DUI attorney in Florida Stephen G. Cobb discusses some of the laws
and rules concerning Florida DUI law:
FREE DUI DRIVER'S LICENSE PROTECTION FORM
DUI & BUI Explained
The difference between DUI and BUI is basic: One involves driving and
one involves boating. Both are serious. All sections marked with a
Note are not in the statute, rather they are my Florida Criminal Law
Commentary on the statute provision:
316.193 Driving under the influence; penalties.--
(1) A person is guilty of the offense of driving under the influence and
is subject to punishment as provided in subsection (2) if the person is
driving or in actual physical control of a vehicle within this state
and:
(a) The person is 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.
(2)(a) Except as provided in paragraph (b), subsection (3), or
subsection (4), any person who is convicted of a violation of subsection
(1) shall be punished:
(NOTE: In many Florida counties, people who blow 0.0 are
still arrested and charged with DUI/ BUI. Why? I think it has to do
with the risk of lawsuits and politics. Tough on Crime is a popular
political slogan - no one has ever run arguing that they are smart
on crime.)
1. By a fine of:
a. Not less than $250 or more than $500 for a first conviction.
b. Not less than $500 or more than $1,000 for a second conviction; and
2. By imprisonment for:
a. Not more than 6 months for a first conviction.
b. Not more than 9 months for a second conviction. Note: There is a
ten (10) day minimum jail or rehabilitation sentence imposed for second
offenses that is mandated by statute.
3. For a second conviction, by mandatory placement for a period of at
least 1 year, at the convicted person's sole expense, of an ignition
interlock device approved by the department in accordance with s.
316.1938 upon all vehicles that are individually or jointly leased or
owned and routinely operated by the convicted person, when the convicted
person qualifies for a permanent or restricted license. The installation
of such device may not occur before July 1, 2003. Note: The Interlock
provision is increasingly enforced.
(b)1. Any person who is convicted of a third violation of this section
for an offense that occurs within 10 years after a prior conviction for
a violation of this section commits a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In
addition, the court shall order the mandatory placement for a period of
not less than 2 years, at the convicted person's sole expense, of an
ignition interlock device approved by the department in accordance with
s. 316.1938 upon all vehicles that are individually or jointly leased or
owned and routinely operated by the convicted person, when the convicted
person qualifies for a permanent or restricted license. The installation
of such device may not occur before July 1, 2003. Note: A frequent
question is whether the third is within 10 years of the first or 10
years from the most recent. The answer is the most recent. The first
could have been in 1956 - if the second two have time difference of less
than ten years, the the charge is a felony.
2. Any person who is convicted of a third violation of this section for
an offense that occurs more than 10 years after the date of a prior
conviction for a violation of this section shall be punished by a fine
of not less than $1,000 or more than $2,500 and by imprisonment for not
more than 12 months. In addition, the court shall order the mandatory
placement for a period of at least 2 years, at the convicted person's
sole expense, of an ignition interlock device approved by the department
in accordance with s. 316.1938 upon all vehicles that are individually
or jointly leased or owned and routinely operated by the convicted
person, when the convicted person qualifies for a permanent or
restricted license. The installation of such device may not occur before
July 1, 2003.
3. Any person who is convicted of a fourth or subsequent violation of
this section, regardless of when any prior conviction for a violation of
this section occurred, commits a felony of the third degree, punishable
as provided in s. 775.082, s. 775.083, or s. 775.084. However, the fine
imposed for such fourth or subsequent violation may be not less than
$1,000.
1(3) Any person:
(a) Who is in violation of subsection (1);
(b) Who operates a vehicle; and
(c) Who, by reason of such operation, causes or contributes to causing:
1. Damage to the property or person of another commits a misdemeanor of
the first degree, punishable as provided in s. 775.082 or s. 775.083.
Note: Some judges will impose their own mandatory jail time for an
accident or injury regardless of the fact that the defendant has no
prior record.
2. Serious bodily injury to another, as defined in s. 316.1933, commits
a felony of the third degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084. Note: Great care must be taken to ensure that
this does not fall into the mandatory prison sentence category when the
Florida Punishment Code
scoresheet is prepared. This is subject to some difficult plea bargain
negotiations.
3. The death of any human being or unborn quick child commits DUI
manslaughter, and commits:
a. A felony of the second degree, punishable as provided in s. 775.082,
s. 775.083, or s. 775.084.
b. A felony of the first degree, punishable as provided in s. 775.082,
s. 775.083, or s. 775.084, if:
(I) At the time of the crash, the person knew, or should have known,
that the crash occurred; and
(II) The person failed to give information and render aid as required by
s. 316.062.
