varieties of Driving Under the Influence (DUI) charges in Florida.

On one end of the spectrum, there is a first time offender Florida DUI charge.

This is the case where somebody was driving maybe a little too fast or too slow. They were weaving a little too much.

An officer pulled the driver over and smelled alcohol. The officer then asked the driver to get out of the car to do some field sobriety exercises.

The officer found probable cause and placed the driver under arrest. The officer took the driver back to the police station where the driver either blew into a breath test machine or refused to do so. And the story goes on from there.

But, on the other end of the spectrum, there is the case where a driver drove drunk and ultimately killed another human being.

In between these two extremes, there is an entire spectrum of DUI cases that each lend themselves to different penalties and different defense strategies from the DUI defense attorney.

We go over them below:

A Plain Old First Time Florida DUI Charge

The first-time DUI, without any enhancements, occurs when a person has driven under the influence of alcohol or another controlled substance to the extent that their normal faculties are impaired.

Normal faculties include a person’s ability to walk, talk, judge distances, and otherwise just do normal things.

A plain old first time regular DUI comes in two forms:

  1. A person has blown into the breath test and registered a result somewhere between zero and .14.
  2. A person has refused to blow into the breath test machine at all.

The first time DUI does not have any enhanced penalties associated with it.

The first time DUI penalties are the minimum penalties that we will see for a DUI conviction. We read extensively about these penalties here.

To read more about how we defend a plain old first time DUI read here.

Driving While Impaired and Blowing Above a .15

This is the most common enhancement we see in our Florida DUI cases. Our client chooses to blow into the breath test machine, and they register a breath test result over a .15.

Remember, Florida makes it a crime to drive a vehicle and have a blood or breath alcohol level above the .08.

And we know that the most common way police officers measure alcohol level in drivers is through their breath.

If a .08 blood or breath alcohol level is enough to get you convicted of a DUI, it’s no surprise that the law will want to punish you even worse if you blow almost twice the legal limit.

In Florida, our law gives enhanced DUI penalties for any person or driver who blows over a .15.

Enhanced Penalties if You Blow Above a .15

The enhanced penalties for blowing over a .15 will vary based on whether it is the driver’s first, second, or third DUI offense.

For a first time DUI offense with a breath test result above a .15, the court is required to order an ignition interlock device to be placed on the vehicle for at least six months (and up to an entire year).

This ignition interlock device needs to be installed on our client’s main vehicle and on all vehicles that he or she owns and routinely operates.

These ignition interlock devices are not cheap. You’ll have to pay an installation fee at an authorized service center. You’ll also have to pay a monthly maintenance fee when you take your vehicle to get tested at the authorized service center.

While you don’t necessarily have to have one on a work vehicle, you will be required to notify your employer of your DUI and get a written letter of permission that the employer is okay with you driving a work vehicle without the ignition device.

Not only are the ignition interlocks expensive, but they can be a pain. Any breath alcohol level that is registered by the machine that is above a .025 will result in the vehicle being locked out for four hours.

We know that mouth wash can cause false positives!

How an Attorney Defends a Florida DUI Charge Above a .15

In many ways, a DUI attorney defends a drunk driving case with the breath test result above a.15 the same as an attorney would defend the case if the breath test result were below .15.

However there are a couple of key differences:

  1. Prosecutors, judges, and juries don’t like higher results. It’s just common sense that the farther away you move from a .08 the more likely prosecutors, judges, and juries are going to assume that the driver was really drunk.
  2. With that said, your DUI attorney will be on the lookout for discrepancies between your breath test result and video evidence. One such discrepancy could be that the driver blew really high on the breath test but in the videotape, the driver does not appear to be impaired. It’s the old saying “who are you going to believe the breath test machine or your lying eyes”. To a judge, or jury, someone with a really, really high breath test result should look really drunk on video. This inconsistency in the evidence can open the door to a unique defense.
  3. In certain cases, it can be a win to get a DUI resolution but without the .15 enhancement. Especially if an ignition interlock is going to screw with a client’s job.

