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- Siar, David: "You should never stand alone against the bars of criminal justice."
- Leavengood & Nash: Driving under the influence is defined as operating any type of motor vehicle while oneÕs abilities are impaired by consumption of alcohol or drugs. If you were operating a motor vehicle and your blood alcohol concentration (BAC) was .08% or above, you may be accused of DUI. DUI Regulations in Florida Florida hold strict penalties for individual convicted of driving under the influence. A DUI conviction can lead to the loss of oneÕs license, substance abuse counseling and classes, fines, and imprisonment. In addition, a conviction will stay on your permanent criminal record.
- Fleming Law Group: Back in the old days, a driving under the influence (DUI) charge was of little significance.Ê The defendant typically pled guilty, received a slap on the wrist from the judge, and drove home.Ê Times have changed, and in Florida, the revised recently revised traffic laws impose substantially stricter sanctions.Ê These include fines, jail, community service, mandatory DUI education classes, interlock devices, andÐperhaps worst of allÐlicense revocation.Ê The fines, sentences, and revocation periods increase significantly with each subsequent DUI offense.Ê For example, under current Florida law, a third DUI within ten years is now a felony, whereas it was a misdemeanor just five years ago. Ê Such a felony conviction could lead to a prison sentence of up to 5 years and a license revocation of a minimum of 10 years.Ê In light of such dramatic changes in the law, the stakes are higher than ever before. ÊAn individual charged with DUI is therefore well-advised to hire an attorney who is fully equipped and prepared to try such a case.Ê This is significant for two reasons:Ê First, prosecutors are more likely to reduce the charges when a defendantÕs lawyer or firm has a reputation of going to trial.ÊÊ Second, even if the case proceeds to trial, a good trial attorney will use the various available mitigating factors and evidentiary defenses to raise a reasonable doubt, including the accuracy of test results as well as testimony of the officer who made the arrest.
- Denson Law Firm:
Anyone can be accused of drunk driving
An investigation in a Florida drunk driving case begins when a police officer stops a motorist to issue a traffic ticket. Even if the police arrest you, the arrest does not mean an automatic conviction for drunk driving. In some cases, your Florida drunk driving attorney can show that a police officer's arrest was improper or unlawful. That, and other factors, could cause your case to be dismissed by the court or charges reduced by the prosecutor. - Yanchuck, Berman, Wadley & Zervos:
represent and advise clients in the areas of:
* Criminal Law
* DUI/DWI
* Health & Health Care Law
* Litigation & Appeals
* Personal Injury -- Plaintiffs
- Craig Epifanio: WHAT DO I DO IF I'M CHARGED WITH A DUI First of all don't panic because the penalties or punishment depends on several variables. These include whether or not you have been convicted previously and the circumstances surrounding your arrest. For a first offense some of the mandatory and maximum penalties include: * Mandatory $250 fine, maximum of $500 * Mandatory 50 hours of community service * Mandatory DUI school * Mandatory Substance Abuse Evaluation and any follow-up treatment * Mandatory 6 months license revocation, up to one year * Mandatory Probation up to one year * Maximum of 6 months in jail * Immobilization for 10 days of the vehicle that was driven by the person who is convicted, unless the court finds that the immobilization would impose a hardship * 6 month ignition interlock device if over .20 blows or a minor is in the vehicle. For a Second offense, the fine amounts can double. However, if the second conviction is within five years of the last conviction, the license is revoked for 5 years and 10 days jail minimum with a 9 month maximum. Further, the immobilization increase to 30 days. For a Third offense outside of 10 years, the fines and penalties again increase with a maximum sentence of one year in jail. HOWEVER, if any of the prior 2 convictions is within the last 10 years, then the charge becomes a felony and the offender is subject to the Sentencing Guidelines. Further, there is also a mandatory 30-day minimum jail sentence and 10 year license suspension. A Fourth offense is a Felony, however, occassionally the prosecutor decides not to prosecute it as a felony for various reasons. A Felony then subjects the Defendant to Sentencing Guidelines. There is also a law effective July 2002 that makes a second refusal a misdemeanor. Therefore, a person can now be arrested solely on the basis of refusing to offer a blood or breath test. It should be noted that the law has yet to be truly be tested in the courts, but as it stands just remember that a refusal can now subject you to criminal sanctions. Additionally, after July 1, 2003, if the court orders an ignition interlock device on your vehicle, you may not get (or keep) a license until that is installed. They are discretionary with the judge on some first time DUIs, but there is a