A Guide To Florida DUI Offenses And Hiring An Attorney To Protect Your Rights, And Future

Suskauer Feuer, LLC, located in West Palm Beach, provides criminal defense for all DUI and Drunk Driving offenses.

Being charged with a DUI is a serious matter that can have long lasting consequences both for the person accused and his or her loved ones. In addition to possible jail time, a conviction may also mean hefty fines, lost income due to missed work, and revocation of driving privileges. Moreover, a DUI conviction is part of a person’s criminal record, which can limit career and other opportunities.

Given these stakes, it is imperative that a person in need of a Palm Beach DUI lawyer obtain the counsel of an experienced criminal defense attorney who can explain the legal process, weigh the options, and mount the strongest possible defense in an effort to avoid conviction or soften the penalties that come with it. There are a number of complex legal issues that may come up in a DUI case, and selecting a skilled trial lawyer can mean the difference between conviction and acquittal.

At Suskauer Feuer, LLC, we have more than a decade of experience representing clients throughout South Florida in a wide variety of criminal cases, including many involving DUI charges. We are dedicated to providing aggressive legal representation, protecting our clients’ rights while exploring every possible angle to attack the prosecution’s case.

If you or a loved one is facing drunk driving, driving while impaired or a DUI (Driving Under the Influence) charge, it is a serious offense that can result in loss of driver’s license, heavy fines, increased insurance premiums and other penalties. Your vehicle may be immobilized and/or impounded. You should seek the assistance and guidance of an experienced DUI defense attorney.

DUI Offenses in Florida

Driving Under the Influence (DUI), or Driving While Intoxicated (DWI), is a serious, criminal offense in Florida. An offender’s “normal faculties” are considered “impaired” if he or she has been driving a personal vehicle with a blood or breath alcohol level (BAL) of .08 or above. If an offender is driving a commercial vehicle, he or she is considered impaired with a blood alcohol level of .04 or above. Persons under age 21 are considered impaired with a blood alcohol level of .02 or above.

Phases of a DUI Case

Following the charge, there are a number of additional proceedings, pending which the person accused may be incarcerated. If the person blows a .08 or higher on the breath test, his or her license will be suspended for six months, or one year for repeat offenders. If the person refuses to take the breath test, the suspension is increased to one year, or 18 months for repeat offenders. A driver has only 10 days from the date of the arrest to request an administrative hearing to challenge a license suspension.

At Suskauer Feuer, LLC, our team understands the intricacies of the criminal justice system as well as the specific legal issues that regularly arise in DUI cases. As a former prosecutor, Leonard S. Feuer is an accomplished, well-respected attorney with a unique insight into how the prosecution will approach your case, as well as the strategies upon which the state often relies. Having both prosecuted and defended hundreds of DUI cases over the course of his career, Mr. Feuer is well versed in the complex issues a DUI charge can raise, and treats each individual client with compassion and respect.

 

• The Stop
• Roadside Testing
• Tests for Impairment
• Drivers License Suspensions
• Fighting the Charges
• Penalties

Being arrested for Driving Under the Influence can be a highly stressful event. The information listed in the site is dedicated to helping those who have been arrested for DUI as well as those who may be looking to educate themselves as to Florida’s DUI laws.

This article is separated into the distinct phases of a DUI case in the State of Florida. While this site does not attempt to cover every aspect of a DUI prosecution, it does give a comprehensive overview of most of the important aspects of a DUI charge, including the initial contact with law enforcement (The Stop), the methods of testing for impairment at roadside (Roadside Testing), the scientific testing offered as part of implied consent (Tests For Impairment), the motorist’s driver’s license suspension (Driver’s License Suspensions), and finally disputing the criminal DUI charge (Fighting The Charge).

The DUI Stop

INITIAL CONTACT WITH THE POLICE

The Constitutions of the United States and the State of Florida afford the same level of protection of individuals against unreasonable searches and seizures by law enforcement officers. When a police officer initiates a traffic stop, the motorist being pulled over is deemed to have been seized, even if temporarily.

Typically, the stopping of a motorist by the police will be deemed to have been a reasonable seizure under one of the following circumstances.

1. The police have probable cause to believe the motorist has committed a traffic infraction, such as speeding;
2. The police have a well-founded reasonable articulable suspicion that the motorist has committed a criminal offense; or
3. The police officer has witnessed a driving pattern indicating the motorist is sick, tired or is experiencing some form of distress.

“Probable cause” exists where the facts and circumstances within an officer’s knowledge are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.

A “reasonable suspicion” of criminal activity must be more than just an unparticularized suspicion or mere hunch, and must be supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause. The Fourth Amendment requires some minimal level of objective justification for making the stop.

THE DRIVING PATTERN:

The driving pattern is usually the first series of observations a police officer will consider when determining whether to arrest a motorist for DUI. A stop of a motorist for swerving within or outside a lane of traffic is much more likely to result in an arrest for driving under the influence than a traffic stop for speeding. Police officers are trained to gather evidence by observing and scrutinizing the actions of those they encounter, an officer who witnesses a vehicle swerve may prejudge the motorist as likely being impaired, even before stopping the motorist.

