In Florida the crime of Driving Under the Influence (“DUI”) is controlled by section 316.193, Florida Statutes.
Under Florida law, a person commits the crime of DUI when they are “driving or in actual physical control of a vehicle in this state and:
1.) the person is under the influence of alcoholic beverages, any chemical substance set forth in § 877.111, or any substance controlled under Chapter 893, when affected to the extent that the person’s normal faculties are impaired; OR
2.) the person has a blood or breath alcohol level of a .08 or more.
Essentially, you may still be convicted of a DUI even if you refused the breath test. Florida’s DUI law cited above, makes it a crime to drive or be in actual physical control of a vehicle when a person is under the influence of alcohol (or controlled substance) to the extent that their normal faculties are impaired. In short the government does not need a sample of your breath (or blood) to prove you guilty of a DUI.
In a DUI case, when someone refuses a breath (or blood) test, the government must have additional evidence to prove that you committed the crime. This evidence must be enough to prove that you were under the influence of alcohol (or a controlled substance) to the extent that your normal faculties were impaired.
Often, the evidence against you will be a combination of police officer testimony and other available physical evidence such as police dash cam/body cam video of your interaction with the officer, your performance on the Field Sobriety Exercises (FSEs), photos, an open container of alcohol, etc.
For example, the police officer might be prepared to testify that you had bloodshot and watery eyes, your speech was slurred, and you had the odor of alcohol emanating from your breath. The police officer will probably attempt to back up his opinion that you were impaired with a video showing you performing poorly on the FSEs.
Proving a DUI without a breath (or blood) test is controversial because alcohol affects everyone differently. Also, there may be innocent reasons why you showed signs that you were under the influence. For example, you may have had bloodshot and watery eyes because you have allergies. And your balance might have been affected due a long term injury or just poor coordination. Maybe your speech sounds slurred or mumbled because you were exhausted from work.
It is very important for your lawyer to carefully examine the evidence in your case and to determine whether there are weaknesses in the government’s case against you. To do this your lawyer must have a firm understanding of your you and your case.
Under Florida law, “impaired means diminished in some material respect.” Shaw v. State, 783 So.2d 1097 (Fla. 5th DCA 2001). As you probably thought, this definition vague. Suffice it to say, “impaired” under Florida law is a loose term and it is not one size fits all. Ultimately, each person is likely to have a different opinion as to what makes someone “impaired”.
A first time DUI is classified as a first degree misdemeanor. Under Florida law, a first degree misdemeanor is punishable up to 364 days in the county jail. The crime of DUI however, is particular because Florida law has a special statutory scheme that establishes the maximum amount of jail time and other minimum conditions for a DUI convictions depending upon your prior record. Below is a breakdown of the maximum penalties and other mandatory sentencing provisions for DUI convictions under Florida law.
In Florida, the maximum penalties for a DUI are 6 months in the county jail, a maximum $1,000 fine, up to 12 months of probation, with the following mandatory conditions: DUI School, a substance abuse evaluation and any recommended treatment, 50 hours of community service, a 10 day vehicle impound, and a driver’s license suspension.
**If you provided a sample of your breath and it was a .15 or higher OR you had a minor in the vehicle then the maximum fine is $2,000, a maximum jail sentence of 9 months, and a 6 month ignition interlock.
If this is your second DUI conviction that is at least 5 years after your first conviction (aka Second Outside of 5) then the maximum penalties for a DUI are 9 months in the county jail, a maximum $2,000 fine, 1 year ignition interlock device, up to 12 months of probation, with the following mandatory conditions: DUI School, a substance abuse evaluation and any recommended treatment, and a driver’s license suspension.
**If you provided a sample of your breath and it was a .15 or higher OR you had a minor in the vehicle then the maximum fine is $4,000, a maximum jail sentence of 12 months, and 2 year ignition interlock.
If this is your second DUI conviction that is at within 5 years, or less after your first conviction (aka Second Within 5) then the maximum penalties for a DUI are 9 months in the county jail (10 days mandatory minimum in jail), a maximum $2,000 fine, 30 day vehicle impound, 1 year ignition interlock device, up to 12 months of probation, with the following mandatory conditions: DUI School, a substance abuse evaluation and any recommended treatment, and a driver’s license suspension.