one-year minimum time of having this installed on your vehicle for a 2nd DUI, and a two-year minimum if it is a 3rd conviction. The above represents mandatory penalties. The court may impose additional penalties if there are aggravating circumstances. This includes among other things, the blood alcohol content if over a .20, the age of the driver, and if the driver was involved in an accident. WHAT ABOUT THE LICENSE REVOCATION? In addition to the criminal penalties the Department of Highway Safety and Motor Vehicles can suspend your license civilly. The length of time depends on the number of convictions, whether or not it was a refusal, and the amount of the breath test. For example, a refusal extends the period of suspension on a first time DUI to one year, and to 18 months if you have ever refused in the past. The ticket you receive is good for a temporary 10-day driving permit. After this 10-day period, there will be a "hard suspension" for an additional 30 days (or for 90 days if this was a refusal). During this "hard suspension" the driver is not eligible for any type of driving permit. This period may be altered, however, if a formal hearing is requested. With regards to the civil suspension a formal or informal review may be requested. However, A HEARING CAN BE REQUESTED ONLY WITHIN THE FIRST 10 DAYS FOLLOWING ARREST. An informal hearing is conducted by a hearing officer by examining the materials submitted by the law enforcement officer and you. The officer is not required to attend. The hearing officer has 21 days to either sustain, amend, or invalidate the license suspension. The formal hearing is usually held within 30 days of requesting a hearing by a DHSMV hearing officer. At this hearing, the hearing officer will be authorized to administer oaths, examine witnesses, take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension. One is allowed to subpoena witnesses including the arresting officers, however, this may involve the payment of witness fees. The hearing officer has to make a decision on the suspension within 7 days following the hearing. SPECIAL NOTE: Even if a hearing is requested the driver's license suspension remains in effect pending the outcome of the hearing unless a temporary driving permit is issued. In other words, Don't Drive!! Why is it necessary to have an attorney in light of this information? First of all this information is not all inclusive. Next, there are many things that can be brought to the prosecutor's attention that may either mitigate the charge or cause it to be dismissed altogether. Every case is different and an attorney can help you get through this tough time and achieve a result that is in your best interest.
- Lane Lastinger: Both the prosecution and a defendant have a right to request that certain instructions be submitted to a jury when a trial court charges the jury. A request for the instructions must be made in writing and must be presented to the trial court prior to the trial court's charge to the jury. The request may also be dictated to a court reporter in the presence of the trial court and counsel for both parties.
- Richard McKyton: One of the first things to ask yourself in deciding if you should consult an attorney is: "What's at stake?" When your finances or liberties are in serious jeopardy, the obvious answer is to get legal help. But what is serious? An ordinary parking summons is a brush with the law, but you need not consult with an attorney to pay the fine or even to fight it. However, if you've accumulated a number of unpaid parking tickets and a warrant has been issued for your arrest, you would probably want to hire a lawyer to help you best resolve the situation, and perhaps save you money or even keep you out of jail.
- Nicholas Fiorentino: The judicial power of the United States extends to all cases or controversies arising under the United States Constitution. The role of the judiciary is to interpret what the law is and to apply it to cases or controversies before the courts. Implicit within the power to interpret is the power to decide whether a law conflicts with the Constitution.
- Frank Russo: Learn where you stand and what your opions are.
- Scott & Fenderson: : The hiring of an attorney for your DUI case is an important : decision and one which should not be based upon advertisements alone. Feel free to give one of us a call and we will discuss our qualifications with you.
- Maximillian Goldberg:
The legal consequences of a DUI conviction in Florida can include Jail, fines, license suspension and the revocation of driving privileges. As states have cracked down on drunk driving, legislators have found that there is much to gain by "piling it on" to the driver accused of DUI. Hardly a year goes by without legislators finding some new way to grab headlines by adding additional sanctions to DUI convictions. In the past ten years, most states have added the following terms as mandatory conditions of a DUI conviction:
- DUI School
- Victim Impact Panel
- Vehicle Ignition Interlock
- Community Service Work Hours.
Driving Under the Influence can be either a misdemeanor or felony, depending on the number of prior DUI convictions or the seriousness of the offense.