Some of the most common reasons police cite as justification for stopping a motorist involve:

1. Speeding
2. Failure To Maintain A Single Lane Or Weaving/Swerving Within The Vehicle’s Lane Of Travel
3. Failure To Obey A Traffic Control Device (Stop Light / Stop Sign)
4. Unlawful or Too Dark Window Tint
5. Failure To Use Seatbelt
6. Malfunctioning Tag or Tail Light

The video embedded herein is of the driving pattern of a motorist who was charged with DUI and acquitted at trial. The motorist admitted to having a couple of drinks between five and seven hours earlier. From the video, do you think the stop was justified?

CAR ACCIDENTS & THE “ACCIDENT REPORT PRIVILEGE”

In Florida, a motorist involved in an accident who does not flee the scene of the accident, has a statutory right to not have his/her statements used against him/her. This “accident report privilege” does not cover observations of the physical appearance or mannerisms of the motorist an investigating officer may make, such as whether the motorist has an odor of alcoholic beverages emanating from his/her person, slurred speech, bloodshot eyes, etc., etc.

Florida Statute §316.066(7) mandates that no statement made to a law enforcement officer for the purpose of assisting in the investigation of an accident shall be used in evidence any trial, civil or criminal. The immunity provided by this Accident Report Privilege is equivalent to that required by the 5th Amendment to the United States Constitution. The purpose of this privilege is to foster honest and complete disclosure of the facts contributing to traffic accidents from the people who would most be privy to such facts, the participants, which is an important public interest.

In order for the police to stop the accident report privilege from applying, a police officer must communicate to the motorist that the traffic investigation has ended, that a criminal investigation is beginning, and then issue the motorist Miranda warnings, before any statement by the motorist may be admitted.

INITIAL CONTACT WITH POLICE

A motorist’s initial face-to-face contact with a stopping police officer may not be the chance to make a first-impression the motorist thinks it is. Before exiting the police car, any officer with a laptop computer or a radio knows the driver’s traffic and criminal history. The officer stopped the motorist for a reason and that reason likely included forming a bias as to the motorist’s conduct and whether the encounter will result in an arrest.

When an officer makes face-to-face contact with the motorist, the officer is looking for cues of impairment such as the smell of an alcoholic beverage, bloodshot eyes, slurred speech, an inability to readily answer questions about location and direction of travel, whether the motorist has slow physical responses to a request for a license, insurance or registration. A great many police departments in the State of Florida equip their traffic patrol cars with video cameras. A motorist should expect that their entire interaction with law enforcement may be recorded, and there is absolutely no requirement to inform the motorist that the encounter is being recorded. However, audio and video recordings are a double-edged sword for the police, and often wind up exposing flaws in a police officer’s ability to accurately recount the details of a traffic stop.

 

Field Sobriety Tests in Palm Beach County

If you are stopped by a Florida law enforcement officer because he or she suspects that you are driving under the influence of alcohol, the officer will likely administer a Field Sobriety Test. You will be asked to perform simple mental acuity tests and tasks that require physical coordination. If the officer determines that you are exhibiting signs of intoxication, you may be asked to submit to a breathalyzer exam and/or a blood or urine alcohol test. Holders of Florida driver’s licenses must agree to submit to these exams. Refusal to comply will result in a license suspension for a period of one year. Refusal to comply for a second time in your life will result in an 18 month suspension and a possible misdemeanor charge.

If the evidence shows you are intoxicated, you will be arrested and charged. Your car will be impounded and you will not be released until you are no longer under the influence of alcohol, your blood alcohol level is below .05, or eight hours have passed since your arrest.

Once an officer suspects that a person is impaired, an officer trained in the administration of field sobriety tests or roadside exercises should request the motorist to perform a series of tasks at roadside, preferably on a flat, even surface with good lighting conditions. The roadside tests or exercises are psychomotor exercises: the walk-and-turn, one-legged stand, balance test and finger-to-nose test. These tests require the test subject to divide his or her attention between mental and physical tasks. In theory, a subject under the influence of alcohol will have difficulty in coping with the divided attention required of these tasks. The first exercise described herein, the Horizontal Gaze Nystagmus is not a task that would provide commonly understood cues of impairment, as discussed below.

The roadside exercises are not for everyone, and may yield negative results having nothing to do with levels of impairment if the motorist suffers from problems with his/her neck, back, knees, legs, feet, joints, eye-sight, middle-ear, is overweight or is just tired or out of shape.

A motorist should not agree or refuse to perform the roadside physical testing without thinking it through. The officer should explain that a motorist who refuses to perform the exercises may have that refusal used against them later, as consciousness of guilt. Meaning, that the motorist refused to perform the roadside exercises because he/she knew that it would show he/she was impaired. However, a person who chooses to perform is subjecting that performance to a highly subjective evaluation by the officer of a series of physical tests the motorist is trying for the first time, in public, without any prior opportunity to practice.

HORIZONTAL GAZE NYSTAGMUS (HGN):

“Nystagmus is a physiological condition which refers to an involuntary rapid movement of the eyeball, which may be horizontal, vertical or rotary. An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words jerking or bouncing) is known as horizontal gaze nystagmus, or HGN.” State v. Meador, 674 So.2d 826, 833 (Fla. 4th DCA 1996).