For purposes of this subsection, the definition of the term "unborn
quick child" shall be determined in accordance with the definition of
viable fetus as set forth in s. 782.071.
(4) Any person who is convicted of a violation of subsection (1) and who
has a blood-alcohol level or breath-alcohol level of 0.20 or higher, or
any person who is convicted of a violation of subsection (1) and who at
the time of the offense was accompanied in the vehicle by a person under
the age of 18 years, shall be punished: Note: This is an area for
negotiations as well.
(a) By a fine of:
1. Not less than $500 or more than $1,000 for a first conviction.
2. Not less than $1,000 or more than $2,000 for a second conviction.
3. Not less than $2,000 for a third or subsequent conviction.
(b) By imprisonment for:
1. Not more than 9 months for a first conviction.
2. Not more than 12 months for a second conviction.
For the purposes of this subsection, only the instant offense is
required to be a violation of subsection (1) by a person who has a
blood-alcohol level or breath-alcohol level of 0.20 or higher.
(c) In addition to the penalties in paragraphs (a) and (b), the court
shall order the mandatory placement, at the convicted person's sole
expense, of an ignition interlock device approved by the department in
accordance with s. 316.1938 upon all vehicles that are individually or
jointly leased or owned and routinely operated by the convicted person
for up to 6 months for the first offense and for at least 2 years for a
second offense, when the convicted person qualifies for a permanent or
restricted license. The installation of such device may not occur before
July 1, 2003.
(5) The court shall place all offenders convicted of violating this
section on monthly reporting probation and shall require completion of a
substance abuse course conducted by a DUI program licensed by the
department under s. 322.292, which must include a psychosocial
evaluation of the offender. If the DUI program refers the offender to an
authorized substance abuse treatment provider for substance abuse
treatment, in addition to any sentence or fine imposed under this
section, completion of all such education, evaluation, and treatment is
a condition of reporting probation. The offender shall assume reasonable
costs for such education, evaluation, and treatment. The referral to
treatment resulting from a psychosocial evaluation shall not be waived
without a supporting independent psychosocial evaluation conducted by an
authorized substance abuse treatment provider appointed by the court,
which shall have access to the DUI program's psychosocial evaluation
before the independent psychosocial evaluation is conducted. The court
shall review the results and recommendations of both evaluations before
determining the request for waiver. The offender shall bear the full
cost of this procedure. The term "substance abuse" means the abuse of
alcohol or any substance named or described in Schedules I through V of
s. 893.03. If an offender referred to treatment under this subsection
fails to report for or complete such treatment or fails to complete the
DUI program substance abuse education course and evaluation, the DUI
program shall notify the court and the department of the failure. Upon
receipt of the notice, the department shall cancel the offender's
driving privilege, notwithstanding the terms of the court order or any
suspension or revocation of the driving privilege. The department may
temporarily reinstate the driving privilege on a restricted basis upon
verification from the DUI program that the offender is currently
participating in treatment and the DUI education course and evaluation
requirement has been completed. If the DUI program notifies the
department of the second failure to complete treatment, the department
shall reinstate the driving privilege only after notice of completion of
treatment from the DUI program. The organization that conducts the
substance abuse education and evaluation may not provide required
substance abuse treatment unless a waiver has been granted to that
organization by the department. A waiver may be granted only if the
department determines, in accordance with its rules, that the service
provider that conducts the substance abuse education and evaluation is
the most appropriate service provider and is licensed under chapter 397
or is exempt from such licensure. A statistical referral report shall be
submitted quarterly to the department by each organization authorized to
provide services under this section. Note: These "psychosocial
evaluations" are not the top of the line type of evaluations that people
with substance abuse problems need a proper evaluation and treatment
program that is custom tailored to that person's needs. Think about
this: If "education" about the consequences of DUI & BUI really worked,
there would never be a second offense. With all due respect, I think the
thinking behind this subsection is naive. Notice how this section keeps
saying "offender" - this is a poor use of corrective psychology, self
image and is counter-productive.
(6) With respect to any person convicted of a violation of subsection
(1), regardless of any penalty imposed pursuant to subsection (2),
subsection (3), or subsection (4):
(a) For the first conviction, the court shall place the defendant on
probation for a period not to exceed 1 year and, as a condition of such
probation, shall order the defendant to participate in public service or
a community work project for a minimum of 50 hours; or the court may
order instead, that any defendant pay an additional fine of $10 for each
hour of public service or community work otherwise required, if, after
consideration of the residence or location of the defendant at the time
public service or community work is required, payment of the fine is in
the best interests of the state. However, the total period of probation
and incarceration may not exceed 1 year. The court must also, as a
condition of probation, order the impoundment or immobilization of the
vehicle that was operated by or in the actual control of the defendant
or any one vehicle registered in the defendant's name at the time of
impoundment or immobilization, for a period of 10 days or for the
unexpired term of any lease or rental agreement that expires within 10
days. The impoundment or immobilization must not occur concurrently with
the incarceration of the defendant. The impoundment or immobilization
order may be dismissed in accordance with paragraph (e), paragraph (f),
paragraph (g), or paragraph (h). Note: The procedure for getting a
vehicle impound waiver varies considerably. Some judges are smart about
this issue and others dig a trench with a spoon by requiring separate
proceedings.
