A DUI, or driving while under the influence, is a crime that can be committed by anyone who drives a motor vehicle. Even the most law-abiding citizen can have a few too many drinks at a restaurant or office party, be observed weaving on the roadway, pulled over by law enforcement and charged. Even innocuous or innocent conduct can be observed by law enforcement officers who may assume that someone is impaired, despite evidence to the contrary. Besides the ignominy of being handcuffed, placed in temporary detention or jail cell and appearing in court, a DUI can have significant consequences regarding your freedom and driving record.
The Criminal Aspects of a DUI
Drunk driving is a serious crime since thousands of people are killed and maimed each year by intoxicated and impaired drivers. Police arrest thousands of motorists each year, usually after observing the physical signs of impairment or intoxication of drivers who have been stopped for either violating a traffic law or exhibiting uncertain driving conduct like weaving or swerving.
After an investigation that might include a confession of drinking to the officer, who may also have observed poor coordination by you along with slurred speech, watery eyes or confusion. An officer can ask a suspected impaired driver to perform field sobriety tests. Despite officers asking in the form of a command, drivers are perfectly within their rights to not perform any roadside testing. The field sobriety tests are scientifically suspect, and very difficult to perform, and should always be refused by the driver. In Florida, if an officer suspects that an individual is impaired, that person will be placed under arrest before any breath, blood or urine test is administered. The officer will command a citizen to perform a breath or blood test, but in Florida the tests cannot yet be physically forced on a suspect, and the person can refuse to perform such tests. If you refuse testing, your refusal can be used against you as evidence of your guilt, if you go to trial. You can still be charged with DUI even if you refuse testing.
You will be given a court date for your first appearance, or arraignment, at which you or your attorney will enter a plea of either guilty or not guilty. Most plead not guilty and another court appearance, or pretrial hearing, is scheduled for two or more weeks in the future.
Most offenders who are unrepresented by counsel enter a plea of guilty or no contest (nolo contendre), which is essentially a guilty plea. Your sentence will depend on whether this is your first DUI offense and if other aggravating factors were present. If so, the chances of you spending a certain amount of time in jail is very likely. Aggravating factors include:
Otherwise, sentences for first time DUI offenders are typically fairly uniform throughout the state, though some counties are harsher than others.
The Civil Aspect of a DUI
If you are arrested for a DUI, the officer will take your license and give you a temporary one that is valid for 10 days. You have only 10 days from issuance of this temporary license to challenge the potential suspension of your license by the Department of Motor Vehicles by an administrative review. The suspension of your driving privileges is a separate proceeding from your criminal case. To request a hearing, follow this procedure:
An informal review will undoubtedly result in you losing your license. The administrative officer will simply review any evidence you submit as well as the records from the arresting officer and BAC results.
It is always best to retain an experienced DUI or criminal defense attorney to represent you at this hearing as well as for your criminal proceeding. A formal review is conducted only before the administrative officer, but it is a trial-like setting where you can submit live testimony from yourself and others, cross-examine the officer and any witnesses the government presents and offer your own expert witnesses as well. If you have an attorney represent you, then your appearance is not mandatory. This is especially convenient if you live outside of Florida.
The issues at a DMV administrative hearing are:
Your attorney can assert that no probable cause existed for either being detained or for arresting you for DUI. If there are BAC test results, your attorney can present documentary evidence or offer expert testimony challenging the protocol used in obtaining a breath or blood sample, the accuracy of the breathalyzer, problems in the chain of evidence if blood was obtained and other arguments. If you prevail, your license will not be suspended. If not, your license will be suspended for a time dependent on the test results, if there was a refusal, a serious injury or fatality occurred or whether your license had been suspended within the past 5 or 10 years for a prior DUI.
Penalties for DUI
Other penalties: Up to 50 hours of community service, participation in a DUI class, any other recommendation by the probation department regarding alcohol or drug treatment
Second DUI Offense (Within 5 years)-Misdemeanor
If your second DUI was beyond the five year period, then you could do a day in jail or up to 9 months. Fines are from $1,000 to $2,000, but $4,000 if your BAC was 0.15% or you had a minor passenger. Your license suspension is 6 months, but 1 year if there are certain aggravating factors. Other penalties are the same.
Third DUI (within 10 years of the first DUI)—Misdemeanor
Fourth Offense-If charged as Misdemeanor
Fourth DUI-If charged as Second Degree Felony
You will be charged with a third degree felony for a fourth DUI in most cases unless your attorney moves the court to eliminate one of the prior convictions. DUIs from another state, or those that are more than 10 years old, may be difficult to document. If other circumstances existed at the time you pled guilty to any of the prior DUIs such as not being represented by counsel among others, then the prior may be eliminated and you cannot be charged with a felony.
Please note that if a serious bodily injury occurred, you could be charged with a third degree felony, which involves up to 5 years in prison and a $5,000 fine. The minimum prison sentence is 4 years and 3 months. Your license is also revoked for a minimum of 3 years, which begins after your period of incarceration is completed.
If a fatality was involved, you face possible vehicular manslaughter charges. This carries a mandatory minimum prison sentence of 4 years and a maximum of 15 years (second degree felony). Your driving privileges will be permanently revoked.
Why Retain a DUI Attorney?
A good number of DUI offenders plead guilty at their arraignment thinking that would rather not retain an attorney to fight the charges and that no defenses are available. If you hire an experienced DUI or criminal defense attorney, you would be surprised at the number of defenses that can be raised in any DUI case, even in ones where any defense appears hopeless. Of course, you cannot realize nor appreciate this unless you at least consult with a DUI attorney.
In many cases, your attorney can be instrumental in presenting mitigating factors or defenses that can result in a reduced sentence, a negotiated plea to a charge other than a DUI or even a dismissal. If successful at a DMV administrative review, the prosecutor is less likely to charge you with a DUI and may even dismiss your case since the criminal standard of proving your guilt, or proof beyond a reasonable doubt, is more stringent than the civil one used at the hearing, which is proof by a preponderance of the evidence.
Your attorney may also present the following defenses:
Many of these defenses can be used in nearly any DUI case but each case largely depends on its individual facts. Also, the opportunity you have for getting the court to dismiss your case or for pleading to a lesser charge or a reduced sentence are greatly enhanced if you are legally represented.
Also, be aware of the consequences that a DUI will have on your normal daily activities or life. Employers will hesitate to employ you or will not hire you at all, you will be ineligible for a number of occupations and your insurance premiums will skyrocket. If you are a commercial driver, it is likely you will lose your job. Not having a driver’s license for even a few months can also cause considerable inconvenience for you and your family.