In the HGN test the driver is asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision toward his ear, he watches the driver’s eyeball to detect involuntary jerking. The test is repeated with the other eye. By observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver’s blood alcohol content (BAC) exceeds the legal limit of .10 percent. See State v. Superior Court In and For Cochise County, 149 Ariz. 269, 271, 718 P.2d 171, 173 (Ariz. 1986).

At trial, if the motorist refused scientific testing, such as breath or blood tests, the HGN test results should not be admitted as lay observations of impairment because HGN testing constitutes scientific evidence. Thus, although the evidence may be relevant, the danger of unfair prejudice, confusion of issues, or misleading the jury requires the exclusion of the HGN test evidence unless the traditional predicates of scientific evidence are satisfied.

WALK-AND-TURN:

The Walk-And-Turn test requires that the motorist listen to and follow instructions while performing physical movements. In theory, only impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises. In practice, there are a wide-variety of reasons why a sober person would have trouble performing the Walk & Turn test.

In the Walk-and-Turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for eight indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps.

The officer administering the test will note as failure any occurrence of the following:

• Cannot balance during instructions.
• Starting before instructions are completed.
• Stops Walking to regain balance or steady self.
• Does not touch heel-to-toe.
• Steps off the line.
• Uses arms for balance.
• Loses balance on turns or turns incorrectly.
• Incorrect number of steps.
• Any inability to perform.

ONE LEG STAND

In the One-Leg Stand test, the motorist is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down.

The officer administering the test will note as failure any occurrence of the following:

• Swaying while balancing.
• Uses arms for balance.
• Hopping.
• Putting foot down.
• Any inability to perform.

FINGER TO NOSE:

The motorist is told to place his or her hands at his or her sides, extend index fingers, and remain in that position until told to begin. Then, told to touch the tip of his/her nose with the hand specified, then to return the hand to his or her side. The motorist is instructed to close his or her eyes and tilt his or her head back, maintaining that position until the task is over.

The officer administering the test will note as failure any occurrence of the following:

• Does not keep eyes closed.
• Does not point forward prior to touching nose.
• Misses tip of nose with index finger.
• Uses wrong hand.
• Forgets to remove finger.
• Any inability to perform.

RHOMBERG ALPHABET:

The Rhomberg Alphabet test is a non-standardized test that has not been adopted by the National Highway Traffic Safety Administration. The motorist is asked to recite the alphabet non-rhythmically while standing with his or her feet together, hands at his or her side with his or her head tilted back.

The officer administering the test will note as failure any occurrence of the following:

• Does not keep eyes closed.
• Swaying.
• Uses arms for balance.
• Any inability to perform.

WHAT ABOUT MY MIRANDA RIGHTS?

In the case of Berkemer v. McCarty, 468 U.S. 420 (1984), the U.S. Supreme Court held that the roadside questioning of a motorist detained pursuant to a routine traffic stop did not constitute “custodial interrogation,” and therefore did not require that the motorist be advised of the Miranda rights. Notwithstanding, if a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders the motorist “in custody” for practical purposes, he or she is entitled to the full panoply of protections prescribed by Miranda.

DUI Testing for Impairment. What to Expect When Pulled Over for DUI in South Florida…

In Florida, Driving Under The Influence of alcohol beverages, or any chemical substance set forth in Florida Statute § 877.111, or any substance controlled by Chapter 893 of the Florida Statutes, may be proven in one of two ways.

To prove the crime of Driving under the Influence, the State must prove the following two elements beyond a reasonable doubt:

IMPAIRMENT OF NORMAL FACULTIES:

1. The Motorist drove or was in actual physical control of a vehicle.
2. While driving or in actual physical control of the vehicle, the Motorist was under the influence of alcoholic beverages (or chemical substance or controlled substance) to the extent that his or her normal faculties were impaired.

Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

OR

DRIVING WITH AN UNLAWFUL BREATH-ALCOHOL LEVEL (DUBAL):

1. The Motorist drove or was in actual physical control of a vehicle.
2. While driving or in actual physical control of the vehicle, the Motorist had a Blood-Alcohol or Breath-Alcohol level of .08 or more.

Florida Statute § 316.1932 provides that anyone who accepts the privilege of operating a motor vehicle in the State of Florida is deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.

The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages. The administration of a breath test does not preclude the administration of another type of test.

BREATH TESTING:

Law enforcement agencies in the State of Florida must utilize an “approved test” in order to comply with the Implied Consent regime of laws. Florida’s Administrative Code specifies that the “Intoxilyzer 5000” and the “Intoxilyzer 8000” are approved for breath testing.

The actual breath testing, in order to be admissible in court, must be according to a checklist set forth by the Florida Department of Law Enforcement, and published in Form 37.

Florida Administrative Code § 11D-8.002(12), sets forth that in order to be an “Approved Breath Test,” or a breath test that may be admitted into evidence in a DUI trial under the Implied Consent regime of laws, the test must meet the following criteria:

A minimum of two samples of breath collected within 15 minutes of each other, analyzed using an approved breath test instrument, producing two results within 0.020 g/210L, and reported as the breath alcohol level. If the results of the first and second samples are more than 0.020 g/210L apart, a third sample shall be analyzed. Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test.