There are two ways that a DUI defense lawyer can remove the .15 enhanced penalties when somebody has been initially charged with a .15 DUI. One way is to get the judge to make a finding after hearing that the enhancement should go away. The other way is to get the state attorney to agree and stipulate on the record that a .15 enhancement is not appropriate in a particular case.

Of course, an attorney can still defend a DUI with a .15 result much like any other DUI with the breath test result.

If the DUI lawyer can get the breath test result thrown out of court, then it doesn’t matter whether the breath test result came in at a .08 or a .38.

If evidence is thrown out of court, then the evidence cannot be shown to the judge or the jury. And if the evidence can’t be shown, then it is as if it does not exist!

And even when the lawyer can’t remove the evidence entirely he or she can still question the credibility of the evidence.

In the day and age of high tech, the old school funky technology used in breath test machines is increasingly suspect to a wise juror. And of course common sense dictates that a breath test result to determine the amount of alcohol in blood just doesn’t make a ton of sense. Why wouldn’t the officer just take a blood test when the driver was arrested?

Driving While Impaired and Causing Property Damage or Non-serious Injury

Florida law has also decided to enhance penalties when a driver causes property damage and injuries.

The most common additional penalty that goes along with causing property damage is the requirement of paying for the damage caused to another’s vehicle.  This is called restitution in criminal law circles. Above and beyond everything else that the driver is paying for, the driver will also need to pay a fair value for the damage caused to property.

Likewise, in cases of non-serious injury, the driver accused of DUI should expect to pay for any additional hospital bills or medical bills resulting from the accident.

Jail time is another potential penalty in property damage DUI cases. The judge has the ability to send the driver, even on a first-time DUI to jail for up to a year. In a normal first time DUI cases, the maximum jail sentence is only 180 days

How a DUI Attorney Defends DUI’s Causing Property Damage or Non-serious Injury

Although driving while impaired and causing property damage or nonserious injury has more enhanced penalties than a regular DUI charge, it also opens up unique defense opportunities for the DUI attorney.

For example, DUIs for property damage are almost always of the result of an auto accident.

Auto accidents are unique, because Florida recognizes a statutory privilege for communicating with cops about auto accidents.

The idea is that we want people to freely chat with the cops about what caused the auto accident to happen.

We called this privilege the “accident report privilege”.

In certain cases , this auto accident report privilege can lead to the suppression of some of the evidence that was gathered by the officers on scene. This can include evidence of who was driving the accident vehicle, statements made by the driver after the accident, as well as physical evidence that may have been seized by the officers after the accident

Driving While Impaired and Under 21

Driving while impaired and under 21 is commonly referred to as underage DUI.

Underage DUI results in enhanced penalties. Now, these penalties are not criminal in nature but rather administrative.

These are penalties that hurt the ability of the under 21-year-old to drive.

Administrative Penalties for a Under 21 DUI

If a driver who is 21 years old or younger blows into the breath test machine and gets a sample reading of .02 or higher, that person is looking at a six month driver license suspension for a first-time DUI arrest.

This suspension is twice the time of an administrative suspension that would be given to a driver over 21.

If the driver is under 21 and refuses to blow into the breath test machine or provide a urine or blood sample, then the administrative suspension is for one year. That person cannot drive for any reason. Again, this is a suspension that is twice as long as normal for drivers over 21.

The interesting thing here is that an underage driver is getting administrative suspension even if they are not technically breaking the law.

Assuming that this driver doesn’t have any urinalysis results showing drugs in the system, even if he blew a .025 on the breath test, this driver can have a really good case for their DUI attorney to work with.

After all, it is a crime to be .08 or higher. Not .025.

Yet, Florida has decided that if the driver is under 21, they are going to penalize them, at least administratively, for blowing even a minuscule amount.

If you remember the discussion above on ignition interlock, you remember that mouth wash prior to blowing into the breath test machine can result in a .025. This is not much alcohol were talking about here!

How a DUI Attorney Defends an Underage Florida DUI Charge

While we spend a good deal of time on the site discussing technical defenses, underage DUIs often lend themselves to emotional defenses for the DUI attorney.

