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iStock_duilMany people go through their entire lives without having contact with a law enforcement officer or the criminal justice system. Sometimes a few decisions combined with a few random events results in an encounter with law enforcement that results in a DUI investigation. A DUI arrest will affect a person’s life in several ways.

When a person is arrested for DUI in Florida, two separate proceedings can be commenced against them. One proceeding is an Administrative action against their driving privilege, and the other is a Misdemeanor Criminal action in County Court:

A. Administrative Proceedings – In most DUI investigations, an individual is asked to submit to a blood, breath, or urine test. How they respond to that request, and what that test will show could result in the suspension of their driving privilege:

a) Refusal of a chemical test – If a person refuses to submit to a blood, breath, or urine test, the Department of Highway Safety and Motor Vehicles (D.H.S.M.V.) will suspend their driver license immediately for a period of twelve (12) months. However, if a person refuses a second or subsequent time their driving privilege is suspended immediately for a period of eighteen (18) months.

b) If you submit to a breath test and you have two breath results at or over .08%, your driving privilege will be suspended immediately for six (6) months.

Either way, if this is your first offense (or no prior convictions), recent changes in Fla. Stat. §322.2615 have given you an important choice. You must choose one of two ways to deal with your pending Administrative Suspension:

1) You can challenge that Administrative Suspension by requesting a Review Hearing. By requesting a review hearing, you request the D.H.S.M.V. to review the circumstances surrounding your arrest and refusal/submission to a breath, urine, or blood test. Until the recent change in the law, the vast majority of lawyers would request a Formal Review Hearing on every new case that came in their door. Formal Review Hearings must be requested within ten (10) days of an individual’s arrest at your local Bureau of Administrative Reviews, otherwise, they are considered as “waived”. Once a Formal Review Hearing is requested, it scheduled within thirty (30) days. During the thirty (30) day period of time, a temporary permit is issued to the motorist so they can drive for business purposes, while their hearing is pending. If you prevail in a Formal Review Hearing, your driving privilege is reinstated pending the disposition of your case in Criminal Court. If you do not win, your suspension stands, and you must begin a “hard suspension” period before you can qualify for a hardship reinstatement of your driving privilege. This “hard suspension” period will depend upon the type of suspension. If you were suspended for a test over .08% there is a thirty (30) day “hard suspension”. For refusal cases, it is a (90) day “hard suspension.

2) If you wish to obtain a Hardship Reinstatement immediately, and you aren’t concerned with an entry associated with a DUI arrest on your driving record, you may file a “Waiver of Administrative Hearing” form with the local Bureau of Administrative Reviews with proof of enrollment in DUI School within ten (10) days of your arrest. At that time you can immediately sit for Hardship Reinstatement Hearing. You must also have proof of enrollment in a State Approved DUI school in order to sit for such a hearing. It is important to note that you may not receive a Hardship Reinstatement for an Administrative Suspension for Refusal of a Blood, Breath, or Urine test, if you have been previously suspended for refusal.

Individuals who have had a prior conviction for DUI (or prior suspension for Refusal) will only be able to avail themselves of the first option.

B. Criminal Proceedings – D.U.I. charges are brought in Felony and Misdemeanor courts throughout Florida. Although the decision as to what charges are brought against a person is made by the Office of the State Attorney, Fla. Stat. § 316.193 lays out specific guidelines for which charge is appropriate, and what minimum or maximum sentences are applicable in a given case.

1) An individual is only charged with a Felony DUI under one of four circumstances:

a. DUI that is the proximate cause of a traffic crash resulting in death.
b. DUI that is the proximate cause of a traffic crash resulting in a serious bodily injury.
c. Third offense DUI where any two prior convictions are within ten years of each other.
d. Fourth offense DUI.

2) An individual is charged with misdemeanor DUI under all other circumstances. Mandatory sentencing alters depending on the amount and spacing of priors.

a. First Offense DUI carries a minimum mandatory sentence which differs based upon the motorists alcohol level based upon a breath or blood test. The minimum sentence includes:

i. Five Hundred Dollar ($500.00) fine plus court costs (approximately a total of $950).
ii. Twelve (12) Months probation (there will be a cost of supervision).
iii. Fifty (50) hours of community service.
iv. Level I DUI school (through a state approved DUI program/school with an evaluation and counseling if necessary).
v. Ten (10) day motor vehicle impoundment or immobilization.
vi. Six (6) month Driver License Revocation. (hardship restoration is available through the D.H.S.M.V. immediately if you complete DUI school. A reinstatement hearing and payment of fees is required).

…and if you have two tests at or over .150%…

vii. An extra Five Hundred Dollar ($500.00) fine.
viii. Six (6) month ignition interlock requirement on any reinstatement of your driving privilege (not a condition of probation).

Oh, and in case you didn’t have an excessive amount of insurance on the date of your arrest…

ix. The requirement of a FR – 44 insurance policy for three years after your reinstatement.

IT IS IMPORTANT TO NOTE: that despite belief to the contrary, amendments of DUI charges to Reckless Driving are not easy to obtain. State Attorney’s Offices throughout this state take DUI charges as serious matters, and their assistants will not consider an amendment to Reckless Driving unless the circumstances surrounding the case call for it. These circumstances may be based upon the unique facts of the case, or they may arise during the litigation of the DUI case in court. Since these circumstances aren’t easily apparent, the assistance of an experienced attorney is essential to bring them to light.

b. Second offense DUI has sentencing depending on when the prior conviction occurred and the result of any alcohol tests. If the second offense occurs more than five years prior to the prior offense the minimum sentence consists of:

i. One thousand Dollar ($1,000.00) fine plus court costs.
ii. Twelve (12) Months probation.
iii. Level II DUI school.
iv. Thirty (30) day motor vehicle impoundment or immobilization.
v. Six (6) to twelve (12) month Driver License Revocation. (No hardship restoration).
vi. One (1) year ignition interlock requirement on any reinstatement of your driving privilege (not a condition of probation).

vii. Although it is not specifically in the statute, courts have exercised the discretion to require you to complete fifty (50) hours of community service in addition to this sentence.

…and if you have two tests over .150%…

viii. An additional One Thousand Dollar Fine.
ix. An additional One (1) year ignition interlock requirement (total of two (2) years).

…and if the second offense is within five years of a prior conviction…

x. A minimum mandatory term of imprisonment of ten (10) days in your local county jail.
xi. A five (5) year revocation if your driving privilege (no right to hardship restoration for at least one (1) year).

IT IS IMPORTANT TO NOTE: In some Florida counties, Judges and State Attorney’s take multiple DUI allegations so seriously that they will still demand a jail sentence from a Motorist, even if it is not required by law. You should check with attorneys in your respective counties for local policy and custom.

c. Third offense DUI not chargeable as a Felony carries a similar minimum sentence as a second offense DUI with a higher fine and interlock requirement.

NOTE: If the State Attorneys and Judges in your county ask for jail sentences on any second offense DUI, chances are that they will ask for jail sentences on any third offense DUI as well.

PLEASE ALSO NOTE: In some circumstances, a State Attorney’s Office may not charge motorist with a Felony even if the case falls within the criteria for a Felony charge. If you are only charged with a Misdemeanor DUI for a third offense within ten (10) years of a prior conviction, you should expect a mandatory minimum jail sentence of thirty (30) days and a mandatory minimum ten (10) year driver license revocation (possible hardship reinstatement after two years).

Rick Silverman - Traffic Attorney
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