How Is DUI Defined Under Florida State Law?
This is the “what is a DUI?” question. A person can be convicted of DUI basically in two ways in the state of Florida. One way is by impairment; the other is called a DUBAL, which means Driving with Unlawful Blood Alcohol Level. Under the impairment wing of the statute, if the state doesn’t have blood, breath or urine, then other things are examined in terms of evidence to prove a case. The absence of a blood, breath or urine test doesn’t mean an automatic win, because other evidence is considered. This could include the driving pattern, whether or not the person smelled of alcohol, whether or not there are any empty containers in the vehicle, and so on. A person can be convicted without having blood, breath or urine at an unlawful level, but it much harder for the State in most cases.
In Florida, the blood alcohol of 0.08 establishes only a presumption of impairment. If someone does a breath test and they blow above a 0.05 but below a 0.08, then there is no legal presumption of impairment. In that case, they can go to trial and argue, “Yes, I drank but I was not impaired for driving purposes”. Great care must be undertaken with jury selection on this issue, because people will try to sneak on a jury in order to convict someone who isn’t actually guilty.
Someone arrested under the DUBAL portion of the statute can go to trial with a blood alcohol of 0.08 or higher and they can make a similar argument. However, there is already established a presumption of impairment based upon the blood alcohol level. Nevertheless, most people do not realize that it is a presumption that can be rebutted.
Always remember, Florida has a very broad DUI law – a person does not have to be driving a car. They can be on a bicycle, on a skateboard and even a motorized wheelchair has been found to be a vehicle within the definition of the DUI Statute in Florida.
Do Most People Charged With A DUI In Florida Have Very High BAC Levels Or Closer To Legal Limits?
BAC levels are all over the place. The highest blood alcohol concentration level I’ve handled was 0.35% and the lowest, of course, being zero. The guy in the 0.35% case had a great video – he looked perfectly sober. If he actually had a .35 BAC, that’s a level at which people have died from alcohol poisoning. The breath test was flat wrong.
In one case, there was a woman who was charged with a DUI but when she took the breathalyzer, it came up showing no alcohol. She was still charged with DUI: police then followed with giving her a urine test, which took weeks to come back. Sure enough, the results showed she was not impaired due to alcohol or drugs at all. In fact, she was “impaired” because she had not taken her psychiatric medications. She needed medical help, yet was arrested for a first offense DUI instead.
So really, BAC levels in DUI cases run the spectrum from really high to nothing at all. The police do at least two breath tests, don’t let people see the reading as it is being made, and then people find out later that the two readings are not the same. Sometimes that matters enough to get the breathalyzer test suppressed (“thrown out”).
Most of what people believe about criminal laws, especially DUI law in particular, is wrong. The reason for this disconnect is media. For example, Florida doesn’t have a Driving While Intoxicated statute. They have a Driving Under the Influence While Impaired Due to Alcohol statute. Intoxication and impairment are completely different things in Florida.
An individual does not have to be drunk in order to be convicted. The law has been rigged by the politicians in Tallahassee in several different ways and one of the most noteworthy was lowering the blood alcohol level for a DUBAL conviction from 0.1% to 0.08%. That has made it easier for the state to secure convictions. However, they still have to follow all of the evidence rules and that’s what the discovery process is about. This is key: people who walk into court unrepresented are at a real disadvantage because they do not know what is in the State’s case against them. I’ve seen a lot of people led away from the courthouse in handcuffs over the course of my career, and DUI is the number one charge where courthouse surprise – an unexpected jail sentence – happens. Just about every day, someone asks me if they will really go to jail on a first offense DUI.
Somewhere in Florida, someone with a first offense DUI is getting, just got, or will get surprised at the courthouse. Some cry as they are led away. They thought they were going home on probation and had no clue that they had a legal landmine in their case. A Rule 3.220(b) Notice of Discovery is the single most important written pleading to be filed in a DUI case.
If you need answers to Commonly Asked Questions Related To DUI In Florida, call the criminal defense office of Stephen G. Cobb for a FREE Initial Consultation at (850) 423-0035 and get the information and legal answers you’re seeking.