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Misdemeanor DUI

A person is guilty of driving under the influence if the person is driving or in actual physical control of a vehicle within this state while under the influence of alcohol, any chemical substance set for the in § 877.111, or any substance controlled under chapter 893 of the Florida Statutes when affected to the extent that the person's normal faculties are impaired or has a blood or breath alcohol level of 0.08 or greater.

A first offense is punishable as follows: fines of $250-$500; driver's license revocation of 6 months to one year; imprisonment of not more than six months; 10 day vehicle impoundment or immobilization; mandatory reporting probation not to exceed one year. Mandatory conditions of probation include attendance at an approved alcohol safety education class with a substance abuse evaluation and any treatment recommended, not less than 50 hours of community service.

A second offense (include any out-of-state convictions), if the date of offense is outside 5 years of the prior conviction, is punishable as follows: fines of $500-$1000; drivers' license revocation of 6 months to one year; imprisonment of not more than nine months; 30 day vehicle impoundment or immobilization; mandatory reporting probation with the same conditions.

If the date of the offense for the second conviction is within 5 years of the date of the prior conviction the person is subject to a mandatory 10-day jail term and a 60 month driver's license revocation.

A third offense (including out-of-state convictions), if the date of offense is outside 10 years of a prior conviction is punishable as follows: fines of $1,000-$2,500; driver's license revocation of 6 months to one year; imprisonment of not more than one year; 90 day vehicle impoundment or immobilization; mandatory reporting probation with the same conditions.

If the date of the offense for the third conviction is within 10 years of the date of a prior conviction, the person can be prosecuted for felony DUI. (See below)

If the person is convicted and has an alcohol level of .20 or more there was a person 18 years or younger in the vehicle, the above fines are doubled and the maximum imprisonment for a first offense is 9 months and 12 months for a second offense.

A DUI causing non-serious injury is a first degree misdemeanor.  

Felony DUI – Prior Convictions

If a person has three prior convictions for DUI (including out-of-state convictions) the person may be prosecuted for "Felony DUI." It is a third degree felony, level 6 offense, subject to five years in the state prison. Florida's Sentencing Guidelines apply. The mandatory minimum fine is $1,000 and cannot exceed $5,000. A fourth or subsequent conviction will result in a mandatory permanent driver's license suspension.

As of July 1, 2002, a third conviction for DUI is a felony if the date of the current offense is within 10 years of the second conviction.

Felony DUI – Serious Injury or Death

If a person is DUI, as described above, and causes or contributes to the cause of a crash involving serious injury, the person is subject to being charged with a DUI - Serious Injury. It is a third degree felony, level 7 offense, subject to five years in the state prison. The Florida Sentencing Guidelines apply. The maximum sentence is five years in the state prison. The minimum mandatory sentence is calculated based on various factors including victim injury points. The mandatory fine is the same as a "Felony DUI." There is a mandatory minimum three year driver's license revocation.

If the person is DUI, as described above, and causes or contributes to the cause of a crash involving death, the person is subject to being charged with DUI-Manslaughter. It is a second degree felony, level 8 offense, subject to 15 years in the state prison. The Florida Sentencing Guidelines apply. Without going into the details, a single death carries a minimum of approximately 10 years in prison. There is a mandatory permanent revocation of the driver's license.

Administrative Suspension Information

Administrative Suspensions come two ways:

1.      Refusing to take a breath test, and

2.      Having an unlawful breath/blood alcohol level (UBAL)

Suspension begins on the date of the arrest in both cases.

Length of Suspensions

            Refusal suspensions

                        First refusal – 12 months
                        Second / subsequent – 18 months

            UBAL

                        First – 6 months
                        Second / subsequent – 12 months

Uniform traffic citation is a 10 day permit as longs as the person has a valid DL. If the driver's license is already suspended for any reason in this or any other state, the hard suspension begins on the day of the arrest. Hardship availability is subject to the rules below.

Two types of Hearings at DMV

1.  Formal Review hearing - to determine if the suspension is lawful; hearing must be requested within 10 days of arrest or waived.

2.  Hardship hearing - to see if the DMV will allow them to drive on a limited basis

Hardship driving availability

If a formal review is requested on either suspension, assuming the driver's license is otherwise valid, the DMV will allow driving on a limited basis until they have made a decision to either allow the suspension to stand as lawful or set aside the suspension. The DMV will forward the temporary permit to us, along with the date for the Formal Review hearing. We will then forward it to the driver.

