DUI Defense

Charged with DUI?

Driving under the influence of alcohol or drugs is one of the most reckless and dangerous acts that a person can commit on the roadways. Fatality Analysis Reporting System (FARS) statistics provided by the NHTSA state that 2,262 fatal crashes involving at least one driver with a BAC of .08% or higher occurred in Florida in the year 2010. These numbers are high and law enforcement officials are constantly seeking to bring them down by pulling over suspected drunk drivers and arresting alleged offenders. As a result, you may have been arrested for DUI and be facing severe penalties should you be convicted.

Florida DUI Penalties

The laws for driving under the influence (DUI) can be found in § 316.193, Fla. Stat. (2012). A driver could face a high fine and time in jail if they are determined to be intoxicated to the point of impairment, or if their blood alcohol concentration (BAC) is .08% or higher. A first offense will result in up to six months in jail and a fine of $500-$1,000. A second conviction incurs a jail sentence of up to nine months and a fine of $1,000-$2,000. License suspension is also a consequence of a DUI conviction.

A third conviction within 10 years of the second one is a third degree felony resulting in a prison sentence of up to five years and a fine of up to $5,000. Fourth and subsequent convictions are also third degree felonies, regardless of the length of time since the prior conviction. Felonies of any kind can also result in extended prison terms for "habitual offenses" as stated in § 775.084, Fla. Stat. (2012). Another aggravated situation would be DUI with injury or DUI manslaughter.

Stage One - The Administrative Suspension of Your Driver's License

The first stage in a DUI case is protecting your privileges to drive. After the arrest the officer will take your driver's license and issue you a notice of suspension if:

  • you blew over the legal limit of .08; or
  • you refused to take the requested breath or urine test.

Your DUI citation operates as the notice of suspension. This suspension is sent to the Florida Department of Highway Safety and Motor Vehicle (DMV). The citation itself operates as a 10 day permit so you can continue to drive during the first 10 days after your arrest. During that time, you must do one of the following:

  • retain an attorney to demand a formal review hearing and obtain your 42 day permit so you can continue to drive without interruption;
  • waive your right to contest the suspension and request immediate reinstatement (requires that you first enroll in DUI school and personally appear at the Bureau of Administrative Review Office);
  • do nothing and suffer the 30 or 90 day hard suspension during which time you can not drive for any reason (thereafter you can request a "business purpose only" license for the rest of the suspension period).  

Because you must decide how to protect your driving privileges and take action quickly, it is important to retain a criminal defense attorney during this 10 day period after your arrest.

Stage Two - The Formal Review Hearing to Contest the Suspension

The attorneys at Plotnick Law, P.A. believe it is important to demand the formal review hearing and fight to invalidate the suspension. In many ways, the formal review hearing is the most important part of the case. The evidence gathered during that hearing can often be used to your advantage in the criminal case.

- Reasons the Administrative Suspension is Invalidated

Florida law requires that the hearing officer SHALL invalidate the suspension if the arresting officer or the breath test operator fails to appear. Other reasons to invalidate the suspension might include:

  1. insufficient evidence to support one of the issues in the case;
  2. an illegal stop, detention or arrest;
  3. one breath test reading is below .08 and one is at or above .08;
  4. the officer gave misadvice about the consequences of taking the test or refusing;
  5. a failure to read Miranda warnings prior to a custodial interrogation;
  6. forcing or compelling the defendant to participate in field sobriety exercises;
  7. the twenty minute observation period was not followed just prior to the breath test;
  8. the breath test operator or agency inspector did not have a valid permit; or
  9. the breath test machine was not properly inspected or maintained.

Even if all the witnesses appear at the hearing, other important objections can be raised including the lack of competent and substantial evidence as to one of the required issues in the case.

If you win the hearing, then your administrative suspension will be vacated or set aside. This means it is removed from your driving record as if it never happened. If you win, we will give you a copy of the order. If you take the order to the DMV then you can obtain a duplicate copy of your driver's license.