If you have ever been charged with a DUI, it is imperative that you retain an attorney as quickly as possible. YOU ONLY HAVE 10 DAYS TO CHALLENGE YOUR LICENSE SUSPENSION FOLLOWING AN ARREST FOR DUI.
DUI Penalties 1st DUI 2nd DUI
(within 5 yrs.)3rd DUI (within 10 yrs. of 2nd) or Felony Jail 0-180 days
(>.20) 0 - 270 days10-180 days
(>.20) 10-270 days30 days - 5 yrs. Fine $250 - $500
(>.20) $500 - $1000$500 - $1000
(>.20) $1000 - $5000$1000 - $5000
(>.20) $2000 - $5000License Suspension 6 Months - 1 Year 5 Years 10 Years Business Purposes License YES
After 30 DaysRefusal -
90 Days1 Year
(after conviction)Interlock If court ordered
(>.20) Up to 6 mos.At least 1 year
(>.20) At least 2 yrs.At least 2 years Immobilization of Vehicle 10 Days 30 Days 90 Days
*A conviction for DUI - 4th Offense will result in a lifetime revocation of your driver’s license.
The above DUI sanctions all carry some cost, from a minimum cost for the VIP panel to up to $3,000 for the ignition interlock device. Add these to the fines, court costs and attorney fees, and you're talking about serious expenses. The unspoken costs of a DUI conviction can be less obvious yet much more burdensome. These unspoken costs include fines, court fees, civil suits, home monitoring, license reinstatement fees, increased insurance premiums, and treatment.
There are other consequences of a DUI conviction which involve more than mere money. If you are convicted, you may not be able to obtain life insurance at any price. In addition, many health insurance companies will "rate" you, charge you an extra premium, or deny you coverage.
The future undoubtedly holds even tougher sanctions for DUI convictions, including higher fines and costs, and mandatory jail in many states. If you are arrested for DUI, the additional cost of having an attorney who has specialized training may more than pay for itself, if it means fighting the charge and avoiding a conviction.
- Timothy Hessinger:
Calculate Blood Alcohol Content
Summary Of D.U.I. And Administrative Suspension Laws
D.U.I.- Modern Day Salem Witch HuntDUI Fundamentals
Driving under the influence
A person is guilty of the offense of driving under the influence and is subject to punishment as provided in the penalties section if the person is:
1. Driving or in actual physical control of a vehicle within this state, and
2. a. The person is under the influence of alcoholic beverages, any chemical
substance set forth in s.877.111, or any substance controlled under
chapter 893, when affected to the extent that the person's normal
faculties are impaired; orb. The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
c. The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
Notice that there are three ways for the state to prove the second element of a DUI charge. The second element can be proven solely based upon their normal faculties being impaired. This is the common method of proof when the arrested person refused to provide a breath sample and there was no cause for a blood sample to be taken. Normal faculties are defined as "the ability to see, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives."
The police started gathering evidence that the arrested's normal faculties were impaired the moment they started following the arrested's car. The police document the driving pattern, personal observations of the driver, and the driver's performance on the field sobriety tests.
The second and third way the state can prove a DUI is by the arrested's breath alcohol or blood alcohol content being at or over .08.
In most cases the arrested has done the field sobriety tests and provided a breath sample allowing the state to argue that the arrested's normal faculties were impaired and that his blood alcohol was over .08.
DEFENDING A DUI
It may not be as easy as it sounds to be convicted of a DUI. The State of
á The driving pattern of the vehicle
á Road Conditions
á Weather conditions
á Lighting of the area
á Mechanical problems with vehicle
á Did the officer read you your rights
á Were you questioned
á Medical conditions that affect balance
á Witnesses who can testify as to number of drinks
á Was there probable cause for the stop
á Did the officer have a legal reason to request field sobriety tests
á Did the officer give the approved FST's
á Were the FST's administered properly
á Were the FST's given in a proper location
á Was there probable cause to arrest
á Were the proper procedures followed in the Breath Test
á If there was a refusal, was implied consent read
á How does the person arrested look on the FST video
á Does the FST video correlate with the BAC
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Formal Review Hearings
A DUI HAS TWO COMPONENTS:The first component of a DUI in the administrative component conducted by the DHSMV. This component deals exclusively with the suspension or revocation of the arrestee's license.
