DUI stands for driving under the influence. It can be under the influence of alcohol. It can be under the influence of drugs. And when we say drugs, it can be either prescription medication that a person has been prescribed, or prescription medication that they took that was somebody else’s, or illegal drugs.
What is a DUI?
David: DUI stands for driving under the influence. It can be under the influence of alcohol. It can be under the influence of drugs. And when we say drugs, it can be either prescription medication that a person has been prescribed, or prescription medication that they took that was somebody else’s, or illegal drugs. It doesn’t matter, it’s still the same crime in Florida, it’s still called DUI.
David: Well some people say it’s 70 years. I tell people it stays on your record forever, and occasionally I’ve had someone want to argue with me about it. But when people come to see me who are 21 years of age or older, 70 years is forever so I’m gonna stick with my answer of forever.
David: A breath or blood alcohol concentration of .08 or above is considered above the legal limit in Florida. In fact, everywhere in the United States it is a .08 or above at this point.
David: In Florida there are two different levels of offense, depending on what your blood or breath alcohol concentration is, at the time of testing. Between a 0.08 to a 0.149, that’s what we call A DUI. 0.150 and higher is an enhanced DUI. And the difference between the two, under Florida law, is that the enhanced DUI, the penalty, the dollar fine doubles.
So for a regular DUI, it’s $500 to $1,000 fine. For an enhanced DUI with a breath test over a .150 or above, the fine is between $1,000 and $2, 000. Additionally, if your breath test is over a 0.150, there is the mandatory placement of an ignition interlock device on your vehicle that is not necessary if your breath test is below a 0.15.
David: So the first thing you should do is keep your mouth shut, because DUIs are very defendable. But, people often make that defense much more difficult by running at the mouth. And remember alcohol tends to loosen people’s lips. So it’s natural that somebody who’s been drinking wants to talk, but talking often times hurts the case far more than any other evidence that the police have gathered.
So the first thing you should do is shut your mouth. After that, cooperate with the officer. Don’t give them a hard time even though you’re not answering their questions. Be respectful. You will be asked to submit to a chemical test of your breath. In Florida, if you refuse to take that test for the first time, your license will be suspended for a period of one year, and if you’ve previously refused it will be an 18 month suspension administratively.
If you take the breath test, depending on where in the state you are, the results may or may not be admissible into evidence. In other words, you may take the breath test, blow over the legal limit, but a jury doesn’t get to hear about it because of previous court rulings.
Further, an attorney who is educated in the science of DUI may be able to keep your test results out of the evidence even if you do blow over the legal limit. If you don’t take the breath test, the state is going to argue that you didn’t take it because you knew you were guilty and you didn’t want the jury to know that.
That’s called consciousness of guilt. If you take the breath test and your attorney can get the results suppressed, or you’re in an area of the state that the results are already suppressed, the officer will be able to talk about what happened up until the point that they arrested you.
At the first opportunity, you should call an attorney. Usually that will be when you are released from jail. You have only ten days to make a decision about whether you want to fight the administrative suspension of your driving privilege or if you want to waive that right. So speaking to an attorney as quickly as possible to get guidance on that decision is a good thing to do.
Further, the sooner you can get an attorney involved in the case, the sooner they can start working on and building defenses for you so that they’re not time crunched at the last minute. That way, nothing is missed, and they have all the opportunity to turn over every stone and investigate every piece of evidence the state claims to have against you.
David: Florida has a long list of mandatory penalties for a DUI. When I say mandatory penalties, if you are convicted of a DUI, a judge cannot legally give you less than the following. The first is that you would be adjudicated guilty.
That is a formal criminal conviction on your record that can never be sealed or expunged, and with a DUI, unlike most other crimes, an adjudication of guilt is mandatory. Even on many felony offenses, the court can withhold adjudication so you don’t have a formal conviction.
But with a DUI, the adjudication of guilt is mandatory and you’re never able to seal or expunge your record once you have an adjudication of guilt. The statute says you will be sentenced to a term of probation up to 12 months, but every judge everywhere I work regularly will give you 12 months of probation.
Some will allow you to apply for early termination of that probation once you are done with all of the other sanctions. Others make you wait at least six months before you can early terminate your probation. But you still have to be done with all the other sanctions. Those sanctions include all of the following:
The DUI counterattack school, which includes an alcohol evaluation and recommendation for treatment. If you are recommended for treatment, it becomes a mandatory part of the sentence. There’s also the victims awareness program which is a class sponsored by mothers against drunk driving. 50 hours of community service. Some courts will allow you to buy out that community service at the statutory rate of $10 per hour.
