Being charged with Driving Under the Influence (DUI) can turn your life upside down. It can lead to serious financial troubles and the possibility of jail time. A DUI conviction also leaves you with a criminal record that can make it difficult to find employment or a place to live.
Melbourne DUI Lawyer
It’s easy to feel overwhelmed and alone when facing DUI charges. The legal system can be intimidating, but it’s important to remember that you have rights. A DUI lawyer can closely examine every detail of your situation, looking for any errors made by the police or prosecution. They can help you achieve the best possible outcome so you can put this behind you and get back to living your life.
At Germain Legal, our firm defends those charged with drunk driving offenses along the Space Coast and throughout Central Florida. Our office is located in Melbourne, Florida and we proudly serve the surrounding communities of Palm Bay, Titusville, Rockledge, Merritt Island, Cocoa, and Satellite Beach in Brevard County, Vero Beach and Sebastian in Indian River County, Deltona and Dayton Beach in Volusia County, and Kissimmee and Poinciana in Osceola County.
Florida DUI Defense Information Center from Germain Legal
Below, Germain Legal provides important information about DUIs in Florida, including the penalties, possible defenses, and how a DUI lawyer can protect your rights and fight for your future.
- What is a DUI?
- Specific DUI Offenses
- Potential Defenses in Florida DUI Cases
- Criminal Process for Individuals Facing DUI Charges in Florida
- DUI Consequences
- DUI Pretrial Diversion
- Collateral Consequences
- How a DUI Lawyer Can Defend You
What is a DUI?
According to Florida Statutes Section 316.193, a DUI occurs when a person is operating or in actual physical control of a vehicle within the state of Florida and is impaired by alcohol or controlled substances. This means:
1. Driving or Actual Physical Control:
The prosecutor must prove that the defendant was driving or in actual physical control of a vehicle within the state of Florida. In Florida, a person does not need to be driving to be charged with a DUI. The law also considers someone to be in “actual physical control” if they are in or near the vehicle and have the ability to drive it, even if they aren’t currently operating the car. This means that someone who is sitting in their car with the keys, even if parked, can still face DUI charges.
2. Impairment by Alcohol or Controlled Substances:
The prosecutor must demonstrate that the defendant was under the influence of alcohol, chemical substances, or controlled substances. This influence must be to the extent that the defendant’s normal faculties (such as judgment, vision, or reaction time) were impaired.
3. Blood-Alcohol Level (BAL) or Breath-Alcohol Level (BrAL):
The prosecutor must establish that the defendant had a blood-alcohol level of 0.08 grams or more per 100 milliliters of blood or a breath-alcohol level of 0.08 grams or more per 210 liters of breath.
Types of DUI Offenses
- First DUI – Florida Statutes Section 316.193 – A first DUI in Florida happens when someone is caught driving or controlling a vehicle while impaired by alcohol or drugs, or with a blood alcohol level of 0.08% or higher. This offense is classified as a misdemeanor. Additional penalties apply if the driver’s blood alcohol level is 0.15% or higher or if a minor was in the vehicle.
- Second DUI – Florida Statutes Section 316.193 – A second DUI in Florida is when a person is caught driving under the influence of alcohol or drugs for the second time. This offense is classified as a misdemeanor. If the second offense occurs within five years of the first, the penalties include a mandatory minimum of 10 days in jail.
- Third DUI – Florida Statutes Section 316.193 – If at least one of the previous convictions occurred within the last 10 years, the third DUI is classified as a third-degree felony. If the third offense happens more than 10 years after the last conviction, it is still a third-degree felony with lesser penalties.
- Fourth or Subsequent DUI – Florida Statutes Section 316.193 – A fourth DUI is a third-degree felony. The offense is classified in this manner regardless of when prior offenses occurred.
- High Blood-Alcohol Concentration (BAC) DUI – Florida Statutes Section 316.193(4) – Driving with a blood or breath alcohol level of 0.15 or higher in Florida is considered a misdemeanor for the first and second offenses. A third offense within 10 years or a fourth offense is classified as a third-degree felony.
