Fort Pierce DUI Lawyers
- Wilkes, Nasreen:
What does "In Actual Physical Control of a Vehicle" mean?
This term means that the individual has had the capability and power to dominate, direct or regulate the vehicle, regardless of whether or not he or she was exercising that capability or power at the time of the alleged offense. In other words, sitting behind the wheel with the keys in the ignition may qualify as being "in actual physical control" of a vehicle even though the vehicle is not moving.
May I refuse to take a breath, blood or urine test if requested to submit to one by a law enforcement officer?
By accepting the privilege extended by the laws of this state of operating a motor vehicle, you are deemed to have given your consent to submit to an approved chemical or physical test of your breath for the purposes of determining the alcoholic content of your blood, and to a urine test for the purposes of detecting the presence of drugs, if lawfully arrested for any offense allegedly committed while driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances. However, you may refuse to take such tests unless you are involved in an accident involving serious bodily injury or death to a human being. However, refusing such tests is not without cost. The law permits the Department of Highway Safety and Motor Vehicles to suspend your privilege to operate a motor vehicle for a period of one (1) year for a first refusal, or a period of eighteen (18) months for a second or subsequent refusal. Additionally, the refusal to submit to a chemical or physical breath test, or to a urine test, upon the request of a law enforcement officer, is admissible in any criminal proceeding against you.
If the officer takes away my driver's license, for how long is it suspended?
If you have refused to submit to a lawful breath, blood or urine test, your driving privilege will be suspended for a period of one (1) year for a first refusal, or for a period of eighteen (18) months if your driving privilege has previously been suspended as a result of a refusal to submit to such a test. If you have an unlawful blood alcohol level (that is, 0.08% or above), your driving privilege will be suspended for a period of six (6) months for a first offense, or for a period of one (1) year if your driving privilege has been previously suspended. All suspensions are effective as of the date of the arrest
How can the law permit suspension of a driver's license before any kind of trial begins? I thought criminal law required a hearing or trial before they could sentence you?
While the criminal punishment under Florida laws provides for certain safeguards before an individual may be sentenced, we must remember that driving a motor vehicle is a privilege, not a right. Because it is a privilege, the State of Florida may withdraw that privilege if it has lawful grounds to do so. THIS SUSPENSION IS SUBJECT TO A HEARINGIF ONE IS REQUESTED BY THE DRIVER OR HIS OR HER ATTORNEY WITHIN TEN (10) DAYS OF THE DATE OF THE ARREST SO IT IS STRONGLY SUGGESTED THAT YOU IMMEDIATELY CONTACT AN ATTORNEY SO WE THEY CAN TIMELY REQUEST SUCH A REVIEW HEARING.
- Julia Baginski:
The process
What happens next?
1.
ÒArrest.Ó
First you were arrested.
This means that the police took you into custody and think you are
guilty of a crime.
Before the police are allowed to ask you any questions about any
crime they think you might be involved in or have knowledge of, they
are required to read you your "Miranda warnings.Ó
2.
"Reading Your Rights."
At some point the police should have told you that you have a
right to remain silent.
That anything you say can be used against you and that you have a
right to speak with an attorney.
The police should have also told you that if you cannot
afford an attorney one will be provided for you.
It is important for your
attorney to know when this happened.
3.
"Booking."
After you are taken into custody the police will take your
photograph and fingerprints.
4.
"Arraignment."
Within 48 hours of your arrest you will be arraigned.
This is where the prosecutor tells the court what you have
been arrested for. At
the arraignment, the judge only wants to know whether you plead
guilty, not guilty or no contest.
Usually, the judge you see at your arraignment is not the
judge who will handle your case after that point.
Telling your side of the story to the arraignment judge only
helps the prosecutor.
Your bail hearing may be held at the arraignment or shortly
afterwards. Also, a
trial date may be set.
If a trial date is set, it may change (get further away) as events
progress.
5.
"Indictment."
After you are arraigned and learn what you were officially arrested
for, the prosecutor will show all their evidence to a grand jury
(similar to a regular jury.)
This is an entirely one-sided proceeding.
Neither you nor your lawyer
are allowed to participate.
If the grand jury believes there is enough evidence against
you, it will issue and indictment against you.