If you have been charged with DUI, you have TEN (10) calendar days from the date you were arrested to file for a Formal Review Hearing with the Department of Highway Safety and Motor Vehicles. Requesting a Formal Review Hearing accomplishes several objectives.
a) Even if the administrative hearing officer finds that the actions of the police were proper, your privilege to drive will be extended until after the hearing officer has ruled. Formal Hearings are usually held approximately 30 days after being requested.
b) If you prevail at the administrative hearing, your driving privileges will not be administratively suspended. (Note that your privilege to drive can still be suspended by the court in the criminal case).
c) The Formal Administrative Hearing will allow an opportunity for the police officers involved in your case to be subpoenaed and questioned regarding the legality of their actions. This can often provide insight into the strengths and weaknesses of the state's case.
. Please do not allow 10 days to pass before contacting an attorney.The second phase of a DUI is the criminal complaint brought against the defendant by the county of arrest.
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Why Defend a DUI Case?
The police are under great pressure from advocacy groups to make more DUI arrests. This has resulted in a larger number of 'borderline' cases, or, cases in which an arrest should not have been made at all. The prosecutor's burden in proving DUI is governed by the same rules of law and evidence required by the courts in most cases. However, unlike most charges, the arresting officer's testimony relies on his 'opinion' of your impairment relating to your ability to drive and your normal faculties. In addition, there may also be scientific evidence such as a breath test. In a typical DUI prosecution the state presents evidence regarding your driving pattern, your performance on 'field sobriety tests', and the results of a breath test. Although the evidence against a driver may seem strong at first glance, there are good defenses to the different segments of the state's case. A lack of evidence can be brought to the prosecutor's attention to secure a reduction to a lesser charge such as reckless driving, or possibly dismissal of the case.
Your Driving Pattern
Usually in a DUI case the officer documents what you did wrong, not what you did right. For instance, the officer's report may indicate you were weaving. However, officers usually don't document proper driving behavior such as your speed, you were not following other vehicles too closely, and you obeyed all traffic signs.
There may be other factors to consider such as: road condition (i.e. lack of lighting, road construction, adverse weather conditions, traffic congestion), confusing road signs, you're unfamiliarity with the area, and mechanical difficulties with your vehicle.
In addition, if the officer did not have a valid legal reason to stop your vehicle the court may exclude all evidence against you. This could result in the dismissal of your charge.
Field Sobriety Tests
As part of an officer's DUI investigation they typically request a driver to perform field sobriety tests. These tests usually include standing on one leg, touching your finger to your nose, reciting the alphabet, and walking each step with the heal of one foot touching the toe of another. The officer then 'scores' your performance on these tests to determine whether a driver should be arrested. Most people are surprised to learn the criteria for 'scoring' is very strict on the driver, i.e. more than one small mistake on a test is considered a failure. For example, the 'heal-to-toe' test has more than a dozen scoring criteria. If a driver misses or forgets more than one step the result is scored as a failure and the driver may be susceptible to arrest. This may be the case even if the driver has physical disabilities.
Generally, most police agencies videotape your performance of the field sobriety tests. I order a copy of the videotape and evaluate your performance of the field sobriety tests. We can determine if your performance on the tests is consistent with the officer's version in his police report. The videotape can be compelling evidence and a person who looks good performing the tests can often be a good candidate for a reduction of the DUI charge regardless of the 'score' given by the officer. See Field Sobriety Tests Tab for more detail.
The Breath Test
The breath test results may be inaccurate or unreliable for a variety of reasons. Inaccurate intoxilyzer readings could be caused by such things as the failure of the police to observe you for 20 minutes before the test, the lack of proper training and licensing of the operator, hiccups or burping during the test, high body temperature, radio interference and improper maintenance of the machine.Sometimes, good performance of the field sobriety tests on videotape can cast doubt on the accuracy of a high breath test result. If a person looks perfectly fine on the videotape of the field sobriety tests how can the high reading on the intoxilyzer be accurate.
I can secure the intoxilyzer maintenance records and review the qualifications of the breath test operator. We can explore possible defenses such as whether your actual blood alcohol level may have been below the legal limit at the time of driving (even though it was above the per se limit at the time of testing). My office also uses state-of-the-art software to check the accuracy of your breath test results.