- Underage DUI – Florida Statutes Section 322.2616 – Under Florida law, it’s illegal for anyone under 21 to drive with a blood alcohol level of 0.02% or higher. If caught, the driver’s license is automatically suspended for six months on a first offense or one year if there’s a prior suspension. Additionally, if the alcohol level is 0.05% or higher, the suspension remains until the driver completes a mandatory substance abuse course.
- Felony DUI with Serious Bodily Injury – Florida Statutes Section 316.193(3)(c)2. – This offense occurs when someone drives under the influence of alcohol or drugs and causes serious injury to another person. It is classified as a third-degree felony in Florida. “Serious injury” means an injury that poses a risk of death, causes permanent scarring or disfigurement, or leads to long-term loss of function in any part of the body.
- DUI Manslaughter – Florida Statutes Section 316.193(3) – DUI Manslaughter happens when someone drives while impaired by alcohol or drugs and causes the death of another person, including an unborn child. In Florida, this crime is a second-degree felony, with a mandatory minimum of 4 years in prison. If the driver leaves the scene without providing information or help, the charge escalates to a first-degree felony, with the same mandatory minimum sentence.
- DUI Resulting in Property Damage – Florida Statutes Section 316.193(3)(a)1 – Driving under the influence and causing damage to someone else’s property means that a person, while impaired by alcohol or drugs, has damaged another person’s property, such as a car, building, or other objects. This offense is classified as a first-degree misdemeanor.
- Breath Test DUI – Florida Statutes Section 316.193(1)(c) – A Breath Test DUI occurs when a person is driving or in control of a vehicle and has a breath-alcohol level of 0.08 or higher. This is classified as a misdemeanor offense in Florida. Every breath sample provided in Florida is tracked and recorded. The machine used for breath tests, the Intoxilyzer 8000, generates data that shows how much breath was blown, as well as details about the machine’s calibration, maintenance, and past performance.
- DUI Test Refusal – Florida Statutes Section 316.1939 – Refusing to take a breath, blood, or urine test when stopped on suspicion of DUI can lead to serious consequences, including a 1-year license suspension for the first refusal and an 18-month suspension along with a first-degree misdemeanor charge for any subsequent refusals. Refusal can also be used as evidence against the driver in court.
- Commercial Driver License DUI – Florida Statutes Section 316.193 – DUI with a Commercial Driver License (CDL) occurs when a person operating a commercial vehicle has a BAC of 0.04% or higher or is impaired by alcohol or drugs. This offense is classified as a misdemeanor or felony depending on the circumstances. A first offense results in a minimum one-year loss of the CDL, with harsher penalties for subsequent offenses, including a lifetime ban for a second DUI.
- Possession of Open Containers in Vehicles – Florida Statutes Section 316.1936 – This offense occurs when someone has an open container of alcohol or drinks alcohol while driving or riding in a vehicle on a public road. It’s also illegal to have an open container in a parked vehicle on a public road. The offense is classified as a noncriminal moving traffic violation for drivers and a nonmoving traffic violation for passengers. Exceptions exist for passengers in certain vehicles like buses, limousines, and motor homes.
Potential Defenses in Florida DUI Cases
Unlawful Traffic Stop: Florida law requires that law enforcement officers have a valid reason or “reasonable suspicion” to stop the driver’s vehicle. If the officer cannot justify the stop, any evidence gathered after the stop, such as breathalyzer results or field sobriety tests, could be inadmissible in court.
Inaccurate Breathalyzer Results: Breathalyzer devices used in Florida must be properly calibrated and maintained. If the device was faulty, not calibrated correctly, or operated improperly by the officer, the results may be unreliable. This could lead to a challenge of the breath test’s validity, possibly resulting in the exclusion of the results from evidence.
Improper Field Sobriety Test Administration: In Florida, officers are required to administer field sobriety tests according to standardized guidelines. If the officer deviated from these protocols, the results of these tests may be considered unreliable. Weather conditions, such as rain or uneven surfaces, can also impact a person’s performance during field sobriety tests. If the tests were conducted in unfavorable conditions, the results may be inaccurate.
Medical Conditions Affecting Test Results: Certain medical conditions prevalent among Floridians, such as acid reflux, diabetes, or hypoglycemia, can cause breathalyzer or blood test results to be inaccurately high.
