Driving Under the Influence (DUI)
Anyone arrested for DUI will be facing the following:
- Administrative driver's license suspension proceedings; and
- Criminal prosecution
A. Administrative Suspension
Effective October 1, 1991, the "Florida Administrative Suspension Law" went into effect. Essentially, this law gives police officers via the Department of Highway Safety and Motor Vehicles," the authority to immediately seize and suspend a person's driver's license. The length of the suspension will be according to one of the following:
- One (1) year for a REFUSAL
If after being arrested for DUI, the motorist refuses to submit to a breathalyzer test, the suspension shall be for one year. If this is a second refusal by the motorist, the suspension is for eighteen (18) months, or;
- Six (6) months for DUBAL (Driving with Unlawful Blood Alcohol Level)
In this scenario, the motorist does not refuse the breathalyzer but instead after submitting to the breathalyzer test, and the test results reveal a blood alcohol level of .08 percent or higher. However, if the driving privilege of the motorist has been previously suspended as a result of a DUI, the suspension is for one (1) year.
Whether it is a REFUSAL OR DUBAL, the arresting officer will immediately seize the motorist's driver's license. If otherwise eligible, the DUI citation will operate as a driving permit which will allow the motorist to drive until midnight of the tenth (10th) day following the date of arrest. After this time, the motorist may not lawfully drive, until and unless a "hardship license" is obtained.
The motorist has the right to a review of this administrative suspension by filing a request for a review within ten (10) days following the date of arrest. The Bureau of Administrative Review will schedule a hearing within thirty (30) days of the request. If eligible, a hardship permit will also be issued which allows limited restricted driving for a time period up to the time of the Formal Review hearing and ten (10) days thereafter. This driving is limited to:
Driving limited to any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes.
The Division of Driver's Licenses has also interpreted this license to include driving to
the grocery store.
A hardship license will not be given to anyone who has been convicted two or more times of DUI, or whose license has been suspended two or more times for refusal to submit to breath/blood test.
There are several things that must be clearly understood about the administrative hearing. First, the hearings are not conducted by judges trained in the law. Instead, hearing officers, i.e., employees of the Department of Motor Vehicles, conduct the hearings. Secondly, the issues to be determined are limited and the Rules of Evidence are relaxed. In the case of a REFUSAL, the issues are whether the motorist was lawfully arrested for DUI, and thereafter unlawfully refused to submit to a breathalyzer test. In the case of a DUBAL, the issues are whether the motorist was lawfully arrested, and thereafter submitted to a breathalyzer test which resulted in breathalyzer test readings in excess of .08 percent. Lastly, unlike criminal prosecution, the burden of proof is not proof beyond a reasonable doubt, but proof by a preponderance of the evidence.
Thus, because of these procedures, most suspensions are sustained by the hearing officer absent some technical violation, or failure of the officer to appear. Nonetheless, the hearing does provide an opportunity for the attorney to assess the strengths and weaknesses of the client's case.
In the event that the administrative suspension is sustained, the driver may request a "hardship hearing." A hardship hearing is to hopefully obtain a restricted hardship driving permit that will enable the motorist to drive, for limited purposes only, during the suspension period. However, no guarantees are made whether a hardship driver's license will be issued by the Department of Driver's License.
In order to be eligible for a hardship license, the motorist will be required to produce at the hardship hearing:
- Application for hardship license;
- Proof of enrollment in the approved DUI school;
- A certified, hand written court record obtained from the Clerk of Court of the motorist's previous thirty (30) day driving record.
If ultimately, you are convicted of DUI, or plead guilty to DUI, in order to have the hardship license continue during the DUI suspension, you will be required to produce items 1 and 3 noted above, plus a certified copy of the final court disposition and proof of completion of the DUI school. Again, no guarantees are made as to whether a hardship license will be issued.
If a hardship license is awarded, and in most "first time offender" cases they are, the driver is required to pay $115.00 administrative fee, $60.00 DUI revocation fee, $35.00 suspension fee, and a $10.00 duplicate fee. Additionally, the motorist will be required to submit to any eye test, and a written roadside test.
For all arrests after July 1,1995, hardship licenses for those who are eligible will be granted only: 1) in cases of REFUSAL, ninety (90) days after expiration of the ten (10) day permit following arrest or expiration of hardship license granted through rendition of Formal Review Order; 2) in cases of DUBAL, thirty (30) days after expiration of the ten (10) day permit following arrest or expiration of hardship license granted through rendition of Formal Review Order. If a Formal Review is granted, a temporary driving permit will be issued and the thirty (30) or ninety (90) day suspension will begin after the expiration of the temporary driving permit. In short, there is a potential period of time that a driver will not have any driving privileges following a DUI arrest.