The term “Breath Alcohol Level” – is defined as “the alcohol concentration by weight in a person’s breath based upon grams of alcohol per 210 liters of breath (g/210L).”

BLOOD TESTING:

There are several ways for Blood testing to occur in the course of a DUI investigation.

THE MOTORIST ASKS TO GIVE A BLOOD SAMPLE AFTER A BREATH TEST:

Any person who has submitted to a test of his or her blood, breath or urine has a right to have an independent test performed. Florida Statute § 316.1932(1)(f)(3) sets forth:

The person tested may, at his or her own expense, have a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person of his or her own choosing administer an independent test in addition to the test administered at the direction of the law enforcement officer for the purpose of determining the amount of alcohol in the person’s blood or breath or the presence of chemical substances or controlled substances at the time alleged, as shown by chemical analysis of his or her blood or urine, or by chemical or physical test of his or her breath. The failure or inability to obtain an independent test by a person does not preclude the admissibility in evidence of the test taken at the direction of the law enforcement officer. The law enforcement officer shall not interfere with the person’s opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is on the person to arrange and secure the test at the person’s own expense.

THE MOTORIST HAS BEEN INVOLVED IN AN ACCIDENT INVOLVING SERIOUS BODILY INJURY TO ANOTHER:

In the event the motorist has been involved in a car accident, where it appears that someone has suffered serious bodily injury, and the investigating officer has cause to believe that the motorist is DUI, the police may compel a blood draw, without the actual consent of the motorist, and by force, if necessary. Testing under this scenario does NOT require the arrest for DUI to have occurred prior to the blood-sample being taken.

THE MOTORIST HAS BEEN TAKEN TO THE HOSPITAL AND IT IS IMPRACTICAL TO GIVE A BREATH TEST:

In the event the motorist suspected of DUI is unable to be taken to the facility where breath testing occurs, because it would interfere with medical treatment, the investigating officer may lawfully request a blood sample under the Implied Consent regime of laws. Testing under this scenario does NOT require the arrest for DUI to have occurred prior to the blood-sample being given. Florida Statute § 316.1932(1)(c) sets forth that :

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible. As used in this paragraph, the term “other medical facility” includes an ambulance or other medical emergency vehicle. The blood test shall be performed in a reasonable manner. Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such test. A blood test may be administered whether or not the person is told that his or her failure to submit to such a blood test will result in the suspension of the person’s privilege to operate a motor vehicle upon the public highways of this state and that a refusal to submit to a lawful test of his or her blood, if his or her driving privilege has been previously suspended for refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor.

Florida Administrative Code § 11D-8.002(11), sets forth that in order to be an “Approved Blood Test,” or a blood test that may be admitted into evidence in a DUI trial under the Implied Consent regime of laws, the test must meet the following criteria:

Approved Blood Alcohol Test – the analyses of two separate portions of the same blood sample using a Department-approved blood alcohol test method and a Department-approved procedure, with results within 0.010 grams of alcohol per 100 milliliters of blood (g/100mL), and reported as the blood alcohol level.

The term “Blood Alcohol Level” is defined as “the alcohol concentration by weight in a person’s blood based upon grams of alcohol per 100 milliliters of blood (g/100mL).”

URINE TESTING:

Typically, an investigating officer will request a urine sample from someone who has taken a the breath test and either registered no presence of breath-alcohol or registered a breath-alcohol level that is not consistent with the degree of impairment the officer believes he or she has observed.

In cases where the breath test has yielded a low result that is inconsistent with the level of impairment that the investigating officer believes he or she has observed, the officer will often request that a “Drug Recognition Expert” (DRE) respond to assist in the investigation. DRE which is a title bestowed upon officers who have completed a an additional training course in the detection of types of impairment. An officer who is a DRE is not a doctor or nurse by virtue of taking the additional DRE course. A DRE officer will offer the motorist a new set of physical exercises and seek to record more of the physical signs of impairment, such as pulse, pupil response, muscle tone, and blood pressure.

Prosecuting cases where the only scientific evidence of impairment by a chemical or controlled substance is a urine sample can be problematic for the State. The toxicologist that the State will invariably call to testify will have to admit that a urine sample will only confirm the presence of a substance and NOT whether the person was under its influence at the time he or she was driving.

Florida DUI Suspensions

In Florida, any person arrested for DUI is supposed to be offered a breath test as an incident to arrest. At the point where the person is offered a breath test, either the breath test operator or the arresting officer must read the Implied Consent warnings in order for the Department of Highway Safety and Motor Vehicles to suspend the license of a motorist who refuses to submit to testing. Florida’s Implied Consent law is set forth in Florida Statute 316.1932.

THE IMPLIED CONSENT WARNINGS:

“If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (l8) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor. Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding.”

SUSPENSIONS FOR BLOWING .08 OR ABOVE in PALM BEACH COUNTY:

A motorist who has been arrested for DUI and elects to submit to breath or blood testing and is found to have a blood-alcohol level or breath-alcohol level of 0.08 or higher will have his or her driving privilege suspended for a period of 6 months for a first offense or for a period of 1 year if his or her driving privilege has been previously suspended.