Inaccurate Blood Test Results: Blood tests must be handled with care. If the blood sample was contaminated, improperly stored, or mishandled, the results may not be accurate. This can be a strong defense in challenging the validity of the blood test.
No Miranda Rights: Florida law enforcement must follow specific protocols during a DUI arrest, such as reading Miranda rights. If these protocols were not followed, it could weaken the prosecution’s case and lead to the exclusion of key evidence.
No Proof of Actual Driving: In some cases, the person charged with DUI may not have been seen driving. Florida law requires proof that the individual was actually operating the vehicle while under the influence. If there’s no direct evidence, this defense could be used to challenge the DUI charge.
Police Misconduct: Any form of police misconduct, such as falsifying reports or tampering with evidence, can severely undermine the prosecution’s case. If there is evidence of such misconduct, it could lead to the dismissal of the DUI charge.
Criminal Process for Individuals Facing DUI Charges in Florida
Traffic Stop and Initial Observation
The process typically begins with a law enforcement officer stopping a driver suspected of DUI. This can happen because of erratic driving, speeding, running a red light, or involvement in an accident. Florida law allows an officer to stop a vehicle if they have reasonable suspicion that the driver is impaired or has committed a traffic violation. During the stop, the officer will observe the driver for impairment signs, which may include the smell of alcohol, bloodshot eyes, slurred speech, or difficulty in handling the vehicle.
Field Sobriety Tests
If the officer suspects the driver is under the influence, they may request that the driver perform a series of field sobriety tests. These tests are standardized by the National Highway Traffic
Safety Administration (NHTSA) and are designed to assess the driver’s balance, coordination, and ability to follow instructions. In Florida, the most commonly administered tests include:
- Walk-and-Turn Test: The driver is asked to walk in a straight line, heel-to-toe, for nine steps, turn, and return in the same manner.
- One-Leg Stand Test: The driver is instructed to stand on one leg while counting aloud until told to stop.
- Horizontal Gaze Nystagmus Test: The officer tracks the driver’s eye movements as they follow a moving object, such as a pen, to detect involuntary jerking of the eyes, which is exacerbated by alcohol consumption.
These tests are subjective and rely on the officer’s observations, which can later be challenged in court.
Preliminary Breath Test
In Florida, an officer may also request a preliminary breath test using a portable breathalyzer at the roadside. While this test is voluntary and refusal does not carry direct penalties, it can provide the officer with additional probable cause to make an arrest. The results of this preliminary test are generally not admissible in court, but they can influence the officer’s decision to arrest.
Arrest for DUI
If the officer determines that there is probable cause to believe the driver is impaired, they will arrest the driver for DUI under Florida Statutes Section 316.193. Probable cause may be based on the results of the field sobriety tests, the officer’s observations, and any preliminary breath test. The driver is then read their Miranda rights, handcuffed, and transported to the nearest jail or detention facility for booking.
Implied Consent and Chemical Testing
Once at the detention facility, the driver will be asked to submit to a chemical test to measure their blood alcohol content (BAC) or the presence of controlled substances. Under Florida Statutes Section 316.1932, by holding a driver’s license, drivers agree to take a breath, blood, or urine test if lawfully arrested for DUI. Refusal to take the test results in an automatic suspension of the driver’s license and can be used as evidence against the driver in court.
Breath Test: The most common test administered, typically using the Intoxilyzer 8000 machine, which is approved by the Florida Department of Law Enforcement (FDLE).
Blood Test: Administered if the driver is involved in an accident causing death or serious bodily injury, or if a breath or urine test is impractical.
Urine Test: Used if the officer suspects impairment by drugs, including both legal and illegal substances.
Booking and Bail
After the chemical test, the driver is formally booked. This involves recording personal information, photographing, and fingerprinting. Depending on the severity of the charge, the driver may be held in jail or released on bail. Under Florida Statutes Section 316.193, individuals arrested for DUI must remain in custody until they are no longer under the influence (BAC below 0.05) or until eight hours have passed since the arrest. Bail may be set based on the defendant’s criminal history, the severity of the DUI, and the likelihood of appearing in court. For first-time offenders, bail is usually granted unless there are aggravating factors, such as an accident or injury.