Some judges let you buy it all out, some don’t let you buy any of it out, and some let you buy out a percentage of it. That’s always within the court’s discretion. There’s a minimum fine of $500, a maximum fine of $1,000. The court will also impound or immobilize your vehicle for a period of ten days.
Plus, they will suspend your driving privilege for between 6 and 12 months. And that suspension is separate from the administrative suspension that you received when you were arrested for DUI. And finally, with any criminal case in the state of Florida, there are always mandatory court costs. Those are the minimum mandatory penalties for a DUI, but not the only possible penalties.
On a first offense DUI, it is possible to go to jail depending on the facts of the case. For either, up to 180 days, up to 270 days if your breath is .15 or higher, or up to one year with property damage or injury, depending on again the facts of your particular incident.
David: Okay. So the price for DUI classes changes quite frequently. Today, on the day we’re doing this interview, the DUI counterattack school level one class is $260. It is 12 hours, depending on where you take it. You can find it in two six-hour sessions, three four-hour sessions, or four three-hour sessions. One of those 12 hours is an alcohol and substance abuse assessment of the individual, and the evaluator will determine whether or not counseling is needed.
Whether or not the individual agrees with the evaluator, if they say counseling is needed, it becomes a mandatory part of the class. And if you don’t do it, the state of Florida will suspend your driving privilege forever until you do.
The other class that people have to take is called the victim’s awareness program. That is a two hour class, which currently costs $44. Recently there’s been an online version of that class called You Impact that you can also take, but that’s a recent development, and I believe it costs the same thing. The other two classes are in-person classes.
David: DUI, DWI and OVI are all the same thing. It just depends on what state you’re in. DUI stands for driving under the influence. DWI is driving while impaired. OVI stands for operating a vehicle impaired. And that’s a term used in states like Ohio. All of those initials, all of those acronyms stand for the same crime. Different states just use different names.
David: It is possible to get DUI charges reduced or dropped. An experienced attorney educated in the science of DUI and knowledgeable in defenses available certainly can help somebody get a DUI charge reduced or dropped.
Oftentimes, DUIs are reduced to a charge called reckless driving, or sometimes careless driving. And sometimes they go away completely. Every case is dependent on the facts of that case and the way the officer conducted the investigation. Hiring an experienced attorney is important because you don’t want to hire somebody who will miss opportunities to make your case go away.
David: DUI in Florida is a criminal offense. A first-time DUI without an accident or injury can be punishable by up to 270 days in jail. With an accident without serious bodily injury, it can be punishable by up to a year in jail. And with serious bodily injury or death, it can lead to years and years spent in a prison cell.
David: In Florida, there are three different ways that a DUI can become a felony. The first is with serious bodily injury or death as a result of the driving under the influence. The second is if you get a third arrest for DUI within ten years of a second conviction for DUI. And the third is any fourth or subsequent lifetime offense of DUI. So three prior convictions.
David: Whether or not you’ll face jail time for DUI is highly dependent on two things: what county the DUI occurred in and the facts of the case.
There are some counties where it’s just not the norm to put a DUI offender in jail on a first offense. In other counties, first offenders even without unusual or aggravating factors can expect to go to jail if they go to trial and lose. The laws allows a judge on a simple DUI, on a first offense, to put a person in jail for up to 180 days.
In some cases, depending on the facts of the case, that can be as long as one year on a first time offense. On the other hand, if you cause death or serious bodily injury, jail could be mandatory based on your score sheet. So DUI can certainly lead to jail time or even a prison sentence. However, in many counties jail is unlikely on a simple first time offense.
David: There’s no such thing as an underage DUI in Florida. In Florida, if you’re driving with a breath or blood alcohol concentration of over 0.08, you can be guilty of DUI. It doesn’t matter whether you’re over or under the age of 21.
However, if you’re under the age of 21 and you have alcohol in your system with a breath or blood alcohol concentration of over 0.02 percent, you could be cited for an 02 violation. That is simply an administrative license suspension based on the fact that, being under the age of 21, you don’t have a right to have alcohol in your system at all.