SUSPENSIONS FOR REFUSING TESTING IN PALM BEACH COUNTY:

The driver’s license of a motorist who refuses to submit to testing will be suspended as of the arrest date for one year for the first offense and 18 months for any subsequent offenses. On the date of arrest, the motorist will be given a 10-day permit and when the permit expires must serve 90 days of the suspension before the driver is eligible to apply for a hardship license on the first suspension. No hardship license is permitted if you have refused to submit two or more times.

WAIVER OF RIGHT TO REVIEW IN PALM BEACH COUNTY COURT:

Any person whose license was suspended for refusing to submit to a breath test, or whose license was suspended for submitting to a test with a breath alcohol content of .08 or above, and has no prior DUI convictions or prior DUI related license suspensions, may waive the right to a hearing to review the suspension and then be considered eligible for a “business purposes only license in effect for the duration of the suspension. In addition to waiving the right to review the propriety of the suspension, the person seeking the restricted license must enroll in or complete the DUI program substance abuse education course and evaluation (also known as “DUI School”).

“A driving privilege restricted to business purposes only” means a driving privilege that is limited to any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes.”

CHALLENGING THE FLORIDA DUI SUSPENSION IN PALM BEACH COUNTY:

In the event of a refusal to submit to testing, or if having submitted to a test, having a blood-alcohol or breath-alcohol level of .08 or above, the motorist has 10 DAYS from the date on the citation to request an Administrative Review Hearing (Formal or Informal) for the express purpose of contesting the license suspension. In order to initiate a formal or informal review, the request must be made in writing, and should be made on HSMV Form 78065.

A person seeking to challenge license a suspension may either request a Formal or an Informal Review Hearing. In Formal and Informal Review Hearings, the Hearing Officer is charged with determining by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:

If the license was suspended for refusal to submit to a breath, blood, or urine test:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

If the license was suspended for driving with an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in Florida Statute § 316.193.

INFORMAL REVIEW HEARINGS:

If the person whose license was suspended requests an informal review, a hearing officer employed by the Department of Highway Safety and Motor Vehicles shall conduct the informal review. Such informal review hearing shall consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person whose license was suspended, and the presence of an officer or witness is not required.

FORMAL REVIEW HEARINGS:

If the person whose license was suspended requests a formal review, the Department of Highway Safety and Motor Vehicles must schedule a hearing to be held within 30 days after such request is received and must notify the person or his or her attorney of the date, time, and place of the hearing. Formal Review Hearings are be held before a hearing officer employed by the Department of Highway Safety and Motor Vehicles, who is authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses, regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension.

How do I reinstate my license after a suspension for refusal to submit to a breath/urine test in Palm Beach County Florida?

After the person whose license has been suspended has served 90 days of the suspension, the person is then eligible to apply for a hardship license on the first suspension. The person seeking a hardship license MUST provide proof of enrollment in a DUI School to the Administrative Reviews Office (see listing “Under Suspension – Need Driver License for Work”) for consideration for a hardship license. At the time of reinstatement, whether for a hardship license or a full license, the person seeking a hardship license or reinstatement MUST take the required examination, and pay an Administrative fee and suspension reinstatement fee and any license fee required. The person seeking a hardship license or reinstatement MUST show proof of the appropriate required coverage of bodily injury liability insurance if convicted of the DUI charge.

How do I reinstate my license after a suspension for having a Blood-Alcohol Level or Breath-Alcohol Level of .08 or Above in Palm Beach County Flordia?

After the person whose license has been suspended has actually served 30 days of the suspension, the person becomes eligible to apply for a hardship license. The person whose license has been suspended will be eligible for a hardship license on the first and any consecutive suspension, unless the person has been convicted of DUI two or more times. Anyone seeking a hardship license MUST provide proof of enrollment in a DUI School to the Administrative Reviews Office (see listing “Under Suspension – Need Driver License for Work”). Anyone seeking reinstatement after the license revocation period ends, MUST provide proof of DUI School enrollment or completion to the driver license office. Failure to complete the course within 90 days after reinstatement will result in cancellation of the person’s driver license until the course is completed. At the time of reinstatement, whether for a hardship license or a full license, the person seeking the license MUST take the required examination, and pay anAdministrative fee and suspension reinstatement fee and any license fee required. The person seeking a hardship license or reinstatement MUST show proof of the appropriate required coverage of bodily injury liability insurance if convicted of the DUI charge.

Fight Drunk Driving Charges

At The Feuer Law Firm, we believe that every step taken in the course of representing a client charged with DUI should be toward preparing for trial. In other words, every step not taken towards maximizing the client’s chances for acquittal is a wasted step. Even if the client does not want to ultimately make the State prove its case beyond a reasonable doubt at trial, the best way to negotiate a pretrial outcome is to make the Prosecution think it may not win at trial.

In furtherance of the above-stated philosophy, a client can expect that his or her attorney will investigate the case fully and seek to test and scrutinize the statements of the Prosecutor’s witnesses.

