Driving while under the influence of alcoholic beverages or a controlled substance is one of the most serious traffic violations an individual can commit. In fact, it is classified as a crime and in some circumstances a felony. If you are found guilty of driving while under the influence (DUI), you are subject to heavy penalties for the first offense. These include possible imprisonment of up to six months, a loss of your driver’s license for up to one year, a fine up to $2,000 in addition to court costs, completion of a substance abuse course and driving course and 50 hours of community service (16 hours with the sheriff’s work detail), along with an electronic alcohol monitor worn at all times (§ 316.193, Fla. Stat.). The vehicle you were driving must be impounded. The penalties are even more serious if your blood alcohol level is .20 or higher or if there were passengers in the vehicle under the age of 18 years old (§ 316.1934, Fla. Stat.).
A DUI is a crime with almost uniform sentencing results. In most instances, a judge cannot deviate from imposing the punishments mandated by the Legislature, even if a judge thinks a certain punishment is not appropriate or necessary.
If you are intoxicated and in a vehicle with the keys, the vehicle does NOT have to be running for you to be charged with DUI – actual physical control can be established where a person is in a vehicle with the means to drive, regardless of whether the vehicle is in motion or even running. This includes cases where individuals have been charged and convicted with DUI for sleeping in a car.
If you operate a motor vehicle in the State of Florida, you are subject to the “implied consent” law. This means that because you are operating a motor vehicle in the State of Florida, you have agreed to take a chemical test if the officer has a reasonable suspicion that you are under the influence of an alcoholic beverage or controlled substance. A urine test can be requested if drugs are suspected. A blood test can be requested under some circumstances (traffic accident). In 2016, the U.S. Supreme Court ruled that police need to obtain a search warrant to obtain a blood draw for DUI arrests. See Section entitled Can I be required to provide a blood sample if I am suspected of Driving Under the Influence? If you have a Florida driver’s license, the statement, “Operation of a motor vehicle constitutes consent to any sobriety test required by law” appears along the bottom.
These tests are to determine your blood alcohol or drug level to find out how much alcohol or drugs are in your bloodstream. If you refuse to take the test, you are subject to a suspension of your driver’s license for a period of one year for a first refusal and a period of 18 months if your driving privilege has been previously suspended for refusing to submit to such a test (§ 316.1939, Fla. Stat.). In addition, refusing to submit to a test for the second time is actually a first degree misdemeanor itself. People have been charged with DUI and refusing to consent to a breath test. You do not have the right to have your own doctor give you the test at the time of the arrest, and you do not have the right to have an attorney present when you take such a test. You do have the right to have a second test administered by a physician or a laboratory technician of your choice. However, the second test must be paid for by you.
Police officers have the power to suspend your driver’s license on the spot for a DUI arrest. When police officers seize a license, they issue a traffic citation, and a suspension order. Although the officer will physically take your driver’s license, you should keep the actual ticket that gets issued for the DUI. This will act as your driver’s license for the next 10 days. To earn reinstatement, drivers cited under this law must pay costs and fines. Hardship licenses are available under certain limited circumstances upon request, but not for at least 30 days after being charged.
If you refuse to take the test, your license will be suspended by the Department of Highway Safety and Motor Vehicles. Upon receipt of the law enforcement officer’s sworn statement that you refused, the department will notify you in writing by certified mail to your last known address that your license has been suspended unless a notice of suspension has already been served by a police officer. Therefore, it is very important that your correct address appears on your driver license. If it does not, you should immediately correct it with the Department of Highway Safety and Motor Vehicles. Failing to timely change your address on your driver license can be the basis for another charge. You then have the right to a hearing before a hearing officer concerning the refusal, but only if you or your attorney files for the hearing within a strict deadline (10 days). At this hearing, the hearing officer is concerned with four issues:
- Was there reasonable suspicion to stop you for driving while under the influence of alcoholic beverages or a controlled substance? Unusual or hazardous driving might be the reason for stopping you. The arresting officer must have cause to believe you were driving or in actual physical control of the vehicle, while under the influence in order to detain you.
- Were you placed under lawful arrest?
- Did you refuse to submit to the test after being requested to do so by a law enforcement officer?
- Did the law enforcement officer tell you that your right to drive would be suspended for one year if you refused to submit to the test?
Your license can be suspended even though you are later found not guilty of the driving while under the influence charge. The suspension is civil in nature, is based on an administrative hearing, and is entirely separate from the criminal charge of D.U.I. Therefore, you may want to consult an attorney for advice about such a hearing.
See Chapter 316, Fla. Stat.