And your license could be suspended, if you take a breath test and blow over a 0.02, for six months. If you refuse to take the breath test, your license could be administratively suspended for up to one year. But there is no crime of underage DUI. It is either a DUI or it isn’t.
David: Unfortunately, besides for the risk of getting arrested and going to jail, when you drive under the influence of alcohol, as everybody knows, you could be killed in an accident or cause death or serious injury to another are seriously injured and permanently injured. So, driving under the influence of alcohol can have a lasting effect on both the person who was driving and innocent people around them.
David: In the State of Florida, it is not illegal to drive under the influence of Ambien. It is dangerous, it could be deadly. But Florida lists the substances which you cannot drive under the influence of, and Ambien is not on that list.
Unfortunately, we have represented many people who are arrested for driving under the influence, of Ambien, and their test results showed and they told the officers that the only thing they had taken was Ambien. In those cases, when the only substance in their system is Ambien, the state should drop the charges.
Generally they won’t, but when you force the issue, the judge will have to dismiss the case because the state can’t meet the minimum evidentiary requirements showing that a law was broken, because it is not illegal to drive under the influence of Ambien. However, if you mix that Ambien with other substances such as alcohol, then the intoxicating effect of the combined alcohol and Ambien is illegal.
And the state can argue that it is the combined effect that is making the person impaired. So, Ambien alone, not illegal. Ambien mixed with other substances, however, can lead to a DUI conviction.
For other medication, even under a medication you have been prescribed, you can be arrested for DUI. If you know that the medication you have been prescribed impairs you, in other words, your normal faculties are altered by that medication, it is illegal for you to drive under the influence of that medication.
So for instance, if you’ve been given a prescription painkiller that makes you feel high, you can’t drive. If it impairs your abilities, slows your reaction time, you are not lawfully allowed to drive while you are taking that medication. And certainly mixing that medication with alcohol is a bad idea.
David: Florida does not make a distinction as to what is causing the impairment in a DUI case. The penalties and elements to prove the offense are the same whether it is alcohol or drugs that is impairing the individual stopped for driving under the influence.
David: Your driving privilege will be suspended if you get arrested for DUI. It will be suspended for six months if you take a breath test and blow over a 0.08. Or, if you refuse to take the test, you’ll face a suspension for a year. Further, if you refuse to take the test and you have previously refused such a test, the suspension will be for a period of 18 months.
David: The “rising blood alcohol defense” can be one way to fight DUI charges. However, in order to validly use that defense, generally an expert witness is required, which can be quite expensive.
Further, although in theory your blood alcohol content may have been rising, it also may have been falling. And if you bring in an expert to show that it was rising, you can bet that the state will bring one in to show that it was falling.
It can be a good defense. But, it’s also often not necessary in the state of Florida. The law in the State of Florida allows a presumption that your breath alcohol level at the time of testing is equal to what it was at the time of driving. So the prosecutor is not required to go back in time and show what it was at the time of driving. Certainly, if you have evidence that it should have been rising because you just finished drinking, you are allowed to present that evidence.
David: We’re often asked if a person can handle their DUI offense on their own. Well, lawyers go to law school to learn the rules of evidence. They know what is admissible and what isn’t, and learn ways to keep out evidence that the state wants to present against drivers accused of driving under the influence.
Oftentimes, an experienced attorney in DUI defense also knows about the scientific testing methods and whether or not the test given to an individual were performed properly, and, if not, should they be heard by a jury. A DUI defense attorney can help build strategies to keep evidence out of your case.
If successful in doing that, they provide the state with incentive to offer you a resolution to the case other than a DUI or force the case to be dropped before trial, because the state’s evidence has been suppressed. A person who has not been to law school, and doesn’t know the rules of evidence, doesn’t know what to look for.
There are also legal standards that each officer must meet every step of the way in a DUI investigation. The average person won’t know what to argue to get the evidence in their case suppressed. They won’t know what evidence is admissible and what evidence isn’t admissible. And could certainly lead to their own conviction by letting evidence into their trial that would not otherwise be admissible.
David: In Florida, there is a set of criteria that an individual can meet to be recognized as an expert in their field. Generally, that criteria includes a minimum amount of trials in the area of law that they’re going to be accepted as an expert or a specialist or board certified in.
It also includes a minimum number of litigated hearings and a minimum score on a test that includes both a written and practical portion. In the state of Florida right now, there are only three people recognized as board certified DUI defense experts.