If this is your third DUI conviction that at least 10 years after your last conviction, (aka Third Outside of 10) then the maximum penalties for a DUI are 12 months in the county jail (10 days mandatory minimum in jail), a maximum $5,000 fine, 2 year ignition interlock device, up to 12 months of probation, with the following mandatory conditions: DUI School, a substance abuse evaluation and any recommended treatment, and a driver’s license suspension.
If this is your third DUI conviction that is less than 10 years after your last conviction, (aka Third Within 10) it is considered a third degree felony. Since, this charge is a third degree felony the felony sentencing guidelines apply. In any event, the maximum penalties for a third DUI within three years, are 5 years in the prison (30 days mandatory minimum in jail), a maximum $5,000 fine, 2 year ignition interlock device, up to 5 years of probation, with the following mandatory conditions: 90 day vehicle impound, DUI School, a substance abuse evaluation and any recommended treatment, and a driver’s license suspension.
If this is your fourth, fifth, sixth (or more) DUI conviction it is considered a third degree felony. Since, this charge is a third degree felony the felony sentencing guidelines apply. In any event, the maximum penalties for a fourth, fifth (or more) DUI conviction is 5 years in the prison and up to 5 years of probation, the fine may not be less than $2,000.
In addition to alcohol, Florida law makes it illegal to drive under the influence of certain drugs. As mentioned above Florida Statutes makes it illegal to drive “under the influence of […] any chemical substance set forth in § 877.111, or any substance controlled under Chapter 893, when affected to the extent that the person’s normal faculties are impaired.” § 316.193(1)(a), Florida Statutes.
Therefore, technically a driver may be convicted of a DUI even though they have had zero (0) alcohol in their system. Chapter 893 and section 877 of Florida Statutes contain an extremely lengthy list of drugs that may lead someone to being charged and ultimately convicted of a DUI in Florida. Among the drugs listed, are cocaine, alprazolam, oxycodone, marijuana, and heroin. A full list of the drugs under Chapter 893, Florida Statutes can be found HERE. A full list of the drugs listed under section 877.111, Florida Statutes can be found HERE.
Under Florida law, technically you can be charged with a DUI even if the drugs in your system were lawfully prescribed to you by a doctor. Keep in mind however, law enforcement must prove that the drugs “affected to the [person to the] extent that the person’s normal faculties are impaired.” § 316.193, Florida Statutes. It is not enough that you had the drugs in your system, law enforcement must prove that you were in fact “impaired”.
As you may probably know certain drugs that you can buy over-the-counter at CVS or Walgreens can have powerful impairing effects. In some cases these over-the-counter medicines may impair someone just as much or more so than illegal drugs. Over-the-counter drugs however, may not alone form the basis of a DUI charge. Therefore, if you have been arrested for DUI and were impaired by an over-the-counter medication alone, you are entitled to a complete dismissal. It is imperative for you to speak to your lawyer and tell him or her this fact.
If you have been charged with a DUI in Florida you probably have many questions. You are most likely wondering the following:
The following is a list of just a few common defenses to DUI in Florida.
If you provided a sample of your breath and the results were a .08 or over, you may be wondering whether there is any way to challenge those results. Although, successfully challenging breath test results is often times a steep hill to climb, in certain instances it can be done.
First, if your constitutional rights were violated (specifically your fourth amendment rights) during the DUI investigation, you may be entitled to have the breath results thrown out. DUI investigations are very technical and if police officers are not careful their actions may entitle you to have certain evidence excluded from your case. In order to determine whether your constitutional rights were violated, a thorough analysis of your entire case is necessary.
Aside from a constitutional perspective, the breath test results may be attacked by discovering that the breath test machine was not functioning properly or there may have been issues with how the machine was maintained.
Florida law has very strict laws for how police departments maintain their breath test machines. There are monthly inspection tests that must be done in order for law enforcement to use test results from any breath machine. Obtaining the records from these monthly tests is vital before you should give up defending your DUI case. Although rare, there have been cases where the police have been guilty of using breath test machines that have not been properly maintained.