First Appearance and Setting of Bail
Within 24 hours of the arrest, the defendant must be brought before a judge for a first appearance. During this hearing, the judge will review the charges, inform the defendant of their rights, and consider the conditions for bail. The judge may also decide whether to impose additional conditions, such as surrendering the driver’s license, abstaining from alcohol, or installing an ignition interlock device.
Arraignment
The arraignment is the next formal step in the process, where the defendant appears in court to be formally charged with DUI. The defendant will enter a plea of guilty, not guilty, or no contest. This step is crucial as it determines whether the case will proceed to trial. In Florida, a not guilty plea is often entered at this stage, allowing the defense more time to review evidence and consider defense strategies.
Administrative License Suspension
Separate from the criminal court proceedings, a DUI arrest triggers an administrative process handled by the Florida Department of Highway Safety and Motor Vehicles (DHSMV). If the driver either refused the chemical test or had a BAC of 0.08 or higher, their license is automatically suspended. The driver has ten days from the date of arrest to request a formal review hearing to challenge the suspension. If the hearing is not requested or the suspension is upheld, the license is suspended for six months (first offense) or more for subsequent offenses or refusals. The driver may be eligible for a hardship license after completing DUI school and serving part of the suspension.
Pretrial Hearings and Discovery
Following arraignment, the case enters the pretrial phase, where both the defense and prosecution gather evidence, exchange discovery, and file motions. The defense may file motions to suppress evidence, particularly if there are grounds to argue that the traffic stop, arrest, or chemical tests were conducted improperly. Pretrial hearings also provide an opportunity for plea negotiations. In Florida, plea bargaining may result in reduced charges, such as reckless driving, or a negotiated sentence, which can avoid the uncertainties of a trial.
DUI Trial in Florida
If the case proceeds to trial, it may be conducted before a jury or judge (bench trial). In Florida, DUI cases involve a jury unless the defendant waives this right. The prosecution must prove beyond a reasonable doubt that the defendant was driving under the influence as defined by Florida law. Evidence presented includes the officer’s testimony, dashcam footage, results of the field sobriety and chemical tests, and any witness statements. The defense may challenge the reliability of the tests, the legality of the stop, or argue that the defendant was not impaired.
The defendant has the right to testify in their defense but is not required to do so. If the jury or judge finds the defendant guilty, the case moves to sentencing.
Sentencing
Sentencing in a Florida DUI case depends on several factors, including prior DUI convictions, the BAC level, whether there was an accident or injury, and whether any minors were in the vehicle.
Appeal Process
If the defendant believes there were errors during the trial, they have the right to appeal the conviction to a higher court. The appeal must be filed within 30 days of the sentencing. The appellate court reviews the trial court’s proceedings to determine if there were legal mistakes that significantly impacted the outcome of the case. If the appeal is successful, the conviction may be overturned, or a new trial may be ordered.
DUI Consequences
Jail
Typically, no jail time is assessed for a first DUI. For a second DUI within 5 years, the court will impose a minimum of 10 days in jail, and at least 48 hours must be consecutive. For a third DUI within 10 years, the jail time increases to at least 30 days.
Fines
In Florida, DUI fines depend on the number of convictions and circumstances. A first conviction results in fines between $500 and $1,000, while a second conviction ranges from $1,000 to $2,000. If the driver’s blood alcohol level is 0.15 or higher, or if a passenger under 18 is present, fines increase significantly. For a third conviction within 10 years, fines start at $2,000. A fourth or subsequent conviction also incurs a minimum fine of $2,000.
Probation and Mandatory Programs
For many DUI convictions, the defendant is placed on probation, which includes regular reporting to a probation officer and compliance with court-ordered conditions. One common condition is the completion of a DUI education program, which involves substance abuse evaluation and possible treatment. Failure to comply with probation terms can result in additional penalties, including incarceration or extended probation. For a first DUI conviction, the probation period cannot exceed one year. The court has the discretion to determine the exact length, but it must be within this limit.
Community Service Requirements
Probation for a DUI conviction always includes at least 50 hours of community service. If completing these hours presents a hardship due to work or location, the court may allow the defendant to pay $10 per hour in place of each hour of community service. For example, if the person cannot perform 50 hours, they might pay $500 instead.