To fully understand your options, a thorough evaluation of the state's case by an experienced attorney is critical.
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GETTING YOUR HARDSHIP LICENSE
Below is an outline of the requirements that you must complete before you will be eligible.
Consulting with an attorney before your administrative hearing is very important to ensure you have the best chance of driving during the suspension period.
Note: There are two types of suspensions. One is for the DUI conviction and the other is the administrative suspension for driving with a BAC of .08 or above.
How do I reinstate my license after a conviction for Driving Under the Influence (DUI)?
1st DUI conviction has a 180 day to 1 year revocation effective on conviction date. Before expiration of the revocation period, you may apply for a hardship license in the county where you live.
If you wait to reinstate your license until your revocation period ends, proof of enrollment or completion of
At the time of reinstatement, whether for a hardship license or a full license, you must take the required examination, and pay $115 administrative fee and $60 reinstatement fee and any license fee required. Proof of liability insurance on the arrest date will be required or proof of liability coverage and a $15 reinstatement fee will be required.
If you wait to reinstate until after your revocation period ends, proof of enrollment or completion of
At the time of reinstatement, whether for a hardship license or a full license, you must take the required examination, and pay $115 administrative fee and $60 reinstatement fee and any license fee required. Proof of liability insurance on the arrest date will be required or proof of liability coverage and a $15 reinstatement fee will be required.
If you wait to reinstate until after your revocation period ends, proof of enrollment or completion of
At the time of reinstatement, whether for a hardship license or a full license, you must take the required examination, and pay $115 administrative fee and $60 reinstatement fee and any license fee required. Proof of liability insurance on the arrest date will be required or proof of liability coverage and a $15 reinstatement fee will be required.
How do a reinstate my license after an Administrative suspension for driving with an unlawful alcohol level .08 (you did the breath test)
You will be suspended as of the arrest date for 6 months for the first offense and one year for any other offense of driving with a BAC of .08 or above. You will be given a 10-day permit on the date of the arrest. Once the permit has expired, then 30 days of the suspension must be served before the driver is eligible to apply for a hardship license.
You will be eligible for a hardship license on the first and any consecutive suspension, unless you have been convicted of DUI two or more times. You must provide proof of enrollment in a
If you reinstate after your revocation period ends, you must provide proof of
At the time of reinstatement, whether for a hardship license or a full license, you must take the required examination, and pay $115 administrative fee and $35 reinstatement fee and any license fee required. Proof of liability insurance on the arrest date will be required or proof of liability coverage and a $15 reinstatement fee will be required.
How do I reinstate my license after an administrative suspension for refusal to submit to a breath/urine test?
You will be suspended as of the arrest date for one year for the first offense and 18 months for any consecutive offenses. You will be given a 10-day permit on the date of arrest and when the permit expires must serve 90 days of the suspension before the driver is eligible to apply for a hardship license on the first suspension. No hardship license is permitted if you have refused to submit two or more times.
You must provide proof of enrollment in a
If you reinstate after your revocation period ends, you must provide proof of
At the time of reinstatement, whether for a hardship license or a full license, you must take the required examination, and pay $115 administrative fee and $35 reinstatement fee and any license fee required. Proof of liability insurance on the arrest date will be required or proof of liability coverage and a $15 reinstatement fee will be required.
DUI Penalties
Penalties may be higher for
First Conviction
A fine of not less than $250 or more than $500
á Your license will be suspended for 6 mos to 1 year.
á You are eligible for a Business Purpose Only (
á Probation (6 mos to 1 year), including DUI school, community service, alcohol evaluation and treatment, and a victim impact panel.