(b) For the second conviction for an offense that occurs within a period
of 5 years after the date of a prior conviction for violation of this
section, the court shall order imprisonment for not less than 10 days.
The court must also, as a condition of probation, order the impoundment
or immobilization of all vehicles owned by the defendant at the time of
impoundment or immobilization, for a period of 30 days or for the
unexpired term of any lease or rental agreement that expires within 30
days. The impoundment or immobilization must not occur concurrently with
the incarceration of the defendant and must occur concurrently with the
driver's license revocation imposed under s. 322.28(2)(a)2. The
impoundment or immobilization order may be dismissed in accordance with
paragraph (e), paragraph (f), paragraph (g), or paragraph (h). At least
48 hours of confinement must be consecutive.
(c) For the third or subsequent conviction for an offense that occurs
within a period of 10 years after the date of a prior conviction for
violation of this section, the court shall order imprisonment for not
less than 30 days. The court must also, as a condition of probation,
order the impoundment or immobilization of all vehicles owned by the
defendant at the time of impoundment or immobilization, for a period of
90 days or for the unexpired term of any lease or rental agreement that
expires within 90 days. The impoundment or immobilization must not occur
concurrently with the incarceration of the defendant and must occur
concurrently with the driver's license revocation imposed under s.
322.28(2)(a)3. The impoundment or immobilization order may be dismissed
in accordance with paragraph (e), paragraph (f), paragraph (g), or
paragraph (h). At least 48 hours of confinement must be consecutive.
(d) The court must at the time of sentencing the defendant issue an
order for the impoundment or immobilization of a vehicle. Within 7
business days after the date that the court issues the order of
impoundment or immobilization, the clerk of the court must send notice
by certified mail, return receipt requested, to the registered owner of
each vehicle, if the registered owner is a person other than the
defendant, and to each person of record claiming a lien against the
vehicle.
(e) A person who owns but was not operating the vehicle when the offense
occurred may submit to the court a police report indicating that the
vehicle was stolen at the time of the offense or documentation of having
purchased the vehicle after the offense was committed from an entity
other than the defendant or the defendant's agent. If the court finds
that the vehicle was stolen or that the sale was not made to circumvent
the order and allow the defendant continued access to the vehicle, the
order must be dismissed and the owner of the vehicle will incur no
costs. If the court denies the request to dismiss the order of
impoundment or immobilization, the petitioner may request an evidentiary
hearing. Note: Notice how it says that an evidentiary proceeding can
be done if the judge denies the request for waiver. Check out the next
section.
(f) A person who owns but was not operating the vehicle when the offense
occurred, and whose vehicle was stolen or who purchased the vehicle
after the offense was committed directly from the defendant or the
defendant's agent, may request an evidentiary hearing to determine
whether the impoundment or immobilization should occur. If the court
finds that either the vehicle was stolen or the purchase was made
without knowledge of the offense, that the purchaser had no relationship
to the defendant other than through the transaction, and that such
purchase would not circumvent the order and allow the defendant
continued access to the vehicle, the order must be dismissed and the
owner of the vehicle will incur no costs. Note: This can be done by a
stipulation to the evidence as part of plea negotiations, yet some
judges will insist that it cannot be done at the time of the plea or by
stipulation to the facts. This wastes time and taxpayer money.
(g) The court shall also dismiss the order of impoundment or
immobilization of the vehicle if the court finds that the family of the
owner of the vehicle has no other private or public means of
transportation. Note: No hearing required here, but some judges order
a separate hearing anyway.
(h) The court may also dismiss the order of impoundment or
immobilization of any vehicles that are owned by the defendant but that
are operated solely by the employees of the defendant or any business
owned by the defendant. Note: See the note above.
(i) All costs and fees for the impoundment or immobilization, including
the cost of notification, must be paid by the owner of the vehicle or,
if the vehicle is leased or rented, by the person leasing or renting the
vehicle, unless the impoundment or immobilization order is dismissed.
All provisions of s. 713.78 shall apply. Note: Now we see how this
law was passed: It does not make the public safer, but it makes someone
unjustly rich.
