Florida DUI Basics

Probably one of the most common, and most complicated criminal charges to defend against is a DUI. Most people don't know what they are in for if they are ever charged with a DUI in Florida. Below is virtually the exact speech I give to new clients charged with DUI so they can begin to understand the process they are about to undertake:

In Florida, a DUI is actually two cases occurring at once. The first is the Criminal Case that most of us think of, involving the State Attorney and a judge at the court house. The second often gets ignored, and is against the Department of Motor Vehicles. This second case comes out of the fact that as soon as someone is charged with DUI, the DMV suspends their license. That suspension initiates an Administrative Law Case that has penalties and consequences above and beyond any potential criminal penalties. It is my strong opinion that failing to take advantage of the Administrative Hearing is a huge mistake in any DUI case.

As I stated above, if you are ever charged with a DUI, the DMV automatically suspends your license for 6 months to a year. If you consented to the breathalyzer, the suspension is for six months; if you refused the breathalyzer, the suspension is for a year. Once you are arrested or cited for DUI, your license is confiscated and you have ten (10) days to request an Administrative Hearing to challenge this suspension. During that ten day period, your DUI citation actually serves your driver's license. If you do not request the Administrative hearing during those ten days, the suspension will take effect, and there will be nothing you can do to reverse it. Yes, your license is suspended even though your Criminal case hasn't even started.

If you do request an Administrative Hearing, you will normally qualify for a Business Purpose Driving Permit, which is intended to allow you to keep driving until after the Administrative Hearing. In order to uphold the suspension, the Department only has to establish Probable Cause to believe that either you were in control of a motor vehicle while under the influence of an intoxicant, or that you refused to take a breathalyzer test after being properly requested to do so. Probable Cause is a very low threshold, nowhere near "beyond a reasonable doubt". The hearing is presided over by a Hearing Officer...Not a Judge, Possibly not even an attorney. The Hearing Officer's job is to determine whether or not law enforcement had a good reason to believe you were under the influence...not a rock solid reason, just a good one. Additionally, the rules of evidence are much more relaxed than in the Criminal part of the case. For instance, in parts of Florida (including Tampa, Sarasota and Naples), an illegal stop probably won't get you a win at the Administrative Hearing. I'm going to be honest with you, and say that no attorneys brag about their win rates at these hearing. It is a very low threshold of proof. However, there are number very good reasons to go through the process.

First of all, requesting the hearing will probably get you a permit to allow you to keep driving. This will give you time to make arrangements for the possibility that you may have to go a period of time without being able to drive. If you do win the hearing, your driving privileges will be reinstated. If, however, the suspension is upheld (or if you don't request the hearing at all), you will have to sign up for DUI School and go a period of time before another Hardship License will be issued (30 days if you took the breathalyzer, and 90 days if you refused). If you had a previous DUI, ever, you probably will not be issued a hardship license if you do not win the Administrative Hearing, or if you don't request one. Changes are, you weren't planning on loosing your license the night you got arrested, and will need more than 10 days to figure out how you are going to get to work, shcool, or to pick up the kids for the next month to a year. Requesting the Administrative Hearing usually gets you a driving permit and gives you time to prepare for the possibility that you will not be able to drive for a while. THE LAST THING YOU EVER WANT IS TO BE CHARGED WITH DRIVING ON A DUI SUSPENDED LICENSE; that is a good way to get a reservation at the Sheriff's County Resort (jail).

Second, you are entitled to much of the same Discovery (police reports, etc.) in the Administrative Case as you are in the Criminal case. The Administrative Hearing almost always occurs much faster than the Criminal Case will progress. Therefore, you can often get the basic Discovery quicker by going through the Administrative Hearing. It's the same reports you are going to get in the Criminal Case, but a head start is rarely a bad thing. In preparing for your Administrative Hearing, your attorney will be developing some of the same defenses he or she hopes to use to defend the criminal charges.