á Impoundment of vehicle for at least 10 days
á Ignition device (0.20% or higher, 0 - 6 mos)
Second Conviction within 5 years
A fine of not less than $500 or more than $1,000
á Your license will be suspended for 5 years
á Probation for 1 year including DUI School Level II
á Impoundment of vehicle for at least 30 days
á Ignition device at least 1 year (.20% or higher, at least 2 years)
á May petition for a
Second Conviction outside 5 years
A fine of not less than $500 or more than $1000
á Your license will be suspended for 6 months to 1 year
á Probation for 1 to 5 years
á Ignition device at least 1 year (.20% or higher, at least 2 years)
á May petition for a
Third Conviction within 10 years (FELONY)
A fine of not less than $1,000 or more than $5,000
á Your license will be suspended for 10 years
á Probation for 0 to 5 years
á Impoundment of vehicle for 90 days
á Ignition device for at least 2 years
á May petition for a
Third Conviction outside 10 years (Misdemeanor)
A fine of not less than $1,000 or more than $2,500
á Your license will be suspended for 5 years
á Probation for 1 year
á Ignition device at least 2 years
á You are not eligible for a
Fourth and/or Subsequent Conviction
Any person who is convicted of a fourth or subsequent violation of this section is guilty of a Felony of the Third Degree; the fine imposed for such fourth or subsequent violation may be $1,000 to $5,000.
á Sentenced under Florida Sentencing Guidelines up to 5 years in Florida State Prison
á You are not eligible for a
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What is an Ignition Interlock Device?
An ignition interlock device is an in-car alcohol breath screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a pre-set limit. The device, uses the same breath alcohol technology used by police as roadside screening devices and is located inside the vehicle, near the driver's seat, and is connected directly to the engine's ignition system.Who is required to have an ignition interlock and for how long?
Section 316.193, of the Florida Statutes requires Ignition Interlock Devices to be Installed on the Vehicles of Persons Convicted of DUI.What is the Cost?
The cost of an Ignition Interlock device is $70 plus $67.50 per month for monitoring and calibration, plus applicable taxes. There is also a $100 refundable deposit or a $5 per monthly insurance charge.
Installation is by appointment only. To schedule your Ignition Interlock device installation, call INTERLOCK SYSTEMS OF FLORIDA Central Installation Scheduling Number at: (407) 207-3337.How Does It Work?
á Fuel cell technology
á Prevents the start of the vehicle with breath sample above .05
á Equipped with rolling retest capable of random testing while the car is running
á Data collected through wed-based reporting with access 24 hour a day, 7 days a week
á User funded
How to Apply?
A person convicted of DUI who applies to the Division of Driver Licenses for driver license reinstatement will receive an instruction letter regarding the Ignition Interlock requirement. If the person is otherwise eligible, a driver license will be issued.
The convicted person will receive a letter from the department requiring that the device be installed by a certain date. If the convicted person fails to have the device installed by that date, the driver license will be cancelled.
For further information contact:Florida Department of Highway Safety & Motor Vehicles
(850) 487-1227
www.hsmv.state.fl.usFor more details on the Ignition Interlock see: www.floridainterlock.com
Related
316.1937 IGNITION INTERLOCK DEVICES
1. Any person who is convicted of driving under the influence in violation of s. 316.193 shall not operate a motor vehicle unless that vehicle is equipped with a functioning ignition interlock device installed in such a manner that the vehicle will not start if the operator's blood alcohol level is in excess of 0.05 percent or as otherwise specified by the court. The court may require the use of an approved ignition interlock device for a period of not less than 6 months, if the person is permitted to operate a motor vehicle, whether or not the privilege to operate a motor vehicle is restricted, as determined by the court. The court, however, shall order placement of an ignition interlock device in those circumstances required by s. 316.193.
2. If the court imposes the use of an ignition interlock device, the court shall: (a) Stipulate on the record the requirement for, and the period of, the use of a certified ignition interlock device. (b) Order that the records of the department reflect such requirement. (c) Order that an ignition interlock device be installed, as the court may determine necessary, on any vehicle owned or operated by the person. (d) Determine the person's ability to pay for installation of the device if the person claims inability to pay. If the court determines that the person is unable to pay for installation of the device, the court may order that any portion of a fine paid by the person for a violation of s. 316.193 shall be allocated to defray the costs of installing the device. (e) Require proof of installation of the device and periodic reporting to the department for verification of the operation of the device in the person's vehicle.
3. If the court imposes the use of an ignition interlock device on a person whose driving privilege is not suspended or revoked, the court shall require the person to provide proof of compliance to the department within 30 days. If the person fails to provide proof of installation within that period, absent a finding by the court of good cause for that failure which is entered in the court record, the court shall notify the department.
4. If the court imposes the use of an ignition interlock device on a person whose driving privilege is suspended or revoked for a period of less than 3 years, the department shall require proof of compliance before reinstatement of the person's driving privilege.