This permit will not be issued by the DMV if the driver is suspended for any reason in this or any other state. If that is the case, the hard suspensions discussed below will take affect on the 11^th day after the arrest.  This generally occurs when the police allow the 10 day permit because they are not aware of any other suspensions on the day of the arrest because the computers were down or they didn't check out-of-state suspensions.

If the driver does not request a Formal Review within the 10 days after their arrest, the hard suspension begins on the 11^th day after the arrest. 

If, after the Formal Review hearing, the DMV determines that the police have not provided them with enough information to support the suspension they will forward the driver's license back to us for the driver to pick up. The suspension is then taken off their record. Hardship driving is not necessary at this point since the suspension has been removed from the record.

If the DMV determines that the police have provided enough information to support the suspension, a period of hard suspension will begin as of the effective date of the order which is usually the date the temporary permit expires (that is the one forwarded to the driver after the Formal Review was requested).

In the case of a UBAL suspension (regardless of whether first or not), the hard suspension is 30 days. That means that no driving is allowed. Hardship availability begins on the first day after the hard suspension ends, assuming the driver is otherwise eligible.

In the case of a first Refusal suspension, the hard suspension if for 90 days. Hardship availability begins on the first day after the hard suspension ends, assuming the driver is otherwise eligible.

In the case of a second or subsequent Refusal suspension, the hard suspension is for the entire 18 months. No hardship driving at all for the entire suspension period.

A driver is not eligible for a hardship license if they have two prior DUIs, two prior refusal suspensions or their driver's license is suspended for any reason in this or any other state. The driver must not drink or drive during the hard suspension and show the DMV they are worthy of being granted the privilege of having their driver's license back on a limited basis.

The Formal Review hearing

Florida statutes allow the arresting officer to "summarily suspend" the driver's license of a person who is arrested for DUI and, either, refuses a breath, blood or urine test or who takes a breath or blood test and has an illegal blood/breath alcohol level. The person whose license is suspended may file a request with the DMV within 10 days of the suspension to have them review that suspension.

In the case of a Refusal suspension, the issues to be decided by the DMV are:

• Did the officer have probable cause for the arrest?

• Was the arrest lawful?

• Did the officer advise the driver of the suspension penalties properly?

• Did the driver refuse the test?

In the case of a UBAL suspension, the issues to be decided are:

• Did the officer have probable cause for the arrest?

• Was the arrest lawful?

• Did the driver’s alcohol level exceed the legal limit?

 Some rules that apply

• All issues are decided by a Hearing Office of the DMV. In your criminal case, all legal issues will be decided by a judge. If your case goes to trial, a jury will decide whether you are guilty or not guilty of the DUI.

• All issues must be proven by a preponderance or greater weight of the evidence. If your case goes to trial, the DUI must be proved beyond a reasonable doubt.

• The arresting or testing officer does not have to appear at the hearing unless subpoenaed by the driver.

• Whatever is decided by the DMV has no bearing on the criminal case of DUI pending against you in County or Circuit Court. That means that the DMV could find insufficient evidence to support the license suspension and a jury could find you guilty of the DUI. The DMV could find sufficient evidence to support the suspension but the jury could find you not guilty of the DUI.

What we do to prepare for the Formal Review

Shortly after the request for a Formal Review, we make a request for all documents filed with the DMV by the arresting officer to support the suspension. These documents are reviewed by all the lawyers in the firm to determine if the suspension can be supported based on what has been provided the DMV. Remember two heads are better than one. In this case there are four experienced lawyers reviewing all the documents. In case of a dispute regarding the better plan of action, all ties are broken by Mr. Whited.

If it is the conclusion of the group that a defense can be argued by not subpoenaing the officers, then we will not do that and make our arguments based on what is in the DMV file and any testimony we may offer.

If it is decided that we need to subpoena an officer to support a defense to the suspension, then we will do that.

If it is ultimately decided that the officer has provided sufficient information to support the suspension and we have no defense to begin with, the general plan is to subpoena the officers to see if they show for the hearing. If they fail to show and do not show just cause for their failure, the suspension will be set aside. If they show, we will take their testimony regarding the lawfulness of the stop and arrest and probable cause. Their testimony may support grounds for setting the suspension aside, and my be useful at a later date if suppression motions are filed in the criminal case.

The Interstate Driver's Compact does not apply to pre-conviction administrative suspensions. But, a non-resident of Florida may still suffer a driver's license suspension if their home state.