If the hearing officer refuses to invalidate the suspension that decision can be appealed to a Circuit Court judge through a Writ of Certiorari. The only downside to contesting the administrative suspension is that if you are not successful then a hard suspension will start. During that time you cannot drive for any reason. At the end of the hard suspension, as long as you have enrolled in DUI school and are otherwise eligible, you can obtain a "Business Purpose Only" license for the rest of the suspension period.

Even in cases in which the suspension is not invalidated, the client still wins because important evidence and testimony has been gathered that might lead to a better result in the criminal case. 

 - The Length of the Administrative Suspension

The length of the suspension and hard suspension are listed below:

First Offense

  •  6 months (30 day hard suspension) if you took the test;
  • 12 months (90 day hard suspension) if you refused;

Second Offense

  • 12 months (30 day hard suspension) if you took the test;
  • 12 months (90 day hard suspension) if you refused with no prior refusal;
  • 18 months (18 month hard suspension) if you refused with a prior refusal;

Third or Subsequent Offense

  • 12 months (12 month hard suspension) if you took the test;
  • 12 months (12 month hard suspension) if you refused with no prior refusal;
  • 18 months (18 month hard suspension) if you refused with a prior refusal. 

Stage Three: Fighting Criminal Charges

After your arrest the clerk's office will schedule your first court date called the "arraignment." For individuals that do not have an attorney, the court will read the charges and ask the person to enter a guilty, no contest or not guilty plea. If the person enters a guilty or no contest plea, then the court will adjudicate the person guilty of DUI and impose a sentence which could include jail time and/or probation.

A guilty plea is essentially the same as a "no contest" plea. A conviction results in either case and you can never seal or expunge that mug shot, arrest record, or court record of the conviction. Entering a plea at arraignment is a bad idea because you cannot obtain a hardship license until after you have completed DUI school.

If you cannot afford a private attorney then you should request the services of a public defender. You can say, "I'd like to enter a plea of NOT GUILTY and have an attorney help me with my case." Trying to resolve your case without an attorney is not a good idea. Before entering a plea, at a minimum, you should review all of the police reports and watch the video at the roadside or in the police station.

You should always talk with an attorney about the evidence in your case before considering a plea to the charges. Many of these cases are reduced to less serious charges such as reckless driving. Your criminal defense attorney can always fight for a one or two level (or more) reduction depending on the facts of the case. Each level the charges are reduced can save you thousands of dollars and indirect consequences that would otherwise occur. 

  • Enhanced DUI with Enhanced Penalties for:
    • DUI with Property Damage;
    • Breath or Blood Test BAC at 0.15 or Over
    • DUI with a minor child in the vehicle; 
  • Simple DUI for refusal or a BAC between 0.08 and 0.15;
  • Reckless Driving with an Adjudication (often called the "wet reckless");
      • 6 points in on your driver's license;
      • often comes with an increase in insurance premiums;
      • the adjudication means you can never seal or expunge the record;
  • Reckless Driving with a Withhold of Adjudication;
      • no points on your driver's license;
      • you may be able to seal all records (mug shot, arrest record, court record if you have no prior convictions);
  • Careless Driving (a civil infraction either with or without an adjudication);
  • Charges Dropped or Dismissed.

By entering the plea as charged without any reduction, you may be taking the most disruptive, expensive and prolonged route to resolving your case. 

- How Your Attorney Fights the Criminal Charges

If you retain a private attorney, the attorney will waive your appearance at arraignment and enter a not guilty plea on your behalf. The attorneys at the Plotnick Law, P.A. also file motions to do the following:

  1. Demand that the state attorney's office provides us with a copy of all evidence in the case including the police reports, accident report (if any), video at the scene or at the police station, and information on chemical testing of the breath, blood or urine;
  2. Attack the legal sufficiency of the charging document; and
  3. Move to suppress, exclude or limit certain evidence in the case.

After the arraignment, another court date will be scheduled each month thereafter (called the "disposition"). In most cases, your attorney can waive your appearance at these court dates. During these initial court dates your attorney will secure a copy of all evidence in your case. Your attorney may also file additional motions to suppress or exclude that evidence.

After all discovery has been exchanged by your attorney and the prosecutor with the Assistant State Attorney, then the case will be scheduled for motion hearings, a pre-trial conference and trial. Your appearance is required at these court dates. 