Vehicle Impoundment or Immobilization
During probation, the court typically orders that the defendant’s vehicle be impounded or immobilized. This means the vehicle will either be physically stored or made inoperable (e.g., by putting a steering wheel lock on it). For a first DUI offense, the vehicle is usually impounded for 10 days. For a second offense within 5 years, the impoundment period increases to 30 days. For a third DUI within 10 years, the impoundment lasts 90 days.
Substance Abuse Education and Treatment
All DUI offenders on probation must complete a substance abuse education course. This course is provided by a DUI program licensed by the state. As part of the program, the defendant will undergo a psychosocial evaluation to assess if they need additional substance abuse treatment. If treatment is recommended, the defendant must complete it. Both the education course and any required treatment must be finished as conditions of probation. If the defendant fails to complete these requirements, their driver’s license may be suspended until compliance.
Ignition Interlock Devices
For certain DUI convictions, especially for repeat offenders or those with a blood-alcohol level (BAL) of 0.15 or higher, the court will order the installation of an ignition interlock device on the defendant’s vehicle. This device prevents the vehicle from starting unless the driver passes a breathalyzer test. For a first DUI offense with a BAL of 0.15 or higher, the interlock device must be installed for at least 6 months. For subsequent offenses, the device may be required for up to 2 years.
DUI Administrative License Revocation
According to Florida Statutes Section 322.2615, if someone is arrested for DUI, their driver’s license can be taken away right away, even before the court case starts. This happens if they refuse to take a breath, urine, or blood test, or if they take the test and it shows a blood alcohol level of 0.08 or more. The first refusal leads to a one-year suspension, and the second refusal leads to an 18-month suspension. This process is separate from any criminal charges and is handled by the Department of Highway Safety and Motor Vehicles.
After serving the period of suspension or revocation, the driver can apply to have their license reinstated. This process involves completing all court-ordered programs, paying any fines, and potentially installing an ignition interlock device. The driver must also provide proof of insurance. In some cases, the driver may qualify for a hardship license during the suspension period, which allows limited driving privileges for work, school, or medical appointments.
Employment Impact
A DUI conviction can be a major hurdle in the job market. Many employers conduct background checks, and a DUI may raise concerns, particularly in jobs that require driving or entail a high level of trust. For those currently employed, a DUI conviction might result in termination, especially if the job involves driving or the use of company vehicles. Certain careers require professional licenses, such as those in law, healthcare, or aviation. A DUI conviction can trigger disciplinary actions from licensing boards, leading to suspension or even revocation of the professional license, jeopardizing the individual’s career.
Auto Insurance Rates
One of the most immediate financial consequences of a DUI conviction is the increase in auto insurance premiums. In some cases, an insurance company may choose to cancel the policy altogether, forcing the individual to seek new coverage. This new coverage will likely come at a much higher cost, further exacerbating the financial strain caused by the DUI conviction.
Educational Opportunities
A DUI conviction can adversely affect a person’s eligibility for student loans, grants, and scholarships. Some educational institutions may have policies that disqualify applicants with a criminal record, including DUI convictions. Also, colleges and universities may deny admission to individuals with a DUI on their record, particularly if the institution has strict codes of conduct.
DUI Pretrial Diversion
In Florida, first-time, nonviolent offenders might have a chance to avoid a criminal conviction. Participants must complete requirements such as paying fees, attending substance abuse meetings, performing community service, and undergoing random drug and alcohol testing. Programs last 6 to 12 months and may include psychological or substance abuse treatment. Upon successful completion, the State dismisses the charges, helping participants avoid a DUI conviction and a permanent criminal record.
How Can a DUI Attorney Defend Me?
Explain Your Rights and Options: A DUI lawyer will begin by helping you understand the charges against you and what they mean. They’ll explain your rights under the law and the possible outcomes of your case. Understanding these options empowers you to make informed decisions about how to proceed.
Guide You Through the Legal Process: The legal process can be complex and confusing, especially if it’s your first time facing charges. A DUI lawyer will guide you through each step, from arraignment to trial, making sure you understand what to expect at every stage. They’ll handle all the legal paperwork, filings, and court appearances on your behalf, reducing the burden on you.