5. (a) In addition to any other provision of law, upon conviction of a violation of this section the department shall revoke the person's driving privilege for 1 year from the date of conviction. Upon conviction of a separate violation of this section during the same period of required use of an ignition interlock device, the department shall revoke the person's driving privilege for 5 years from the date of conviction. (b) Any person convicted of a violation of subsection (6) who does not have a driver's license shall, in addition to any other penalty provided by law, pay a fine of not less than $250 or more than $500 per each such violation. In the event that the person is unable to pay any such fine, the fine shall become a lien against the motor vehicle used in violation of subsection (6) and payment shall be made pursuant to s. 316.3025(4).
6. (a) It is unlawful to tamper with, or to circumvent the operation of, a court-ordered ignition interlock device. (b) It is unlawful for any person whose driving privilege is restricted pursuant to this section to request or solicit any other person to blow into an ignition interlock device or to start a motor vehicle equipped with the device for the purpose of providing the person so restricted with an operable motor vehicle. (c) It is unlawful to blow into an ignition interlock device or to start a motor vehicle equipped with the device for the purpose of providing an operable motor vehicle to a person whose driving privilege is restricted pursuant to this section.
(d) It is unlawful to knowingly lease or lend a motor vehicle to a person who has had his or her driving privilege restricted as provided in this section, unless the vehicle is equipped with a functioning, certified ignition interlock device. Any person whose driving privilege is restricted under a condition of probation requiring an ignition interlock device shall notify any other person who leases or loans a motor vehicle to him or her of such driving restriction.7. Notwithstanding the provisions of this section, if a person is required to operate a motor vehicle in the course and scope of his or her employment and if the vehicle is owned by the employer, the person may operate that vehicle without installation of an approved ignition interlock device if the employer has been notified of such driving privilege restriction and if proof of that notification is with the vehicle. This employment exemption does not apply, however, if the business entity which owns the vehicle is owned or controlled by the person whose driving privilege has been restricted.
8. In addition to the penalties provided in this section, a violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
History.--s. 1, ch. 90-253; ss. 16, 19, ch. 91-255; s. 18, ch. 94-306; s. 141, ch. 99-248; s. 4, ch. 2002-263.
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DUI VEHICLE IMPOUNDMENT
316.193(6)
Unless the family of the defendant has no other transportation:
1ST CONVICTION = 10 DAYS
2ND CONVICTION WITHIN 5 YEARS = 30 DAYS
3RD CONVICTION WITHIN 10 YEARS = 90 DAYS
Impoundment or immobilization must not occur at the same time as incarceration. The court may dismiss the order of impoundment of any vehicle that are owned by the defendant if they are operated solely by the employees of the defendant or any business owned by the defendant.
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DUI VEHICLE FORFEITURE
There are two requirements for DUI vehicle forfeiture:
1. You must be arrested for DUI after
2. You must have been driving on a license that had already been suspended, cancelled, or revoked for a prior DUI.
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322.34(9)(a) A motor vehicle that is driven by a person under the influence of alcohol or drugs in violation of s. 316.193 is subject to seizure and forfeiture under ss. 932.701-932.707 and is subject to liens for recovering, towing, or storing vehicles under s. 713.78 if, at the time of the offense, the person's driver's license is suspended, revoked, or canceled as a result of a prior conviction for driving under the influence.
(b) The law enforcement officer shall notify the Department of Highway Safety and Motor Vehicles of any impoundment or seizure for violation of paragraph (a) in accordance with procedures established by the department.
(c) Notwithstanding s. 932.703(1)(c) or s. 932.7055, when the seizing agency obtains a final judgment granting forfeiture of the motor vehicle under this section, 30 percent of the net proceeds from the sale of the motor vehicle shall be retained by the seizing law enforcement agency and 70 percent shall be deposited in the General Revenue Fund for use by regional workforce boards in providing transportation services for participants of the welfare transition program. In a forfeiture proceeding under this section, the court may consider the extent that the family of the owner has other public or private means of transportation.