(j) The person who owns a vehicle that is impounded or immobilized under
this paragraph, or a person who has a lien of record against such a
vehicle and who has not requested a review of the impoundment pursuant
to paragraph (e), paragraph (f), or paragraph (g), may, within 10 days
after the date that person has knowledge of the location of the vehicle,
file a complaint in the county in which the owner resides to determine
whether the vehicle was wrongfully taken or withheld from the owner or
lienholder. Upon the filing of a complaint, the owner or lienholder may
have the vehicle released by posting with the court a bond or other
adequate security equal to the amount of the costs and fees for
impoundment or immobilization, including towing or storage, to ensure
the payment of such costs and fees if the owner or lienholder does not
prevail. When the bond is posted and the fee is paid as set forth in s.
28.24, the clerk of the court shall issue a certificate releasing the
vehicle. At the time of release, after reasonable inspection, the owner
or lienholder must give a receipt to the towing or storage company
indicating any loss or damage to the vehicle or to the contents of the
vehicle.
(k) A defendant, in the court's discretion, may be required to serve all
or any portion of a term of imprisonment to which the defendant has been
sentenced pursuant to this section in a residential alcoholism treatment
program or a residential drug abuse treatment program. Any time spent in
such a program must be credited by the court toward the term of
imprisonment. Note: Many defendants have gone to these programs
BEFORE sentence was imposed only to learn that the program time
inpatient does not count. For it to count, the program must be done
after sentencing. Also note that this is without any real diagnosis by a
qualified mental health professional that an inpatient program is better
than an outpatient program, so how did this exception become law? Oh . .
. lobbyists . . .
For the purposes of this section, any conviction for a violation of s.
327.35; a previous conviction for the violation of former s. 316.1931,
former s. 860.01, or former s. 316.028; or a previous conviction outside
this state for driving under the influence, driving while intoxicated,
driving with an unlawful blood-alcohol level, driving with an unlawful
breath-alcohol level, or any other similar alcohol-related or
drug-related traffic offense, is also considered a previous conviction
for violation of this section. However, in satisfaction of the fine
imposed pursuant to this section, the court may, upon a finding that the
defendant is financially unable to pay either all or part of the fine,
order that the defendant participate for a specified additional period
of time in public service or a community work project in lieu of payment
of that portion of the fine which the court determines the defendant is
unable to pay. In determining such additional sentence, the court shall
consider the amount of the unpaid portion of the fine and the reasonable
value of the services to be ordered; however, the court may not compute
the reasonable value of services at a rate less than the federal minimum
wage at the time of sentencing.
(7) A conviction under this section does not bar any civil suit for
damages against the person so convicted.
(8) At the arraignment, or in conjunction with any notice of arraignment
provided by the clerk of the court, the clerk shall provide any person
charged with a violation of this section with notice that upon
conviction the court shall suspend or revoke the offender's driver's
license and that the offender should make arrangements for
transportation at any proceeding in which the court may take such
action. Failure to provide such notice does not affect the court's
suspension or revocation of the offender's driver's license.
(9) A person who is arrested for a violation of this section may not be
released from custody:
(a) Until the person is no longer under the influence of alcoholic
beverages, any chemical substance set forth in s. 877.111, or any
substance controlled under chapter 893 and affected to the extent that
his or her normal faculties are impaired;
(b) Until the person's blood-alcohol level or breath-alcohol level is
less than 0.05; or
(c) Until 8 hours have elapsed from the time the person was arrested.
(10) The rulings of the Department of Highway Safety and Motor Vehicles
under s. 322.2615 shall not be considered in any trial for a violation
of this section. Testimony or evidence from the administrative
proceedings or any written statement submitted by a person in his or her
request for administrative review is inadmissible into evidence or for
any other purpose in any criminal proceeding, unless timely disclosed in
criminal discovery pursuant to Rule 3.220, Florida Rules of Criminal
Procedure. Note: This section manages to render itself virtually
meaningless.
(11) The Department of Highway Safety and Motor Vehicles is directed to
adopt rules providing for the implementation of the use of ignition
interlock devices.
(12) If the records of the Department of Highway Safety and Motor
Vehicles show that the defendant has been previously convicted of the
offense of driving under the influence, that evidence is sufficient by
itself to establish that prior conviction for driving under the
influence. However, such evidence may be contradicted or rebutted by
other evidence. This presumption may be considered along with any other
evidence presented in deciding whether the defendant has been previously
convicted of the offense of driving under the influence.
This section of Florida law is provided for informational purposes
only. This section does not include case law construction and is
not intended to constitute legal interpretation nor advice.
