Florida DUI/Drunk Driving FAQ
What is "blood alcohol level"
Blood alcohol level (BAC) is a term used to describe the level of alcohol in the bloodstream of a person arrested for drunk driving. It is evidence of that offense. The most common method of determining BAC is through a breath test, although blood and urine testing is also done. If the level is found to be at or over the established legal limit, the test results can establish a presumption of impairment.
Can I refuse a Breathalyzer, or breath test?
Although the answer can vary by state, in many cases such a refusal is itself a criminal violation subject to stiff penalties. In addition, if the case against you is ultimately proven, the penalties for the refusal may be beyond those for the offense of drunk driving alone. In some states, refusal to submit to a breath test will result in the loss of your driver license.
Are breath test results always accurate?
A defendant in a drunk driving case may be allowed to challenge the scientific accuracy of Breathalyzer tests in general, whereas others may be allowed to challenge the particular circumstances of a test. Challenges to test results have been successful for a variety of reasons, such as improperly calibrated equipment or inadequately trained officers.
Do I have a choice of chemical tests? Which should I choose?
Generally, you do not have a choice of tests. And in some instances the officer will request you take more than one test. For example, if you take a breath test and your blood alcohol level indicates an amount well below the legal limit, the officer may request a urine and/or blood sample to check for other drugs in your system. 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 method however, is urinalysis.
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/she 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 Florida "implied consent" law - that is, your legal obligation to take a chemical test and the results if you refuse. This can affect the suspension of your license.
What if I lose my license but continue to drive anyhow?
If a person whose license has been revoked or suspended due to drunk driving chooses to drive without a valid license and is pulled over, he or she stands to suffer more serious consequences, including fines and imprisonment. The more prudent course of action is to rely on friends and family for rides or use public transportation.
How can I get automobile insurance after a drunk driving conviction?
Although your rates will likely be higher, your insurer may keep you on even after a conviction, and a subsequent clean driving record will result in lower rates in the future. If your insurer drops you as a result of the conviction, another insurance company may be willing to accept the risk; in fact, some companies specialize in offering insurance to drivers who have been convicted of drunk driving, but of course the rates are much higher.
What is the punishment for drunk driving?
Drunk driving carries serious penalties. Although the court may go easier on first-time offenders, even in first-offense cases the possible sentences include stiff fines and jail time. If the circumstances warrant it, however, the court may choose less restrictive options, including probation, community service, or even mandated AA attendance or the like. For subsequent offenses, the likelihood of imprisonment increases, and in all cases, the loss of driving privileges, at least temporarily, is almost guaranteed.
How can I get to work if I cannot drive?
Many drunk driving offenders are forced to rely on public transportation or rides from friends and family to get to and from work during periods of license suspension or revocation. In addition, they may be able to obtain work permits that enable them to drive just to and from work; if caught driving outside of those parameters, however, further penalties will be imposed.
What is the best way to beat a drunk driving charge?
The best way to avoid being convicted of drunk driving is to not drive drunk in the first place. Use a designated driver, call a taxi, call a friend, or just don't drink alcohol if you are going to need to drive within a few hours. For some people, in some circumstances, even one drink can impair their driving abilities, and after having a few drinks is not the time to decide whether you're capable of driving (since you will most likely believe that you are even when you are not).
Do I have a right to an attorney when I am stopped by an officer and asked to take a field sobriety test?
As a general rule, 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.
What should I do if I am asked to take a field sobriety test?
There is a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus (following a light with eyes to the left and right), alphabet recitation, modified posture of attention, fingers-to-thumb, hand pat, etc. Most officers 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 inevitably "fails." Thus, in most cases a polite refusal may be appropriate.
What obligations will I have as the DUI proceeds through the Court System?
With the exception of the Formal Review Hearing, your case will proceed through the Criminal Justice System in the same manner as other criminal cases. These general Court Hearings include: the Arraignment, the Pretrial, and if need be, a Trial.
What is a Formal Review Hearing?
If arrested for DUI and the chemical test result is .08% or greater, or if you refused to take the test, your license will be suspended for a period of time by the Department of Motor Vehicles (DMV). You are entitled to challenge this suspension by means of the Formal Review Hearing. However, this Hearing must be requested in writing and delivered to the DMV Office in Hillsborough County, no later than ten (10) days from the date of arrest. Your attorney can handle the details involved with scheduling, and be able to conduct this hearing without the need for you to attend.
This Hearing can be a valuable tool in the investigation and the defense of your case. First, it allows your Attorney to challenge the suspension of your license and, if successful, obtain the reinstatement of your license. Secondly, it permits your Attorney to interrogate Law Enforcement Witnesses in order to gain detailed knowledge concerning their observations, actions and opinions.
For what period of time can my license be suspended for DUI?
Your license can be suspended by both the DMV and the Criminal Justice System. The suspension of your license by the DMV may occur immediately after your arrest and continue while your case is pending in criminal Court. The precise period of license suspension by the DMV or the Court System is governed by a number of factors.
Can I obtain a temporary permit to drive while my license is suspended?
When you are arrested for DUI, you may be permitted to drive for the first ten (10) days. If your chemical test result was .08 or higher, you will then enter a period of "Hard Suspension" and will not be permitted to drive for any purpose for the next thirty (30) days. If you refused to take a chemical test, your license will instead be subject to a ninety (90) "Hard Suspension." These periods of "Hard Suspension" may vary in length and may be followed by a period of general suspension imposed by the DMV and/or the Court.
Other than these periods of "Hard Suspension," you may be eligible to obtain a business purpose or hardship license in order to drive while your license is subject to a general suspension. The issues regarding license suspension and eligibility for temporary permits can be confusing and should be discussed with an attorney.