Not only are there local monthly inspection tests of the breath machines, there are also annual tests performed on each machine. The annual test is completed by the Florida Department of Law Enforcement (FDLE) in Tallahassee. Each machine is shipped to FDLE for this “department inspection” every year. FDLE maintains records of each annual inspection for every breath machine in service in the State of Florida. Again, before you give up defending your case, it is very important to obtain your machine’s departmental inspection records to confirm that the machine was in working order, when you took the test.
It is only illegal to drive a vehicle with a breath (or blood) alcohol level of a .08 or more.
As you are probably aware, alcohol does not absorb into your system immediately upon consumption. This is important because the longer the DUI investigation, the more unreliable the breath test results become.
Depending upon your height, weight, and the time and amount/type of alcohol consumed, the rate at which the alcohol absorbs into your bloodstream (causing impairment) will vary. Sometimes it may be the case that when you got into the car and began to drive the alcohol was still in your stomach, and not fully absorbed into your bloodstream yet. This means that your body’s alcohol level when you were first pulled over, might be different and at a substantially lower level than when you provided the police the sample of your breath hours later, at the end of the investigation.
It is important to establish a timeline and determine whether this defense is available to you. If so, the next step is to consult with an expert, such as a toxicologist. If an expert can provide an opinion based on the evidence that your alcohol content was below a .08 when police pulled you over, that you may be able to successfully defeat your DUI charge.
The most common DUI defense when a refusal to submit to the breath test is involved, is that either you were not impaired or law enforcement’s evidence against you is insufficient for the them to convict you. When you refuse to take the breath test law enforcement will probably rely on the police officer’s opinion that you were impaired combined with dash/body cam video of you along with any other physical evidence that point to impairment.
There may be a variety of innocent reasons that explain why you may have appeared impaired. Do you have allergies that caused you to have watery/red eyes? Do you have a speech impediment or were you exhausted from working a double shift, causing your speech to be unclear? Did you have surgery or an injury that affects your balance? These are of course a few of hundreds of innocent explanations that may apply to your case.
If there is a video involved, it will come down to whether you appear impaired on video. If you are obviously intoxicated then convincing a jury or a judge that you were not impaired will not happen. On the other hand if the video shows no impairment then that is a strong fact in making your case.
How can someone be arrested and charged with DUI if they were not driving a car? If you were not driving a vehicle, then law enforcement must prove that you were in “actual physical control” of your car.
For example, imagine coming out of a bar intoxicated. You walk up to your car in the parking lot and know that you are not fit to drive. You decide to get in your car and sleep for a few hours. You fall asleep but are awoken to the sound of a police officer’s flashlight taping your window. The police officer sees that you are asleep and asks you to step out of the car. When you step out to talk to him or her, the officer immediately smells the odor of alcohol and sees that you have been drinking. Ultimately the officer conducts a DUI investigation and arrests you for DUI. How can this be? Believer it or not cases like this happen all of the time.
The ultimate question will be whether the person was in “actual physical control” of their vehicle, while they were intoxicated. Florida law defines, “actual physical control” as being “physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether he/she is actually operating the vehicle at the time.”
This is a highly fact sensitive question. For example, a person is probably in “actual physical control” of a car when he is seated in the driver’s seat with the keys in the ignition. However, he is probably not in “actual physical control” when he is asleep in the backseat and the keys are not in the vehicle. The variety of factual scenarios are nearly endless and there will most likely be an argument against “actual physical control.” Having an experienced and dedicated defense attorney in your corner to challenge the claim that you were in actual physical control is imperative.
Not only does the government have to prove that you were “in actual physical control” of the vehicle, it must also prove that vehicle was “operable”. Under Florida law, “[i]t is a defense to the charge of [DUI] if at the time of the alleged offense, the vehicle was inoperable.”
Although somewhat uncommon, a defense to your DUI may be that your car was inoperable. For example, imagine you are at a friend’s house for a party and, while intoxicated you happen to get behind the wheel of a car that requires major engine repair. In that example, there is a strong argument that you cannot be convicted of DUI because the vehicle was not operable.
At the Law Offices of Scott J. Kalish we have the experience to deliver excellent DUI defense. We represent people throughout South Florida, including Broward, Palm Beach, Miami-Dade, Martin, and St. Lucie Counties.
With our main office conveniently located in Coral Springs, and other office locations throughout South Florida we are never far. If you have a question about DUI, or any other criminal defense matter, reach out to us today for real help.