The indictment (silent "c") is the formal charge or charges
against you.
6.
"Discovery."
After there are formal charges against
you, you have a right to see all the evidence that the
prosecutor has including
questioning witnesses.
This process may take
several months. Towards
the end of the discovery period your lawyer and the prosecutor may
begin to negotiate or bargain the charges against you.
This is called "plea bargaining."
7.
"Plea Bargaining."
Plea Bargaining may start at any time, but generally, your
lawyer will wait until he or she sees all the evidence against you.
Plea Bargaining may continue even until trial.
Be aware that in many cases there are sentencing that control
how long or shot a sentence may be imposed for any given type of
crime. Your lawyer
cannot change these guidelines but he or she may be able to
negotiate a different type of charge or fewer charges which carries
a lesser sentence.
8.
ÒTrial.Ó If
the grand jury hands down an indictment and your lawyer is unable to
negotiate a plea with the prosecutor, there will be a trial.
In a trial, the prosecutor goes first and tells their whole
case to the jury, witnesses for the prosecution are heard and
evidence against you is presented.
After the prosecutor is finished, your lawyer will tell your
side of the story. Your
lawyer will get the chance to question each of the prosecutor's
witnesses and each item of evidence presented against you.
Your lawyer may use any one of a number of different
strategies to defend you at the trial.
This will all be discussed in further detail at a later date
if your case reaches that point.
9.
ÒSentencing.Ó
If the jury finds you guilty it is up to the judge to determine what
your sentence will be.
The sentencing usually happens a few weeks after the trial ends.
- Brian Mallone:
Frequently Asked Questions about DUI's :
A person is guilty of driving under the influence if the person is driving or in actual physical control of a vehicle within this State while under the influence of alcohol or any chemical set forth in Section 877.11, or any substance controlled under Chapter 893 of the Florida Statutes when effected to the extent that the person's normal faculties are impaired or has a blood or breath alcohol level of 0.08 or greater.
MISDEMEANOR DUI
A first offense is punishable as follows: fines of $250.00 to $500.00; driver's license revocation of 6 months to 1 year; imprisonment of not more than 6 months; 10 day vehicle impoundment or immobilization; mandatory reporting probation not to exceed 1 year. Mandatory conditions of probation include attendance at an approved alcohol safety education class with a substance abuse evaluation and any treatment recommended, not less than 50 hours of community service.
A second offense (including any out of state convictions), if the date of the offense is outside 5 years of the prior conviction, is punishable as follows: Fines of $500.00 to $1,000.00; driver's license revocation of 6 months to 1 year; imprisonment of not more than 9 months; 30 day vehicle impoundment or immobilization; mandatory reporting of probation with the same conditions.
If the date of the offense for the second conviction is within 5 years of the prior conviction the person is subject to a mandatory 10 day jail term and a 60 month driver's license revocation.
A third offense (including out of state convictions), if the date of the offense is outside 10 years of a prior conviction is punishable as follows: fines of $1,000.00 to $2,500.00; driver's license revocation for 6 months to 1 year; imprisonment of not more than 1 year; 90 day vehicle impoundment or immobilization; mandatory reporting probation with the same conditions.
If the date of the offense for the third conviction is within 10 years of the date of the prior conviction, the person can be prosecuted for felony DUI (see below).
If the person is convicted and has an alcohol level of .20 or more or there was a person 18 years or younger in the vehicle, the above fines are doubled and the maximum imprisonment for the first offense is 9 months and 12 months for a second offense.
A DUI causing non-serious injury is a first degree misdemeanor.
FELONY DUI - PRIOR CONVICTIONS
If a person has three prior convictions for DUI (including out of state convictions) the person may be prosecuted for "Felony DUI". It is a third degree felony, level 6 offense, subject to five years in the State prison. Florida's sentencing guidelines apply. The mandatory minimum fine is $1,000.00 and cannot exceed $5,000.00.
A fourth or subsequent conviction will result in a mandatory permanent driver license suspension.
As of July 1, 2002, a third conviction for DUI is a felony if the date of the current offense is within 10 years of the second conviction.