Will my vehicle be impounded and what are the procedures involved?
If you are convicted of DUI, your car may be subject to impoundment. The length of time begins at ten (10) days for a first DUI conviction and increases in duration with subsequent offenses. You may be able to keep your car on your own property during the period of impoundment, provided the driver or his/her family qualifies. You should consult with an attorney to determine whether you are exempt from impoundment.
What punishment can I expect if I am convicted of DUI?
A DUI sentence can include: an adjudication of guilt, incarceration, a fine, a period of probation, a period of license suspension, the performance of community service, the impoundment of your automobile, completion of DUI Driving School, and substance abuse evaluation and counseling. Because the punishments may vary according to the evidence in your particular case and the number of prior DUI convictions, you should refer to the topic of DUI punishment located elsewhere at this site, and consult with an attorney.
Will a DUI conviction become a part of my permanent driving record?
Unfortunately a conviction for DUI automatically results in an adjudication of guilt. This means that it will become a permanent feature of your driving record and will likely affect your automobile insurance. However, in some cases the prosecutor may be persuaded to reduce the charge of DUI to a less serious offense. In that event it may be possible to avoid an adjudication of guilt and the application of points against your driving record.
What is the difference between a misdemeanor and a felony?
A misdemeanor charge is generally considered to be less serious than a felony, however, convictions for crimes involving theft, DUI, or sexual behavior can have long lasting ramifications that may affect both your record and employment.
Misdemeanor cases are handled in the County Court System and punishment may include an adjudication of guilt, a fine, incarceration in the County Jail and supervised probation.
A felony charge is considered more serious than a misdemeanor and is ranked in increasing range of severity from Third to First Degree. Felony crimes are handled in Circuit Criminal Court and punishment can include an adjudication of guilt, significant terms of supervised probation or house arrest, lengthy terms of incarceration in State Prison and significant fines.
What is a Diversion Program and is it the best solution?
A Diversion Program, such as Pretrial Intervention (PTI) permits you to resolve your case with a form of probation. Once you have successfully completed the program, the Court will officially dismiss your charges. Acceptance into a Diversion Program is generally in the discretion of the prosecutor. Diversion Programs are limited to specific types of crimes and are considered on a case by case basis. It is important that you consult with an attorney in order to determine whether you are eligible for such a program and that whether it represents the best solution for your case.
What can be done about a Violation of Probation?
A Violation of Probation is generally initiated by your Probation Officer and may result in a warrant for your arrest. The warrant may block your ability to post bond. It is therefore important to consult with an attorney as soon as you learn that a warrant has been issued for your arrest. An attorney may be able to arrange for your surrender and obtain your release on your own recognizance (ROR) or a low bond.
Violations may occur as a result of a new crime or for "technical" reasons (e.g. failure to report, failure to pay restitution, change of employment or residence without permission). In general, you face a more severe punishment upon conviction and may receive house arrest or incarceration in place of your original probation. It is important that you consult with an attorney in order to evaluate both the potential risk and determine a strategy for the successful resolution of the problem.
Can my records be sealed or expunged?
It may be possible to seal or expunge your prior criminal record. However, there are some fundamental rules which govern the approval process. If you have ever been adjudicated guilty of any criminal offense, regardless of time or jurisdiction, you are not permitted to seal or expunge any record. In addition, there are certain prohibitions and distinctions between sealing and expungement which may limit or entirely prohibit these remedies. The law can be somewhat confusing and consultation with an attorney is recommended to determine your rights.
If I simply intend to plead guilty, why do I need a lawyer?
Even if you are guilty of drunk driving, it is imperative that you seek the advice of experienced counsel so that you can minimize your sentence and maximize your opportunities to move ahead toward a brighter future. Criminal defense attorneys are needed to equalize the balance of power between the defendant and the prosecution and to ensure that the constitutional rights that are guaranteed to all criminal defendants, whether guilty or not, are preserved.
What defenses are there in a DUI case?
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:
- Driving: Intoxication is not enough; the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his/her being the driver of the vehicle
- Probable cause: evidence will be suppressed if the officer did not have the legal cause to a) stop, b) detain, and c) arrest. Sobriety roadblocks present particularly complex issues.
- Miranda: incriminating statements may be suppressed if warnings were not given at the appropriate time.
- Implied Consent Warnings: if the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may invalidate a DHSMV license suspension based upon a refusal to provide a breath/blood sample.
- "Under the Influence": the officer's observations and opinions as to intoxication can be questioned-the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing." Witnesses can also testify that you appeared to be sober.
- Blood Alcohol Concentration: there exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
- Regulation of Blood Alcohol testing: the prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
- License suspension hearings: a number of issues can be raised in the context of an administrative hearing before Florida's Department of Highway Safety and Motor Vehicles.
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. A qualified attorney 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.
What are my rights in a Florida DUI/DWI?
- You have the right to enter a plea of not guilty and have a trial either to the court or to a jury of six.
- You have the right to be represented by your attorney throughout the trial and at all proceedings leading up to the trial.
- You are presumed innocent of the charges pending against you, and that presumption of innocence will remain with you throughout the trial until the prosecution presents evidence to prove you guilty beyond a reasonable doubt.
- At the trial you have the right to confront the witnesses called to testify against you and to cross-examine those witnesses.
- You have the right to present evidence in your own defense and to compel the attendance of witnesses by subpoenas issued by the Clerk of the Court.
- You have the right to remain silent at the trial or testify in your own defense. If you choose to remain silent, your silence cannot be used against you.
- After the trial is over, you have the right to appeal to a higher Court to review the judgment of the Court.
