Driving Under The Influence


One of the most serious of the criminal traffic offenses is Driving Under the Influence, (“DUI”).  A DUI not only could result in serving time in jail, but also may have a serious impact on your driving privileges.  It is important to understand that DUI’s not only punish impairment by alcohol, but also include the crime of impairment resulting from drug use- both illegal and legally prescribed substances.  

In Florida, "driving under the influence" is legally defined as a person that drives- or is in actual physical control of a vehicle- while they are:

(a) under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;

(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; OR

(c)The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.  

Florida Statute 316.193

A few important things to note:

  • One important thing here is the phrase, “in the actual physical control of a vehicle”. This phrase has been interpreted under Florida law to mean that a person is in actual physical control of a vehicle when the keys are within “ready reach” – even if they are not driving! For example, if a person is intoxicated and sleeping, in their car, while the engine is running, this could potentially support a conviction for DUI - even though the person was likely trying to do the right thing.

  • Driving under the influence is a crime commonly referred to as "drunk driving", but the language in the statute outlaws driving under the influence of any controlled substance, which could include marijuana, cocaine, or prescription pain pills (even if you have a lawful prescription).

  • If there is no breath or blood test conducted, or if the test shows a level under .08, the State can still proceed on a DUI case, under the theory that the person was under the influence "to the extent [their] normal faculties are impaired". This can include : "ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives" § 316.1934(1), Fla. Stat.

consequences of a DUI Conviction

Although a first-time DUI with no aggravating circumstances is a misdemeanor in Florida, these offenses are taken very seriously and come with many additional penalties-many of them mandatory- specific to the offense, including: 

  • Completion of a substance abuse evaluation and treatment (often referred to as “DUI Counterattack Class”)

  • Completion of a Victim Awareness Panel

  • Vehicle impound or immobilization for at least 10 days

  • $500-$1000 fine

  • Placement – at the offender’s expense – of an ignition interlock device (not mandatory if first-time offense and blood/breath alcohol level is less than 0.15)

  • Fifty hours of community service

  • Maximum six months of jail

  • Mandatory probation (up to one year)

Aggravating Factors

Not all DUI arrests are created equal - there are some specific circumstances that can add additional mandatory consequences.  These include:

  • Prior DUI convictions (must be convictions, not arrests)

    • The second DUI in a five year-period requires minimum of ten days in jail (maximum is 9 months)

    • The third DUI in a ten-year period requires a minimum of thirty days in jail, and becomes a third-degree felony

    • The fourth DUI, regardless of time period, constitutes a third-degree felony, punishable by five years prison or probation, and a $2000 -$5000 fine

  • Blood/breath alcohol level greater than 0.15

    • Increased fine ($1000-$2000 for first offense)

  • Accompanied by person under 18

  • Property damage or injury

    • If bodily injury is deemed "serious", it is a third-degree felony, punishable by up to five years in prison or five years of probation

    • If accident results in death, it is a second-degree felony (DUI Manslaughter) punishable by fifteen years of prison or probation, and a minimum mandatory prison term of four years

What Happens to My Drivers License?

For many, one of the most troubling consequences of a DUI conviction is a mandatory six-month driver’s license suspension (or possibly even longer, depending on the circumstances).  It is extremely important to note that this suspension is a direct result of the conviction for DUI.  This means, if you aren't convicted of the DUI (either through acquittal, or plea to a lesser charge), then you will not suffer this suspension.

However, in Florida, there is an additional, administrative DUI suspension, imposed directly through the DMV (pursuant to Florida State Statute s 322.2615).   If you are arrested for DUI and have a blood or breath alcohol level of .08 or greater, or if you refuse to submit to a breath test, your license will be automatically suspended after the expiration of a ten-day temporary driving permit.  Administrative suspensions can be challenged by requesting either an informal or a formal review hearing within the ten-day period.  As part of the request, an attorney can then seek an extension on that ten-day period until you can have the review hearing.  Depending on the outcome of the review hearing, the suspension will either be reinstated, or, if you are successful in challenging the suspension, your license may be reinstated pending the resolution of your criminal case.  

If the Department upholds a suspension, a person may be eligible for a hardship license under Florida State Statute s. 322.271.  There are two kinds of hardship licenses:

  • Business purposes only : Any driving necessary to maintain livelihood, including driving to/from work, on-the-job driving, driving for educational purposes, and driving for church or for medical purposes

  • Employment purposes only: Limited to driving to and from work only, as well as on-the-job driving required by employer

Before you can be considered eligible for a hardship license, the department will require proof of the successful completion of DUI program substance abuse education course and evaluation as provided in s. 316.193(5). Letters of recommendation from respected business persons in the community, law enforcement officers, or judicial officers may also be required to determine whether you can be trusted to operate a motor vehicle.  The department also may require proof of enrollment in a licensed DUI program substance abuse education course, including evaluation and treatment, if referred, and may require letters of recommendation described in this paragraph to determine if the driver should be reinstated on a restricted basis. 

DUI’s are complicated offenses and involve the practice of both criminal and administrative law.  A thorough DUI defense may require challenging the legality of a traffic stop, the length of the traffic stop, the search of one’s person and/or vehicle, challenging whether field sobriety exercises were warranted, and, if so, whether they were conducted properly, the validity of any breath tests – including both the procedures used, as well as the reliability and validity of the results, whether probable cause existed to request a blood draw, and, if so, whether proper procedures were utilized in obtaining and analyzing the blood results, review of toxicology reports, as well as possible consultations with experts in toxicology.

If you or someone you know is facing a traffic or DUI charge, it is important to hire a skilled and experienced attorney who understands the complexities involved in DUI cases.  Board Certified Criminal Trial Lawyer Benjamin Wurtzel has handled all levels of DUI’s and tried several DUI’s in front of a jury.  Hiring an experienced DUI attorney may not only protect your freedom, but also your driving privileges. Contact Wurtzel Law for a free consultation to learn more about our thorough DUI defense and how we can help protect your future.


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