Again, all of these proceedings are conducted independent of the criminal case. Even if the criminal charge of DUI is subsequently dropped, dismissed, or the driver is found not guilty, and the administrative suspension will remain in effect.
B) Criminal Prosecution
In addition to the administrative suspension of your driving privileges, a motorist arrested for DUI also faces a criminal prosecution. Anyone charged with DUI has the right to a jury trial, or a non-jury trial. The penalties of a DUI conviction vary based upon the circumstances and any prior convictions.
Usually a jury trial is requested. The first court hearing is called a Case Disposition. Unless otherwise notified, the driver/client does not have to be present. At this hearing the State Attorney provides all police reports, witness list and notices of any other evidence that the State will attempt to use at trial. Also, a plea offer is usually extended. Another Case Disposition may be scheduled to allow the driver/client and the attorney time to review all materials, and perform any necessary investigation. Once all investigation is done the case is set for Calendar Call. Calendar Calls are typically scheduled on Friday mornings, whereupon the judge is told the case is either ready for trial or that a plea bargain has been worked out. If the case is going to trial, it usually will start sometime the week following Calendar Call.
If the case goes to trial, or a guilty/ no contest plea to DUI is entered, the driver/defendant's driver's license will be immediately suspended, including any hardship licenses. Accordingly, the driver/defendant should make proper arrangements to be driven to court on the designated date. If eligible, driver/defendant can reapply for a hardship license with proof of DUI school completion.
A typical sentence for a first offense DUI involves:
- one (1) year probation, wherein you report once a month to a probation officer, and pay a monthly supervision fee of $50.00;
- $250.00 fine, plus court costs, surcharges, for a total of $675.00;
- fifty (50) hours community (volunteer) service through Palm Beach County Community Service Office with a $10.00 fee;
- attend and complete DUI school and any recommended treatment;
- restitution if applicable;
- six (6) months suspension of driving privilege with possibility of hardship permit once DUI School has been completed, and the individual is otherwise eligible. However, no guarantee is made that a hardship license will be issued. It is up to the Division of Driver's License and not the court;
- attend one (1) Victim Impact Session;
- pursuant to Florida Statute 316.193(b)(d), the Court will order the vehicle driven by the offender at the time of the offense, impounded or immobilized for a period of ten (10) days for a first DUI. A $75.00 fee is required;
- no possession or consumption of alcohol with random testing.
Again, this is the very minimum disposition for a first offense DUI. If there are aggravating circumstances to the offense, i.e., accident, high blood alcohol level, prior DUI convictions, then the penalties, i.e., fines, jail time, can be greater. Additionally, some judges impose a jail sentence even for the first offenders.
This information provided herein is to provide a general overview of the procedures involved with a DUI arrest. Each case is different, and nothing stated herein should be understood as "automatically" applying to a particular case.
Ignition Interlock Device
Effective July 1, 2002, courts shall order the mandatory placement at the convicted person's sole expense of an "ignition interlock device" for the following offenses:
- a first conviction for DUI if the blood alcohol level is .20% or higher, or if a minor was in the car. The device must be installed for up to six (6) months.
- For a second DUI conviction, regardless of when the first DUI conviction occurred, the device must be installed for at least one (1) year;
- For a second DUI conviction, regardless of when the first conviction occurred, and if the blood alcohol level is .20% or higher, or a minor was in the car, the device must be installed at least for two (2) years;
- A third DUI conviction, regardless of when the two (2) priors occurred, the device must be installed for at least two (2) years.
Simply explained, an ignition interlock device is a hand held device that attaches a breath alcohol analyzer to a vehicle's ignition system. Before the car will start, the driver must provide a breath sample into this cellular phone size device. The vehicle will not start if the driver's blood alcohol level is in excess of .05% or as otherwise specified by the court, i.e., even a lower blood alcohol level. The initial start is followed within a few minutes with what is known as a "rolling retest." This requires the driver to give a second breath sample. If the sample is not given or the blood alcohol level registers in excess of .05%, the vehicle's horn will sound, the lights will begin flashing, but the car will not be shut off. All readings will be recorded in the interlock's computer memory by the date, time and results. Any attempt to bypass, circumvent, or tamper with this device is similarly recorded.
The cost of installing and monitoring of the device will be at the expense of the offender. The current fees are $70.00 for the installation of the ignition interlock device in each vehicle; and $67.50 per month for program monitoring fees.
The effective date for installation of the ignition interlock device begins upon reinstatement of the person's driver's license.