Another method of attacking the Prosecution’s case and advocating for the accused is to challenge the way in which the evidence was obtained by the police. If evidence has been obtained through a violation of a client’s constitutional or statutory rights, a client should expect his or her attorney to file a Motion to Suppress. If the trial court grants a Motion to Suppress, the result is typically the exclusion of any evidence learned or obtained as a result of the violation of the client’s rights. The effect of eliminating evidence in a DUI can often mean the end of the Prosecution’s case.

MOTIONS TO SUPPRESS

A Motion to Suppress evidence may be directed at a wide variety of circumstances involving the interaction between a person and the police. Such circumstances include arguing there was a lack of reasonable suspicion of criminal activity before the initial moments of contact between a defendant and the police, or the lack of probable cause to arrest, or the failure to properly advise a suspect of his or her Constitutional rights (i.e., to remain silent and to have the benefit of a lawyer before & during interrogation), or the voluntariness of the statements made by the accused, even after the police properly advise a person of his or her rights.

TRIALS

The Prosecution is required to prove its case beyond ant to the exclusion of any reasonable doubt. Reasonable doubt can come from the evidence, from conflicts in the evidence, and from a lack of evidence.

Florida DUI Penalties

The statutory penalties for Driving Under The Influence are set forth as follows:

1ST DUI – NO ACCIDENT OR INJURY

1. Monthly Reporting Probation for a term up to 1 year
2. DUI School and Any Recommended Substance Abuse Treatment
3. Court Costs
4. At least 50 Community Service Hours
5. A fine of not less than $500 or more than $1,000.
6. Imprisonment (county jail) for not more than 6 months, or up to 9 months if the driver’s blood or breath alcohol level is .15 or higher or if the DUI driver is accompanied by a minor (anyone under 18 years of age).
7. Vehicle Impoundment for a period of 10 days.

2ND DUI WITHIN 5 YEARS OF A PRIOR DUI CONVICTION – NO ACCIDENT OR INJURY

1. Monthly Reporting Probation for a term up to 1 year
2. DUI School and Any Recommended Substance Abuse Treatment
3. Court Costs
4. A fine of not less than $1,000 or more than $2,000 for a second conviction.
5. Imprisonment (county jail) for not less than 10 days and more than 9 months, or up to 12 months if the driver’s blood or breath alcohol level is .15 or higher, or if the DUI driver is accompanied by a minor (anyone under 18 years of age).
6. Mandatory placement for a period of at least 1 year, at the convicted person’s sole expense, of an ignition interlock device.
7. Vehicle Impoundment for a period of 30 days.

2ND DUI MORE THAN 5 YEARS AFTER A PRIOR CONVICTION – NO ACCIDENT OR INJURY

1. Monthly Reporting Probation for a term up to 1 year
2. DUI School and Any Recommended Substance Abuse Treatment
3. Court Costs
4. A fine of not less than $1,000 or more than $2,000.
5. Imprisonment (county jail) for not more than 9 months.
6. Mandatory placement for a period of at least 1 year, at the convicted person’s sole expense, of an ignition interlock device.

3RD DUI WITHIN 10 YEARS OF A PRIOR CONVICTION

Any person who is convicted of a third DUI, where the date of the offense is within 10 years of a prior DUI conviction, commits a felony of the third degree. If convicted, the minimum incarcerative penalty is 30 days imprisonment. The maximum penalty for a felony of the third degree is 5 years in state prison. (However, if the person was not represented by an attorney during the prosecution of any of the prior DUI charges used to enhance the present DUI charge to a felony, the present DUI charge may not be able to be punished as a felony.) In addition, mandatory placement for a period of at least 2 years, at the convicted person’s sole expense, of an ignition interlock device.

3RD DUI MORE THAN 10 YEARS AFTER A PRIOR CONVICTION – NO ACCIDENT OR INJURY

By a fine of not less than $2,000 or more than $5,000 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.

4TH DUI & BEYOND

Any person who is convicted of a fourth or subsequent DUI, regardless of when any prior conviction for a violation of this section occurred, commits a felony of the third degree. The maximum penalty for a felony of the third degree is 5 years in state prison. (However, if the person was not represented by an attorney during the prosecution of any of the prior DUI charges used to enhance the present DUI charge to a felony, the present DUI charge may not be able to be punished as a felony.)

DUI – CAUSING OR CONTRIBUTING TO CAUSING DAMAGE TO PROPERTY OR PERSON OF ANOTHER:

Any person who is driving under the influence and by operation of a vehicle causes or contributes to causing damage to the property or person of another commits a misdemeanor of the first degree, punishable by a maximum of 1 year incarceration.

DUI – CAUSING OR CONTRIBUTING TO CAUSING SERIOUS BODILY INJURY

Any person who is driving under the influence and by operation of a vehicle causes or contributes to causing serious bodily injury to another commits a felony of the third degree, punishable by a maximum of 5 years in state prison.

DUI MANSLAUGHTER:

Any person who is driving under the influence and by operation of a vehicle causes or contributes to the death of any human being commits a felony of the second degree, punishable by a maximum of 15 years state prison. However, if at the time of the crash, the person knew or should have known, that the crash occurred; and the person failed to give information and render aid as required by Florida Law, the person commits a felony of the first degree, punishable by a maximum of 30 years in state prison.

