DRIVING UNDER THE INFLUENCE (DUI)

A DUI arrest begins two separate processes—one regarding your driver’s license with the Department of Motor Vehicles, and another within the criminal court system.

Regarding the DMV, time is of the essence as an arrest for DUI triggers a driver’s license suspension. If a person has refused the breath test, the result is a one-year suspension of their driver’s license with no opportunity to obtain a hardship license (for business purposes) until after 90 days has passed from the start of the suspension. If a person submitted to a breath test and the result was over the legal limit of .08, the driver’s license suspension is for a period of 6 months with no opportunity to get a hardship license for 30 days. In order to appeal this driver’s license suspension, one must file a Request for Formal Review with the Department of Motor Vehicles’ Bureau of Administrative Review within 10 days of the arrest. It is important to know that during this initial 10-day period, the DUI citation acts as a driver’s license for business purposes only.

As of July 1, 2013, the Florida legislature allowed people to waive the Formal Review Hearing within the first 10-day window following their arrest. Should one elect to waive the opportunity to appeal the driver’s license suspension, that person is immediately eligible to apply for a hardship license, which may avoid the initial 30- or 90-day term for which no hardship license is otherwise available. While the 6-month and 1-year suspension still applies, the potential to have a hardship license right away can prove critical to maintaining employment and family responsibilities. In such circumstances it is important to note that the hardship license must be physically obtained prior to the expiration of the first 10 days following arrest, making it necessary to start this process as early as possible.

The decision whether to request to have the hearing or to waive it and immediately apply for a hardship license can depend on several factors. It is therefore important to consult with an experienced DUI lawyer before making any decision so that your rights are protected and an informed decision is made.

The other and often more important part of getting arrested for DUI is the criminal case that is prosecuted by the State Attorney’s Office. There are multiple elements which must be proven by prosecutors in order to obtain a conviction for DUI. First, prosecutors must prove that the driver was in “actual physical control” of the vehicle. It must also be proven that the driver was “under the influence,” which may be done under three different theories:
1. The person was under the influence of alcohol or a chemical or controlled substance to the extent their normal faculties are impaired;
2. The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
3. The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

A typical first-time DUI that does not involve an accident or injury to another is a second-degree misdemeanor punishable by a maximum of 6 months in county jail. Of course, this classification changes if an accident and/or injuries occurred, or if the person charged has prior DUI convictions. For example, a person who is convicted of DUI for the third time within 10 years of a previous DUI conviction commits a third-degree felony punishable by up to 5 years in prison. In cases of serious bodily injury or death (DUI Manslaughter), the punishment may be significant time in prison.

Prior convictions also require a minimum-mandatory sentence be applied should an individual suffer another DUI conviction. For instance, a second conviction for DUI that occurs within 5 years of a prior conviction carries a minimum term of 10 days in county jail. A third conviction for DUI that occurs within 10 years of a prior conviction requires a minimum sentence of 30 days in county jail.

It is a common misconception that DUI cases are simple and do not require much work to present a proper defense. To the contrary, DUI cases can involve very complex factual and legal issues, beginning with the legality of the traffic stop. As with any other criminal case, it is important to consult a criminal trial attorney with experience handling DUI cases through jury trial as soon as possible to ensure your rights are being protected. If you have been charged with DUI, contact the Law Office of John M. Phillips for a free consultation to discuss your case.