- Reasons to Fight the DUI Charges

Hiring an experienced lawyer to fight your case may help you avoid a conviction which may save you thousands of dollars in fines, court costs, expenses for DUI school, vehicle impound, time and energy to complete 50 hours of community service and drastically increased insurance premiums. Avoiding a DUI conviction might also save you thousands of dollars each year for the next three (3) to five (5) years in increased car insurance premiums. After a DUI conviction, you are required to obtain a high-risk and more expensive form of insurance called "FR-44" insurance.

The most common way to avoid a DUI conviction occurs when the prosecutor agrees to amend the charge to "reckless driving." If the officer's decision to stop the vehicle was unreasonable under the Fourth Amendment, then all evidence in the case could be excluded which could leads to all charges being dropped. Your attorney will discuss these options with you which depend almost entirely on the particular facts and circumstances of your case.

The Legal Definition - Two Alternative Ways of Proving DUI

The statute provides for two different theories that the prosecutor might use in an attempt to prove that you are guilty. First, the prosecutor can attempt to show that you were under the influence of alcohol or an intoxicating substance to the extent that your normal faculties were impaired due to alcohol intoxication or drug impairment.

Alternatively, the prosecutor can attempt to show that your performance on a chemical test, such as a breath or blood test showed a blood alcohol level of .08% or above. Regardless of the theory under which your case is prosecuted, the penalties are generally the same. Certain enhanced penalties apply if the prosecutor proves that your breath test reading was over .15 including the dreaded ignition interlock device and a higher fine. The charges are also more serious if you are charged with DUI with property damage or while a minor child was in the vehicle. 

If you have been arrested for drunk driving ("DUI"), including a breath test, urine test or blood test case, a refusal case, or crash with property damage, then call us to discuss the case today.

Refusal to Submit to the Breath Test

When the State of Florida attempts to prosecute a Driving Under the Influence case, the strongest evidence is usually the results of a chemical test, including a breath test, blood test, or urine test showing that the driver was intoxicated with alcohol, prescription drugs, or a controlled substance. If the driver refuses to submit to a chemical test (called a "DUI Refusal BAC" in Tampa, Hillsborough County, FL), then the State no longer has that evidence.

Instead, the prosecutor will them attempt to admit evidence that the driver "refused" to submit to the test and other circumstantial evidence. The prosecutor will argue that this refusal demonstrates a "guilty conscience" or the driver's belief that if he submitted to the chemical test, the test results would show that he was intoxicated from alcohol or impaired by prescription drugs or other controlled substances.

In determining whether to admit or exclude the evidence that the driver refused to submit to the test the Court will consider state and federal constitutional provisions, the rules of evidence, common law provisions, statutory rules, and administrative rules. Furthermore, if the law enforcement officer violates a driver's constitutional or statutory rights to an attorney before the blood, breath or urine test, then the Court can exclude or throw out any evidence that the defendant declined to take the chemical test.

Many refusal cases are difficult for the prosecutor to take to trial because the prosecutor's most important piece of evidence, the test result, does not exist. If you have been charged with DUI refusal in or around Hillsborough County then talk with an experienced attorney before you decide how to proceed with your case.
If you have previously had your driver license suspended for refusing to submit to a chemical test, then the consequences for a second or subsequent refusal will probably be an additional criminal charge for a first degree misdemeanor. In July of 2002, the Florida Legislature criminalized a second refusal to a breath, blood or urine test.

If you refuse to take a breath test a second time you may find yourself charged with two separate offenses, DUI and a "second refusal to submit" charge. Even if you win the DUI case, you could still be convicted of the refusal charge. The constitutionality and limitations of this new criminal offense for a "second refusal to submit" has not been fully addressed by the appellate courts.

Defenses exist to fight this separate charge of refusing to submit to a chemical test for a second time. Contact the attorneys at Plotnick Law, P.A. to discuss defenses that may be available under Florida law for the particular facts and circumstances in your case.

Plotnick Law, P.A. serves clients throughout the Tampa Bay Area including but not limited to; St. Petersburg, Clearwater, & Bradenton

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| Phone: 727-577-3300
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