Definition of a DUI Offense

Under Florida law, DUI (drunk driving) is one offense, proved by impairment of normal faculties or unlawful blood alcohol or breath alcohol level of .08 or above. Typically, law enforcement attempts to determine if someone is under the influence of alcohol by administering a roadside sobriety test, followed by a blood alcohol (breathalyzer) test. DUI charges may involve one or more of the following:

• Multiple DUI
• Vehicular Manslaughter
• Breath & Blood Tests
• Field Sobriety Tests
• Suspended License

To learn more about the inner workings of the legal process in Palm Beach County, relating to DUI charges, click here to watch the “The Legal System” featuring our own West Palm Beach criminal defense attorney Michelle Suskauer.

Potential Punishments for a DUI Offense

The penalties upon conviction are the same, regardless of the manner in which the DUI offense is proven. Penalties (misdemeanor or felony) will vary depending on whether it is one’s first, second, third, fourth or subsequent DUI / drunkin’ driving conviction and whether the incident involved an accident that caused property damage, personal injury (bodily injury), DUI manslaughter or vehicular homicide. Individuals could face fines, community service, probation, imprisonment (jail / incarceration), vehicle impoundment, loss of drivers license, DUI school and installation of an ignition interlock device. In some cases, time spent in an alcohol / drug rehabilitation center will count toward jail time sentenced.

DUI Penalties – Fines

If you are convicted of a DUI offense in Florida, either by pleading guilty or being found guilty, you will be sentenced according to state law, in addition to any discretionary penalties that may be imposed, depending upon the jurisdiction in which the offense took place. In the State of Florida, a conviction of a DUI will remain on your record for 75 years.

Florida Statute 316, stipulates the following conditions and penalties for a DUI conviction:

• First Conviction: Not less than $500, or more than $1,000. With Blood/Breath Alcohol Level (BAL) of .15 or higher or with a minor in the vehicle: not less than $1,000, or more than $2,000.
• Second Conviction: Not less than $1,000, or more than $2,000. With a BAL of .15 or higher, or with a minor in the vehicle: not less than $2,000, or more than $4,000.
• Third Conviction-(more than 10 years from second): Not less than $2,000, or more than $5,000. With BAL of .15 or higher or with a minor in the vehicle: not less than $4,000.
• Fourth or Subsequent Conviction: Not less than $2,000.

In addition, if you are a first-time offender, you will be required to serve a mandatory 50 hours of community service or an additional fine of 10 dollars for each hour of required community service. You may also be placed on probation and/or imprisoned for a total period of one year with a maximum prison sentence of six months.

DUI Penalties – Imprisonment

At the court’s discretion, sentencing terms may be served in a residential alcoholism or drug abuse treatment program, credited toward the term of imprisonment.

• First Conviction: Not more than 6 months. With a BAL of .15 or higher or with a minor in the vehicle: not more than 9 months.
• Second Conviction: Not more than 9 months. With a BAL of .15 or higher or with a minor in the vehicle: not more than 12 months. If the second conviction is within 5 years, mandatory imprisonment of at least 10 days. At least 48 hours of confinement must be consecutive.
• Third Conviction: If a third conviction is within 10 years, mandatory imprisonment of at least 30 days. At least 48 hours of confinement must be consecutive. If the third conviction is more than 10 years, imprisonment for not more than 12 months.
• Fourth or Subsequent Conviction: Not more than 5 years or as provided in Florida Statute 775.084, as a habitual/violent offender.

Other DUI Offenses

According to Florida statute:

• Any person who causes property damage or personal injury to another while driving under the influence is guilty of a First Degree Misdemeanor, with a penalty of not more than $1,000 fine or one year imprisonment.
• Any person convicted of a third DUI within 10 years or a fourth or subsequent DUI commits a Third Degree Felony with a penalty of not more than $5,000 fine and/or five years imprisonment.
• The death of any human being or unborn child commits DUI manslaughter, which is a Second Degree Felony with a penalty of not more than a $10,000 fine and/or 15 years imprisonment.
• DUI Manslaughter/Leaving the Scene: A driver convicted of DUI Manslaughter who knew or should have known an accident occurred, and failed to give information or render aid, is guilty of a First Degree Felony, with a penalty of not more than $10,000 fine and/or 30 years imprisonment.
• Vehicular Homicide is a Second Degree Felony with a penalty of not more than a $10,000 fine and/or 15 years imprisonment.
• Vehicular Homicide/Leaving the Scene: A driver convicted of vehicular homicide who left the scene of an accident is guilty of a First Degree Felony with a penalty of not more than a $10,000 fine and/or 30 years imprisonment.

Vehicle Impoundment /Immobilization

Unless the family of someone convicted of a DUI offense has no other transportation, state law provides for the impoundment or immobilization of all of the offender’s vehicles according to the following schedule:

• First DUI conviction – 10 days
• Second DUI conviction within 5 years – 30 days
• Third DUI conviction within 10 years – 90 days
• Fourth DUI conviction – 90 days

The impoundment or immobilization must not occur concurrently with the incarceration of the defendant and must occur concurrently with the revocation of the offender’s driver’s license.

Except for a first offense conviction (unless the BAL is .15 or over) ignition interlock devices are mandatory for all DUI convictions. The period for an ignition interlock is between six months to two years, depending upon the number of offenses.