Most importantly, you or your attorney get a chance to question the officers involved in the Criminal Case on the record, and usually without the State Attorney present. Law enforcement is trained on how to write a police report to establish probable cause. Usually, that is all the information in a police report...the bare facts that make the arrest sound as solid as possible. In more egregious criminal cases attorney get to depose officers to find out if anything is missing from the report. In Misdemeanor and Traffic cases in Florida, you do not have an absolute right to take deposition; in fact, you need the judge's permission in most cases. If you request and Administrative Hearing, you can subpoena the officers involved and ask them questions about the DUI investigation. This is usually where attorneys establish the basis to challenge the traffic stop and other evidence allegedly collected by the police officer. The State Attorney is notified of the hearing, but I have never seen on show up. So, the officer is under oath, on the record, and isn't being protected by a prosecuting attorney. This often leads to some very interesting testimony. Now, remember, this Administrative Hearing operates under different rules and with a lower burden of proof than the Criminal Case will. So you can still find numerous improprieties and imperfections with the investigation that may be able to be used to defeat the Criminal Case, but still lose the Administrative Hearing and have your license suspended. At the end of the day, all that needs to be established at the Administrative Hearing is Probable Cause...a good reason to believe.

If any of the officers you subpoena fail to appear at the hearing, or give a good reason for their absence, the suspension will be invalidated, you win, and your license is reinstated. However, that isn’t always the best result. If officers don’t appear, you don’t get a chance to question them under oath before Trial unless you get permission from the judge in the Criminal Case. They may prevent you from being able to properly develop any defenses you may have in the Criminal Case…you are just stuck with his report.

Once the Administrative Hearing is over, the Hearing Officer will usually reserve his/her ruling, and come out with a written decision within 10 business days. If the suspension is upheld your license will be suspended. If the initial permit you were issued pending the hearing still has time on it, the permit will remain in effect, but you will have to qualify for a Hardship License to get a new driving permit. If the suspension is invalided, you win and get your license back, pending the outcome of the criminal case.

Next, the focus normally turns to your Criminal Case. Regardless of whether you went through the Administrative Process, your attorney will most likely demand all of the Discovery from the State Attorney. You are entitled to all of the police reports written by any officer participating in your investigation and any audio or video recordings taken during the investigation. Your attorney will examine all of the evidence to ensure that it actually exists, to see if it supports the narratives in the police reports, and to ensure that all of the proper procedures were followed throughout the investigation. It is his job to exploit any anomalies in the investigation, the evidence, or the manner the evidence was collected or generated for the purpose of dismantling the case against you as much as he can.

Once the Discovery phase is complete, possibly prior to its completion, your attorney will begin negotiating to find the best possible plea option as an alternative to going to Trial. The fact that your attorney investigates plea options does not mean you shouldn't go to Trial. Trial is relatively final and comes with the possibility of jail if convicted. Your attorney has an obligation to present you with all of your options. Once he does that it is your choice and your choice alone, as to whether you go to Trial or accept a plea bargain. Many people may choose a plea bargain because they are afraid of a Trial, don't want to pay additional attorney fees normally charged for a Trial, or because they are exhausted by this entire ordeal and simply want it done and over.

In Florida, the DUI statute has minimum mandatory sanctions for anyone who pleas to a DUI, or is found guilty at Trial. For a first time DUI conviction, the statute requires conviction (so you can never have your record sealed or expunged), a 6-12 month suspension of you license (in addition to the Administrative suspension discussed earlier), DUI School, Substance Abuse Counseling, Probation, Impoundment of your car, $500 in minimum fines, 50 hours of Community Service, and participation in a Victim Impact Panel. High blood alcohol levels require hire fines and additional penalties; a second conviction in 5 years requires minimum jail time and a 5 year driver's license suspension; a third conviction in 10 years is a Felony and comes with a 10 license suspension; and a fourth conviction or more, ever, is a Felony and requires a life time revocation of your driver's license. If you enter a plea to a DUI charge, above is the LEAST punishment any judge is allowed to give. Even if you are convicted after a Trial and sent to jail, the judge has to impose the sanctions listed above.

However, if your attorney can find the right defense to your charges, he may be able to get the case dismissed before Trial, or possibly reduced to Reckless Driving or some other lesser charge to avoid a Trial. Under the statute, even if the case is reduced to Reckless Driving, where an intoxicant played a contributing factor, you may still have to take DUI School and Substance abuse counseling. However, if you can get the charge reduced, the penalties become negotiable as there are virtually no minimum statutory sanctions.

So yes, DUI’s are common, but proper defense of them is complicated. If you are ever charged with this offense, select your attorney carefully. There are many specific defenses that I didn’t discuss here, as they tend to be case specific and change from jurisdiction to jurisdiction, but in my opinion, the best chance you have of successfully defeating a DUI charge is by defending BOTH cases…the DUI and the Administrative Suspension.