FELONY DUI - SERIOUS INJURY OR DEATH
If a person is DUI as described above and causes or contributes to the cause of a crash involving serious injury, the person is subject to being charged with a DUI - Serious Injury. It is a third degree felony, level 7 offense, subject to 5 years in the State prison. The Florida Sentencing Guidelines apply. The maximum sentence is 5 years in the State prison. The minimum mandatory sentence is calculated based on various factors including victim injury points. The mandatory fine is the same as Felony DUI. There is a mandatory minimum 3 year driver's license revocation.
If the person is DUI, as described above, and causes or contributes to the cause of a crash involving death, the person is subject to being charged with DUI manslaughter. It is a second degree felony, level 8 offense, subject to 15 years in the state prison. The Florida Sentencing Guidelines apply. Without going into the details, a single death carries a minimum of 10 years in prison. There is a mandatory permanent revocation of the driver's license.
A law enforcement officer may seize your driver's license if you are arrested for DUI with an unlawful blood alcohol level or refuse to submit to a breath, blood or urine test. The officer will seize your license and issue a DUI citation, which acts as both a temporary driver's license and your notice of suspension. This ticket is your license for 10 days after your arrest. You must go to the Department of Motor Vehicle Driver Improvement Office within 10 days of the date of your arrest to request a formal review hearing to contest the suspension of your driver's license, or you lose the right to do so. If you do not request a hearing the suspension of your driver's license will begin at midnight on the 10th day after your arrest.
Yes! You may request a review of the driver license suspension by the Department of Motor Vehicles, within a specified number of days following your arrest. If you fail to request a review hearing, the Department will not conduct any type of review of the license suspension. At a formal review, the hearing officer is authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension. Both you and the Department may subpoena witnesses to attend. If you request an informal review hearing, it shall consist solely of an examination by the Department of the written materials submitted by the arresting officer, as well as any thing you wish to submit. You may not attend such an informal hearing.
If you have refused to submit to a lawful breath, blood or urine test your driving privilege will be suspended for 1 year for a first refusal or for 18 months if you have previously refused to submit to such a test. If you have an unlawful blood alcohol level your driving license will be suspended for a period of 6 months for the first offense or for 1 year if your driving privilege has been previously suspended for this reason. You are eligible for business purposes or a hardship license after serving 90 days of a "hard suspension", if you refuse the breath test providing it is your first offense. You may be eligible for a hardship license with up to one previous conviction. If you have 2 previous convictions you are not eligible for a hardship license at all. You are eligible for a hardship license after a 30 day hard suspension if you took the breath test, providing you do not have 2 prior convictions.
Yes, your insurance rates are likely to rise a great deal if you are convicted of DUI.
- Kirshner & Garland:
With no public transportation, Driver's licenses in Florida are essential. The Board Certified Criminal Trial Lawyer's at Kirschner & Garland, P.A., will do everything in their power to ensure you maintain your driver's license, and stay OUT of jail. With no public transportation, Driver's licenses in Florida are essential. The Board Certified Criminal Trial Lawyer's at Kirschner & Garland, P.A., will do everything in their power to ensure you maintain your driver's license, and stay OUT of jail.
- Charles Shafer:
You may request a review of the driverÕs license suspension by the department of motor vehicles within ten (10) day following your arrest. At a formal review, the hearing officer is authorized to administer oaths, examine witnesses and take testimony. If you request an informal review hearing, it shall consist solely of an examination by the department of the written materials submitted by the arresting officer, as well as anything you wish to submit. You generally cannot attend an informal hearing.
- Fran Ross: A criminal conviction can have a devastating impact on your life, as well severe, immediate consequences such as large fines, court costs, and jail or prison time. Criminal charges must be aggressively defended against.
- Michael Kessler: The function of the criminal justice system is to punish criminal behavior by the arrest, prosecution, and sentencing of those who violate the law. However, because we live in a free society, the system must be appropriately balanced between the power of the government and the rights of the individual. Therefore, the primary focus of the system has been to protect the rights of the criminally accused. The United States Constitution guarantees certain rights to a person accused of a crime, including the right to a trial by jury in open court, the right to be represented by a lawyer and the right to be free of cruel and unusual punishments. Other rights are applicable to all people, but mostly affect those singled out for criminal investigation, like the prohibition against unreasonable search and seizure.
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