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THE 20 MOST FREQUENTLY ASKED DUI QUESTIONS
1. What do police officers look for when searching for drunk drivers on the highways?
The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:
Turning with a wide radius
Straddling center of lane marker
"Appearing to be drunk"
Almost striking object or vehicle
Weaving
Driving on other than designated highway
Swerving
Speed more than 10 mph below limit
Stopping without cause in traffic lane
Following too closely
Drifting
Tires on center or lane marker
Braking erratically
Driving into opposing or crossing traffic
Signaling inconsistent with driving actions
Slow response to traffic signals
Stopping inappropriately (other than in lane)
Turning abruptly or illegally
Accelerating or decelerating rapidly
Headlights off
Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.
2. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?
You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication -- and it may explain the odor of alcohol on the breath.
3. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?
The law on this varies from state to state. As a general rule, however, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one.
4. What is the officer looking for during the initial detention at the scene?
The traditional symptoms of intoxication taught at the police academies are:
Flushed face
Red, watery, glassy and/or bloodshot eyes
Odor of alcohol on breath
Slurred speech
Fumbling with wallet trying to get license
Failure to comprehend the officer's questions
Staggering when exiting vehicle
Swaying/instability on feet
Leaning on car for support
Combative, argumentative, jovial or other "inappropriate" attitude
Soiled, rumpled, disorderly clothing
Stumbling while walking
Disorientation as to time and place
Inability to follow directions
5. What should I do if I'm asked to take field sobriety tests?
There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, alphabet recitation, modified position of attention, fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests. Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitable"fails"; Thus, in most cases a polite refusal may be appropriate.
6. Why did the officer make me follow a penlight with my eyes to the left and right?
This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for eye jerking); if this occurs sooner than 45 degrees, it theoretically indicates an excessive blood-alcohol concentration. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the jerking when the eye is as far to the side as it can go. This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.
7. Should I agree to take a chemical test? What happens if I don't?
The consequences of refusing to submit to a blood, breath or urine test varies according to the state. Generally, there are three adverse results:
Your driver's license will be suspended for a period of time, commonly three, six or twelve months. This is true even if you are found not guilty of the DUI charge.
In some states, refusal is a separate crime; in others, it adds jail time to the sentence for the DUI offense.
The fact of refusal can be introduced into evidence as "consciousness of guilt" Of course, the defense is free to offer other reasons for the refusal. Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.
8. Do I have a choice of chemical tests? Which should I choose?
In most states, you have a choice -- usually, of breath, blood or urine (some states, however, do not offer urinalysis). If you choose breath, many jurisdictions permit you to have a second test or blood or urine; this is because a breath sample is not saved and so cannot later be re-analyzed by the defense. Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis. Thus, if you are confident that you are sober, a blood sample is the wise choice; urine, being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit.
9. The officer never gave me a Miranda warning: Can I get my case dismissed?
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. Of more consequence in most cases is the failure to advise you of the state's "implied consent" law that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license.
10. Why am I being charged with TWO crimes?
The traditional offense is "driving under the influence of alcohol" (DUI) or, in some states, "driving while intoxicated" (DWI). In recent years, however, 46 or 48 states have also enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (either .08% or .10%). In those states, BOTH offenses are charged. The defendant can even be convicted of both, but can be punished for only one. If the case involves a refusal to submit to chemical testing, of course, only the traditional offense will be charged.
11. The officer took my license and served me with a notice of suspension after the breath test: How can he do that if I'm presumed innocent?
Agreed, it is blatantly unfair. But the law in most states having a "per se" statute (see question #10) provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit).
12. Can I represent myself? What can a lawyer do for me?
You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues. What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field -- no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.
13. How can I find a qualified drunk driving lawyer?
The best way to find a good DUI/DWI lawyer is by reputation. There are a few attorneys who have national reputations; these, of course, are expensive. Thus, the best approach is to ask other attorneys in the jurisdiction: Who is the best in the area? If you do not know any attorneys, go to the local courthouse and ask people like bailiffs, clerks and public defenders: Who would THEY go to if arrested for drunk driving? Contrary to popular belief, it is not a wise idea to obtain a referral from the local Bar association or referral service. There are rarely any qualifications required for an attorney to be on a referral list; he usually only has to ask to be placed on it. When you call, you are simply given the next name on that list.When you meet with the attorney, make sure of three things:
He has extensive experience in DUI/DWI litigation;
He has a reputation for going to trial in appropriate cases, rather than just "copping out" his clients; and
The financial terms of representation are clear.
14. What will it cost to get a lawyer?
This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each. The range of fees is huge. A general