Specifically, when you have a kid who is under 21, there is a strong desire to not ruin their life. So depending on how well the kid acted at the scene with the officer, how respectful the kid was, and how well the kid is taking care of everything else in their life, these emotional trigger points can be helpful for the DUI attorney in negotiations with the state.

Now, a college student who is going to be a Rhodes Scholar and volunteers every week at the soup kitchen is still going to have a hard time if they blew three times the legal limit and crashed a car.

But in those close cases where the ability to get the charge reduced to reckless driving or outright dismissed is very close, this sort of emotional facts can be just what the defense attorney needs to get the feel that the underage DUI driver must have.

Boating While Drinking

Surprisingly, boating while drinking (BUI), is penalized almost as severely as a regular DUI.

Furthermore, for purposes of enhancement, should a driver pick up another DUI down the road, a boating while drinking will count as a previous DUI.

Boating in a marine environment can also complicate the defenses for the DUI attorney because certain fourth amendment defenses (such as illegal traffic stop defenses) don’t necessarily apply to a boater on the water.

If you’re a boater, then you know that in most cases the cops have the ability to pull right up to you and hop on your boat to make sure that you have the right flares and other devices that you’re supposed to have.

Elements of a BUI Charge:

Just like it’s illegal to drive and drink, it’s also illegal to consume alcohol and operate a boat.

However, it is illegal to operate a boat while under the influence of alcohol or drugs to the extent that your normal faculties are impaired.

For an adult who’s over 21 in Florida, a BUI arrest can happen when blood alcohol concentration is over .08 or the officer suspects that a person’s normal faculties are impaired because of alcohol or drugs.

It’s even tougher on kids under 21: in Florida a person under the age of 21 who operates a boat  with blood alcohol content of .02 or above can be arrested for DUI.

While we often see boating under the influence charges come from Coast Guard officers that are patrolling in Tampa Bay or the Gulf Coast off Pinellas County, we are increasingly seeing arrests come from the Sheriff’s officers utilizing water vehicles.

How Lawyers Defend BUI Charges

DUI lawyers defend boating under the influence charges in exactly the same manner that they defend driving under the influence charges.

While we previously mentioned that there are often less avenues to attack BUI charges than DUI charges, we also have the added benefit of not observing bad driving patterns in boating under the influence case.

For example, many DUI cases involve a cop observing a driver weaving inside or outside their lane.

As you can imagine, this sort of impaired driving pattern doesn’t really lend itself to much to somebody boating under the influence.

Riding a Bicycle While Drinking

Without spending too much time on the topic, recognize that in Florida, a bicycle is actually considered a vehicle for purposes of the driving under the influence statute.

That means that you can get a DUI while driving a bicycle, or scooter, or moped.

The DUI statute as it defines a motor vehicle is intentionally open and liberal.

DUI Resulting in Serious Injury

It should come as no surprise that driving under the influence and causing serious bodily injury to another person can lead to seriously enhanced penalties.

In Florida, to prove the crime of DUI causing serious bodily injury, the prosecutors, of course, need to prove the crime of DUI.

But they also need to prove that there is serious bodily injury suffered by an individual or victim.

Finally, they have to prove beyond a reasonable doubt that the drunk driver caused or contributed to causing serious bodily injury.

Definition of Serious Bodily Injury

Florida law defines exactly what serious bodily injury is.

Remember that any bodily injury at all results in an enhancement to the normal penalties of DUI.

But, if the injury goes above that threshold and becomes a serious bodily injury, the penalties get much much more severe.

Under Florida law, serious bodily injury means an injury to any person, including the driver, which creates any of the following conditions:

  • A substantial risk of death
  • A substantial risk of serious personal disfigurement
  • A substantial risk of protracted loss or impairment of the function of any bodily member or organ.

Just as you may have guessed, serious bodily injury is injury that is… Serious.

But as you may not have guessed, you can be charged with this enhanced DUI for serious bodily injury even if the only person you hurt is yourself.

Enhanced Penalties for Serious Bodily Injury DUI’s

The enhanced penalties for causing serious bodily injury as a result of drunk driving are indeed severe.

While a normal DUI is only a misdemeanor, a DUI with serious bodily injury is a felony.