Ignition interlock devices are mechanical devices that attach to a car to ensure that the driver is not drinking while driving. Before the vehicle’s motor can be started, the driver must first give a breath sample by breathing into the device. If the result shows that the driver has alcohol on his or her breath, the device prevents the engine from being started.

DUI School

DUI School is mandatory for every DUI offense. DUI School is made up of classroom sessions and referral treatment. In the Level One class, a convicted offender is taught how alcohol affects driving and how to be more responsible in the future. All first offenders are sent to the Level One class. The Level Two class is longer and is reserved for repeat offenders and those convicted of DUI Manslaughter or DUI with Bodily Injury.

Each offender also goes through a screening process to determine if there is a need for additional drug or alcohol counseling. If an offender’s BAL is over .15, counseling will be ordered for a period of 16 weeks. If the BAL is less than .15, there may be fewer sessions ordered. An offender has 90 days from the completion of a class to enroll in treatment.

Failing to complete DUI School and/or any recommended follow-up treatment will result in a hold being placed on the offender’s driver’s license record. He or she will not be able to re-instate his or her license if these matters are not completed and properly reported to the state authorities.

Driver License Suspension/Revocation

In addition to any fines and penalties invoked for a DUI conviction, an offender’s driver’s license will be suspended or revoked according to the schedule specified in Florida Statute 322:

• First Conviction: Minimum 180 days revocation, maximum one year.
• Second Conviction Within 5 Years: minimum five years suspension to revocation. (May be eligible for hardship reinstatement after one year.)
• Third Conviction Within 10 Years of the second conviction: minimum 10 years suspension to revocation. (May be eligible for a hardship reinstatement after two years.)
• Fourth Conviction, regardless of when prior convictions occurred; and murder with a motor vehicle: mandatory, permanent revocation. (No hardship reinstatement allowed.)
• DUI with Serious Bodily Injury: minimum three years to revocation.
• DUI Manslaughter: mandatory, permanent revocation. (If no prior DUI related convictions, may be eligible for hardship reinstatement after five years.)

Administrative License Suspension for Persons Under the Age of 21

Florida law authorizes a law enforcement officer having probable cause to believe that a motor vehicle is being driven by a person under the age of 21 while under the influence of alcohol, to detain this person and request that he or she submit to a test to determine his or her BAL. This violation is not considered a criminal offense and the driver will not be arrested. However, the Statute requires the following administrative license suspension:

• First Suspension for Persons Under the Age of 21 With An Alcohol Level .02 or above – 6 months.
• Second or Subsequent Suspensions – 1 year.
• First Suspension for Refusal to Submit to Breath Test – 1 year.
• Second or Subsequent Suspensions for Refusal – 18 months.

The suspension is effective immediately. If the breath or blood alcohol level is .05 or higher the suspension shall remain in effect until completion of a substance abuse evaluation and course.

Exemptions from License Suspension/Revocation

In some cases, an offender may be eligible for a “hardship” or “business purpose only” (BPO) license. A BPO license allows a convicted driver to drive to work, school, or court while his or her license is suspended. Certain conditions must be met, and BPOs are not usually issued until the offender has completed DUI School.

Diversion Programs and DUI Courts

Some jurisdictions in Florida maintain Diversion Programs for first time offenders. These programs can keep a DUI charge from showing up on an offender’s record. As long as he or she follows the program’s rules and requirements, the State may either dismiss the DUI charge or amend it to reckless driving.

DUI Courts are designed to address multiple DUI offenders with programs that help repeat offenders deal with their drug or alcohol addictions. The programs may include random drug or alcohol testing, mandatory jail time, therapy and counseling sessions, and/or regular meetings with a probation officer. If the offender completes all conditions, he or she “graduates” from the program. In some jurisdictions this means that DUI charges are dropped. In others, it means that the offender is no longer required to go to jail or be on probation.

Three Reasons to Turn to Suskauer Feuer, LLC for DUI Defense

1. Our lawyers are active in the West Palm Beach and Florida legal communities and remain abreast of the latest laws, techniques, and strategies surrounding criminal defense. The reputation that we have with judges and prosecutors is a benefit to our clients.
2. Our defense attorneys have served thousands of clients, including many DUI cases in Palm Beach County for more than 15 years.
3. Our lawyer is a former Public Defender in Palm Beach County’s Fifteenth Judicial Circuit.

Contact an Experienced, Aggressive West Palm Beach DUI Attorney

If you are arrested for DUI, you should seek legal counsel immediately. While many DUI penalties are statutorily mandated, a knowledgeable attorney can help you mitigate certain sanctions and help you with your defense. In most cases, a judge has a certain amount of discretion and can impose or withhold certain conditions depending upon the nature of the offense. Often, alternative sentencing can be arranged as part of a plea deal between your attorney and the prosecutor.

We understand Florida’s DUI statutes and stand ready to aid you, should you find yourself facing a DUI charge and arrest. If you have questions regarding DUI or criminal defense litigation, please do not hesitate to contact us for a free consultation and case evaluation. We are happy to meet or speak with you anytime. Our legal team is experienced, aggressive, compassionate, and will fight for your rights!