Negotiate on Your Behalf: In many DUI cases, there is room for negotiation, whether it’s with the prosecutor or during plea bargaining. An experienced DUI lawyer can negotiate the best possible terms for you. This could include reduced charges, lower fines, or alternative sentencing options.
Investigate the Circumstances of Your Arrest: A DUI lawyer will thoroughly investigate the circumstances surrounding your arrest. They’ll review the police report, examine the evidence, and interview witnesses if necessary. By scrutinizing the details, they can identify any inconsistencies or errors in the process that could work in your favor.
Help Minimize the Impact on Your Life: A DUI conviction can have significant consequences, including fines, license suspension, and even jail time. A DUI lawyer will work to minimize these impacts, seeking to protect your driving privileges, reduce fines, or avoid jail time. They’ll also help you understand and manage any additional consequences, such as mandatory DUI education programs or community service.
Provide Emotional Support and Reassurance: Facing a DUI charge is stressful, and the uncertainty can take a toll on your mental well-being. A DUI lawyer provides emotional support throughout the process. They’ll reassure you, keep you informed, and work tirelessly to achieve the best possible outcome.
Vehicle Searches
The Fourth Amendment protects against unreasonable searches and seizures, meaning police generally need a warrant to search an individual’s property. However, when it comes to vehicles, the rules are a bit different. Police can search a vehicle without a warrant if they have a good reason (probable cause) to believe it contains illegal items or evidence of a crime. This is because cars can move quickly, and waiting for a warrant could mean losing the chance to find evidence. Police also have less strict rules for searching vehicles because people don’t expect as much privacy in their cars. If officers think someone in the car might be dangerous, they can do a quick pat-down for weapons. However, searching passengers or their belongings usually requires specific reasons to believe they are involved in a crime.
DUI at a Military Base
A DUI on a military base is treated seriously and can result in both civilian and military penalties. Military personnel caught driving under the influence face consequences under Florida law, like fines, jail time, and license suspension, as well as military law under the Uniform Code of Military Justice (UCMJ). The UCMJ can lead to additional punishments such as court-martial, reduction in rank, loss of pay, and even discharge from the military. A DUI conviction can also affect a service member’s career, security clearance, and future assignments.
Additional Resources
Florida Statutes Section 316.193 – This Florida statute addresses the legal consequences of driving under the influence (DUI) in Florida. It covers the penalties for first-time and repeat offenders, including fines, imprisonment, and the mandatory installation of ignition interlock devices. The statute also covers the additional penalties for cases involving high blood alcohol levels, minors in the vehicle, and accidents causing serious injury or death.
Florida Administrative Suspension Laws – The Florida Administrative Suspension Laws are enforced by the Department of Highway Safety and Motor Vehicles. These laws govern the automatic suspension of a driver’s license following a DUI arrest, even before a court conviction. The suspension periods vary based on the offense, such as the refusal to take a breath test or driving with a blood alcohol level above the legal limit.
DUI and IID – The DUI and IID page, managed by the Florida Department of Highway Safety and Motor Vehicles, provides information on the requirements for installing an IID after a DUI conviction. This device prevents a vehicle from starting if the driver’s breath alcohol level is above the set limit. The page also offers details on how to comply with Florida’s DUI laws, including program participation, monitoring, and the steps required to regain driving privileges after an offense.
Licensed DUI Programs in Florida – The Licensed DUI Programs in Florida are overseen by the Florida Department of Highway Safety and Motor Vehicles. These programs offer educational courses required for DUI offenders to meet legal and licensing obligations. There are two levels of courses: Level I for first-time offenders and Level II for repeat offenders. The courses include classroom instruction and may require additional treatment for those with multiple offenses.
Hire a Lawyer for DUI Defense in Brevard County, FL
If you or a loved one have been charged with a DUI in Central Florida, you need to contact an experienced DUI defense attorney immediately. A DUI conviction can dramatically change your life for the worse.
Contact Germain Legal by calling (321) 775-3559 or submit an online form today to start building your DUI defense.
Mark Germain provides DUI defense to clients in Brevard County, Indian River County, Volusia County and Osceola County and the cities of Melbourne, Palm Bay, Titusbay, Vero Beach, Gilford, Sebastian, Deltona, Daytona Beach, Port Orange, Kissimmee and Poinciana.