Instead of looking at County jail, a person convicted of serious bodily injury DUI could go to prison for up to five years.

The fines are enhanced as well. Instead of looking at the $1,000 fine, a person convicted of a serious bodily injury DUI can face a $5000 fine.

Not surprisingly, serious bodily injury can mean that somebody has substantial medical bills that need to get paid.

Prosecutors often seek to get restitution for the medical bills paid for the person(s) injured as a result of the DUI.

How a Defense Attorney Defends a Serious Bodily Injury DUI

Not surprisingly, a DUI defense attorney often attempts to get the felony serious bodily injury DUI reduced down to a regular DUI.

This means that substantial litigation and time will be focused on the issue of whether or not the state can prove that the bodily injury in and of itself was indeed serious.

There is actually a line of cases that discusses when bodily injury is serious and when it’s not.

Driving While Impaired Resulting in Death

Perhaps the most horrible DUI to deal with are those that the result death of another individual.

According to the National Highway Traffic Safety Administration, 10,265 people were killed in drunk driving crashes involving a driver who had an illegal blood alcohol content of .08 or greater in 2015 alone.

Because of this, the state of Florida has greatly enhanced the penalties associated with killing somebody as a result of the DUI.

Defending someone driving while impaired resulting in death can be complex and time-consuming because of the penalties associated with conviction for a DUI manslaughter.

For a person convicted of causing the death of another while driving drunk, the penalties can be life-changing if not life-ending.

If convicted of DUI manslaughter in Florida a judge is required to impose 124.5 months in prison.

That’s a minimum requirement. The judge can always impose more prison, up to 15 years, and of course a substantial fine along with permanent driver’s license revocation.

Defending a DUI With Death

In defending a DUI where someone has died, the defense attorney will use all of the normal DUI defenses that we discussed before.

After all, if the person who caused the accident wasn’t actually guilty of a DUI, then the state of Florida cannot prove the DUI portion of the DUI with debt charge.

But another issue that becomes relevant with the DUI where somebody has died is whether or not there was careless driving by the defendant.

The state attorney doesn’t have to prove that the death of the victim was caused by the drunk driving of the defendant.

But the state attorney does have to prove that the person accused of drunk driving did deviate in some manner from regular good driving.

That means an accident reconstruction expert can be vital to the defense.

Driving While Impaired- a Second Time Within Five Years

Florida has decided to penalize drivers harsher when they get arrested a second time within five years of a prior DUI conviction.

The biggest difference is that a person convicted of a second DUI offense within five years of a previous DUI conviction is looking at jail time.

The law requires a minimum of 10 days in jail. Technically the law requires up to nine months in jail, but we only rarely see such harsh penalties for an otherwise regular second DUI within five years of previous conviction.

The fine is also enhanced. And a person convicted of a second DUI within five years is looking at a minimum five yea driver’s license revocation.

How A DUI Attorney Defends against a Second DUI Conviction in Five Years

Defending someone facing a second DUI charge does lend itself to some additional unique defenses.

Specifically, the state attorney has the burden of proving not only the new DUI charge but also proving up the prior conviction.

That means that a DUI attorney tends to attack the original DUI conviction even if that DUI conviction was in another county or state.

There is also a unique area where the person convicted of a first DUI needs to have been represented by counsel at the time of pleading to that DUI.

In certain cases if that person was not represented by counsel at the time of the original DUI defense, then the DUI attorney can move the court to dismiss the enhanced penalty and in effect turn the second DUI with five years into a first-time DUI.

Driving While Impaired a Third Time Within 10 Years of a Previous Conviction

Much like a second DUI within five years of the previous DUI, a third time DUI within 10 years of a previous conviction carries even more enhanced penalties.

Specifically jail time.

A person convicted of a third DUI within 10 years of two prior DUIs is looking at a minimum of 30 days in jail.

And if you’re being charged for the third DUI in 10 years, then the state attorney is going to enhance it into a felony.

That means that your maximum time in jail is no longer a year in County. Your maximum time in jail is five years in prison.

A third DUI within 10 years of a prior conviction also requires an ignition interlock device to be placed on all vehicles owned used were routinely operated for at least two years.

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